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Ortiz v. Ortiz

United States District Court, E.D. California

October 31, 2019

JOSE ORTIZ, Plaintiff,
v.
FANNY ORTIZ, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM (ECF NO. 1) OBJECTIONS DUE WITHIN THIRTY DAYS

         Jose Ortiz (“Plaintiff”), a state prisoner, is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff's complaint, filed on October 8, 2019.

         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 married Fanny Ortiz in October 1993, and they were divorced in December 2000. In 2002, Plaintiff bought a Ford Expedition. Plaintiff had been sent to prison based on Ms. Ortiz' false testimony and gave the vehicle to his mother. He also had a notarized letter and signed the pink slip over to his mother.

         In July 2011, Ms. Ortiz transferred the vehicle into her own name although Plaintiff had not signed the pink slip. The paperwork that Ms. Ortiz presented to the Department of Motor Vehicles was not genuine. On August 16, 2011, Ms. Ortiz reported the vehicle stolen. Ms. Ortiz went to Los Angeles and tried to have his mother arrested. Plaintiff contends that the Los Angeles police department should have taken a report and the matter should have gone to civil court.

         In November 2012, Ms. Ortiz sold the vehicle to a private party in Bell Gardens, California. Plaintiff has been aware of this situation since late December 2015. He has reported it to correctional officers at the prison who just laughed at him and said, “so.”

         On August 16, 2019, Plaintiff contacted the Lindsay Police Department and got a response from Lt. Nave. Plaintiff asks the Court to find that the statute of limitations has been tolled until August 16, 2019 because that is when he had full knowledge of the facts sufficient to put a reasonable person on notice.

         Plaintiff brings this action against Fanny Ortiz, the Los Angeles Police Department, Officer Perez, and the Lindsey Police Department alleging violations of the Fifth and Fourteenth Amendments, Bills of Attainer and Ex Post Facto. He is seeking to be compensated for the full value of his vehicle and for ...


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