United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT SECOND
AMENDED COMPLAINT BE DISMISSED WITH PREJUDICE FOR FAILURE TO
STATE A CLAIM (ECF NO. 13) OBJECTIONS DUE WITHIN THIRTY
DAYS
Floyd
Foster Jr. (“Plaintiff”), proceeding pro
se and in forma pauperis, filed this civil
rights action pursuant to 42 U.S.C. § 1983. On July 29,
2019, a screening order was filed finding that Plaintiff had
failed to state a cognizable claim and granting Plaintiff
leave to file an amended complaint. (ECF No. 5.) On August
28, 2019, Plaintiff's first amended complaint was
screened and it was found that Plaintiff had failed to state
a cognizable claim. (ECF No. 8.) Plaintiff was granted one
final opportunity to file a second amended complaint within
thirty days. (Id.) After Plaintiff did not file an
amended complaint in compliance with the August 28, 2019
screening order, findings and recommendations issued on
October 3, 2019. (ECF No. 10.) The findings and
recommendations recommending dismissing this action for
Plaintiff's failure to comply, failure to prosecute, and
failure to state a claim. (Id.) Plaintiff filed
objections on October 15, 2019, and sought an extension of
time to file his second amended complaint. (ECF No. 11.) On
October 17, 2019, the findings and recommendations was
vacated and Plaintiff was ordered to file a second amended
complaint by November 1, 2019. (ECF No. 12.) Currently before
the Court is Plaintiff's second amended complaint, filed
October 18, 2019. (ECF No. 13.)
I.
SCREENING
REQUIREMENT
The
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that “fail[] to state a claim on
which relief may be granted, ” or that “seek[]
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
A
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief. . .
.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Moreover, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of Plaintiff's
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002).
Prisoners
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To
survive screening, Plaintiff's claims must be facially
plausible, which requires sufficient factual detail to allow
the Court to reasonably infer that each named defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
at 678-79; Moss v. U.S. Secret Service, 572 F.3d
962, 969 (9th Cir. 2009). The “sheer possibility that a
defendant has acted unlawfully” is not sufficient, and
“facts that are ‘merely consistent with' a
defendant's liability” falls short of satisfying
the plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
II.
COMPLAINT
ALLEGATIONS
The
Court accepts Plaintiff's allegations in the complaint as
true only for the purpose of the sua sponte
screening requirement under 28 U.S.C. § 1915.
Plaintiff
is currently in the custody of the California Department of
Corrections and Rehabilitation (“CDCR”) and is
housed at Salinas Valley State Prison. Plaintiff brings this
action against Parole Agent L. Wallace for the failure to
release a parole hold while he was a pretrial detainee being
held at the Fresno County Jail on new charges.
Plaintiff
was arrested for driving under the influence on October 9,
2017. (ECF No. 7 at 16.[1]) A parole violation was filed in No.
P17900013-2 and Plaintiff's parole was revoked on October
17, 2017. (Id. at 34-36; ECF No. 13 at 5.) The
matter was set for a hearing at the request of Parole Agent
Jorge Castro. (ECF No. 7 at 37.) On October 20, 2017,
Plaintiff denied the parole violation and his supervision was
formally revoked. (Id. at 38.) The parole violation
hearing was continued pending new charges being filed.
(Id.) Plaintiff was remanded into custody with no
bail set. (Id.)
On
October 24, 2017 a complaint was filed charging Plaintiff
with felony charges of driving under the influence with a
third strike alleged and a misdemeanor of driving while his
license was suspended or revoked in State of California
v. Floyd Foster Jr., No. F17906222. (Id. at
15-16, 20.) On October 27, 2017, Parole Officer Wallace
withdrew the parole violation and Plaintiff was released on
parole. (Id. at 10-11, 39; ECF No. 13 at 5-6.) On
this same date, Plaintiff was arraigned on the charges in No.
F17906222 and was remanded into custody with bail set at
$289, 500.00. (ECF No. 7 at 20-21; ECF No. 13 at 6.) The
state court ordered that the parole hold be released. (ECF
No. 13 at 6.) Defendant Wallace did not order the parole hold
released although ordered to do so. (Id.)
From
October 27, 2017 to December 17, 2017, Plaintiff attempted to
bail out of jail and was unable to do so due to the parole
hold. (Id.) On December 17, 2017, Plaintiff informed
the state court that the parole hold had not been removed and
he was unable to be released on bail. (Id.) On
December 22, 2017, the minute order dated October 27, 2017
issued in No. P17900013-2 releasing the parole hold was
resubmitted to the jail. (Id., ECF No. 7 at 40.) On
January 4, 2018, a copy of the Court's December 22, 2017
order was mailed to all parties. (Id.) On January
17, 2018, the maximum date upon which Plaintiff could he
detained on the parole hold was reached. (ECF No. 13 at 6.)
On
March 16, 2018, Plaintiff moved for an in-patient program in
No. F17906222. (ECF No. 7 at 26.) On March 21, 2018,
Plaintiff was ordered to remain in custody. (Id. at
26-27.)
On
April 11, 2018, a motion for bail reduction was denied
without prejudice in No. F17906222. (Id. at 27.) On
June 20, 2018, Plaintiff's counsel requested that the
preliminary hearing be set. (Id. at 29.) The
preliminary hearing was continued several times at the
request of the People and Plaintiff. (Id. at ...