Smith v. Mirelez et al, No. 1:2015cv01343 - Document 12 (E.D. Cal. 2017)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Case without Leave to Amend signed by Magistrate Judge Michael J. Seng on 03/21/2017. Referred to Judge Ishii; Objections to F&R due by 4/10/2017.(Flores, E)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES E. SMITH, 12 Plaintiff, 13 14 v. RUDY MIRELEZ, et al., 15 Defendants. CASE NO. 1:15-cv-1343-AWI-MJS FINDINGS AND RECOMMENDATION TO DISMISS CASE WITHOUT LEAVE TO AMEND (ECF NO. 10) FOURTEEN-DAY DEADLINE 16 17 18 Plaintiff is proceeding pro se and in forma pauperis in this action brought pursuant 19 20 21 22 23 24 25 to 42 U.S.C. § 1983. Plaintiff’s original and First Amended Complaints were dismissed with leave to amend on January 12, 2016, and February 26, 2016, respectively. 1 (ECF Nos. 6, 9.) In the last screening order, Plaintiff was given one final opportunity to state a claim. His November 9, 2016, Second Amended Complaint is now before the Court for screening. I. The in forma pauperis statute provides, “Notwithstanding any filing fee, or any 26 27 28 Screening Requirement portion thereof, that may have been paid, the court shall dismiss the case at any time if 1 This case was reassigned to the undersigned on January 9, 2017. (ECF No. 11.) 1 the court determines that . . . the action or appeal . . . fails to state a claim upon which 2 relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 3 II. Pleading Standard 4 A complaint must contain “a short and plain statement of the claim showing that 5 the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 6 are not required, but “[t]hreadbare recitals of the elements of a cause of action, 7 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 8 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 9 Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief 10 that is plausible on its face.” Id. Facial plausibility demands more than the mere 11 possibility that a defendant committed misconduct and, while factual allegations are 12 accepted as true, legal conclusions are not. Id. at 677-78. 13 III. Plaintiff’s Allegations 14 Plaintiff brings this action against Defendants Officer Rudy Mirelez, Devan M. 15 Portillo, Prosecutor Eugene Action, Natalie N. Gilbertson, Steve Dahlem, and the 16 Mariposa County Council. 17 Plaintiff’s allegations may be fairly summarized as follows: 18 Plaintiff alleges that on June 27, 2013, he was arrested for unspecified conduct 19 against his stepdaughter. During his arrest, Plaintiff was not given a Miranda warning 20 and was forced to provide a DNA sample. He was then transferred to the county jail 21 where he was refused medication for his diabetes, and he had to use his credit cards to 22 make bail. 23 Plaintiff denies the charges brought against him. On December 3, 2013, a 24 preliminary hearing was held during which the victim changed her original statement. 25 The three “court officers” did not question the victim about this changed testimony. When 26 Plaintiff asked his attorney why they had not yet gone to trial, the attorney told Plaintiff 27 28 2 1 that he waived his right to a speedy trial. Plaintiff claims he did not know he had waived 2 this right. 3 On September 2, 2014, a trial was held resulting in a mistrial, and a second trial 4 was then scheduled for May 15, 2015. Plaintiff did not believe his attorney had his best 5 interest at heart and sought to remove him. Plaintiff ultimately plead No Contest and was 6 assessed a $250 fine. 7 As a result of the charges brought against him and the delayed criminal 8 proceedings, Plaintiff experienced emotional stress, he lost 70 pounds, and his 9 relationship with his wife and stepdaughter suffered. 10 Plaintiff claims his Fifth Amendment rights were violated when he was forced to 11 evacuate his home; his Eighth Amendment rights were violated by the continued 12 postponement of his trial; and his Fourteenth Amendment rights were violated because 13 he was not provided due process and equal protection. Plaintiff seeks $175,000 in 14 damages. 15 IV. Analysis 16 A. Linkage 17 Section 1983 “provides a cause of action for the deprivation of any rights, 18 privileges, or immunities secured by the Constitution and laws of the United States.” 19 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). 20 Section 1983 is not itself a source of substantive rights, but merely provides a method for 21 vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 22 (1989). 23 To state a claim under § 1983, a plaintiff must allege two essential elements: 24 (1) that a right secured by the Constitution or laws of the United States was violated and 25 (2) that the alleged violation was committed by a person acting under the color of state 26 law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 27 1243, 1245 (9th Cir. 1987). 28 3 1 Plaintiff must also demonstrate that each named defendant personally 2 participated in the deprivation of his rights. Iqbal, 556 U.S. 662, 676-77 (2009); Simmons 3 v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 4 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 5 2002). Generally, private parties are not acting under color of state law, and their 6 conduct does not constitute state action. See Price v. Hawaii, 939 F.2d 702, 707-08 (9th 7 Cir.1991). 8 Plaintiff’s Second Amended Complaint does not affirmatively link the conduct of 9 any of the named Defendants to a violation of Plaintiff’s constitutional rights. In addition, 10 while the Court has gleaned from the pleading that Defendant Rudy Mirelez is an officer 11 and Eugene Action is an attorney, there are no facts identifying what role, if any, 12 Defendants Devan M. Portillo, Natalie N. Gilbertson, and Steve Dahlem had in the 13 pursuit of criminal charges against Plaintiff. He was previously informed of these 14 requirements. For these reasons alone, Plaintiff’s pleading must be dismissed. 15 B. Fifth Amendment 16 The Fifth Amendment provides, in relevant part, that “No person shall be … 17 deprived of life, liberty, or property, without due process of law.” U.S. Const., amend. V. 18 Plaintiff claims his Fifth Amendment rights were violated when he was forced to 19 evacuate his home, presumably after he was arrested. This claim fails not only because 20 it is not directed against any particular Defendant, but also because it fails to allege how 21 Plaintiff was denied due process. 22 C. 23 Plaintiff asserts his “Eighth Amendment” rights were violated by the continued 24 postponement of his trial. This claim is more accurately classified as a Sixth Amendment 25 claim, which states: 26 27 28 Sixth Amendment In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously 4 1 ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. 2 3 4 U.S. Const., amend. 6. 5 The speedy trial “right may attach before an indictment and as early as the time of 6 arrest and holding to answer a criminal charge[.]” United States v. Gouveia, 467 U.S. 7 180, 190 (1984) (quotations and citations omitted). “[I]n determining whether a particular 8 defendant has been deprived of his right” to a speedy trial, the Supreme Court has 9 “identif[ied] four factors: Length of delay, the reason for the delay, the defendant’s 10 assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 11 530 (1972). But “none of the four factors [is a] necessary or sufficient condition to the 12 finding of a deprivation of the right of speedy trial. Rather, they are related factors and 13 must be considered together with such other circumstances as may be relevant.” Id. at 14 533. The “courts must still engage in a difficult and sensitive balancing process.” Id. 15 16 17 18 19 20 21 Plaintiff’s bare allegations are insufficient to proceed on this claim. He provides no details concerning the cause for the delay or what transpired during the delay between his arrest and the entry of his plea. No information is given about whether Plaintiff asserted his right to a speedy trial and whether he received an unfavorable decision. And no information is given about whether he appealed the unfavorable decision to the appellate division of the Mariposa County Superior Court. Such information is necessary in determining whether, at this juncture, this Court is the proper venue to address 22 Plaintiff’s case. See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 483 n.16 (1983) 23 (quotations and citations omitted) (“it was very early established that the Court will not 24 25 decide federal constitutional issues raised here for the first time on review of state court decisions”). 26 27 28 5 1 D. 2 The Fourteenth Amendment states in pertinent part: “No State shall . . . deprive 3 any person of life, liberty, or property, without due process of law; nor deny to any 4 person within its jurisdiction the equal protection of the laws.” U.S. Const., amend. 14, § 5 1. “Because the Amendment is directed at the States, it can be violated only by conduct 6 that may be fairly characterized as state action.” Lugar v. Edmondson Oil Co., 457 U.S. 7 922, 923-24 (1982) (quotations omitted). 8 Fourteenth Amendment 1. Due Process Claim 9 “[T]he Due Process Clause of the Fourteenth Amendment was intended to 10 prevent government from abusing [its] power, or employing it as an instrument of 11 oppression[.]” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 12 (1989) (quotations and citations omitted and modification in original). A claim of due 13 process may be substantive or procedural. “To establish a violation of substantive due 14 process, a plaintiff must first show a deprivation of some fundamental right or liberty 15 interest[.]” Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1061 (9th Cir. 2006); see 16 Reno v. Flores, 507 U.S. 292, 302 (1993). And “[t]o establish a violation of procedural 17 due process a plaintiff must demonstrate: (1) a deprivation of a constitutionally protected 18 liberty or property interest, and (2) a denial of adequate procedural protections.” Tutor- 19 Saliba Corp., 452 F.3d at 1061 (citation omitted) 20 As to Plaintiff’s due process claim, he fails to identify a fundamental or protected 21 right or liberty interest which was deprived by Defendants without fair process. See 22 Bagent v. Pierce, 2008 WL 5135761, at *4 (E.D. Cal. Dec. 8, 2008), report and 23 recommendation adopted, 2009 WL 250526 (E.D. Cal. Feb. 2, 2009) (No. 24 1:06CV01842LJOSMSPC) (“Plaintiff has neither identified the existence of a protected 25 interest at stake, nor alleged the deprivation of that interest by either Defendant without 26 fair process.”). The allegations are conclusory, scant of factual matter, and fall short of 27 stating a due process claim. 28 6 1 2. Equal Protection Claim 2 “[T]he purpose of the equal protection clause of the Fourteenth Amendment is to 3 secure every person within the State’s jurisdiction against intentional and arbitrary 4 discrimination, whether occasioned by express terms of a statute or by its improper 5 execution through duly constituted agents.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 6 564 (2000). “To state a claim . . . for a violation of the Equal Protection Clause of the 7 Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or 8 purpose to discriminate against the plaintiff based upon membership in a protected 9 class.” Survine v. Cottle, 609 F. App’x 515, 516 (9th Cir. 2015) (quotations and citation 10 omitted). But: 11 [i]f the action in question does not involve a suspect classification, a plaintiff may establish an equal protection claim by showing that similarly situated individuals were intentionally treated differently without a rational relationship to a legitimate state purpose. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); San Antonio School District v. Rodriguez, 411 U.S. 1 (1972); Squaw Valley Development Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004); SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002). To state an equal protection claim under this theory, a plaintiff must allege that: (1) the plaintiff is a member of an identifiable class; (2) the plaintiff was intentionally treated differently from others similarly situated; and (3) there is no rational basis for the difference in treatment. Village of Willowbrook, 528 U.S. at 564. 12 13 14 15 16 17 18 19 20 Lee v. Scribner, 2010 WL 1328691, at *5-6 (E.D. Cal. Apr. 2, 2010). 21 Plaintiff’s equal protection claim also fails. He does not allege membership with a 22 protected or identifiable class, he does not link this claim to any Defendant, and he does 23 not claim that he was treated differently without a legitimate purpose. 24 E. 25 Plaintiff was previously informed that his many conclusory allegations are 26 insufficient to state a claim. (See ECF No. 9 at 12.) Plaintiff’s Second Amended 27 Complaint continues to include those same allegations without providing further detail. Conclusory Allegations 28 7 1 These allegations include that Plaintiff was not given a Miranda warning, Plaintiff was 2 forced to provide a DNA sample, and Plaintiff was denied medication for his diabetes 3 while at county jail. Without more, they continue to fail to set forth cognizable claims. 4 Iqbal, 556 U.S. at 678. 5 VI. Conclusion and Order 6 In the Court’s last screening order, Plaintiff was informed that he would be 7 provided one last opportunity to state a claim. For the reasons set forth above, his 8 complaint fails for a third time to assert a viable claim against any Defendant. 9 A party’s “repeated failure to cure deficiencies” constitutes “a strong indication 10 that the [party] has no additional facts to plead” and “that any attempt to amend would be 11 futile[.]” See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 988, 1007 (9th Cir. 12 2009) (internal quotation marks omitted) (upholding dismissal of complaint with prejudice 13 when there were “three iterations of [the] allegations — none of which, according to [the 14 district] court, was sufficient to survive a motion to dismiss”); see also Simon v. Value 15 Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th Cir. 2000) (affirming dismissal without 16 leave to amend where plaintiff failed to correct deficiencies in complaint, where court had 17 afforded plaintiff opportunities to do so, and had discussed with plaintiff the substantive 18 problems with his claims), amended by 234 F.3d 428, overruled on other grounds by 19 Odom v. Microsoft Corp., 486 F.3d 541, 551 (9th Cir. 2007); Plumeau v. Sch. Dist. # 40 20 Cnty. of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend appropriate 21 where further amendment would be futile). 22 23 24 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed without leave to amend. These Findings and Recommendations are submitted to the United States District 25 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 26 fourteen (14) days after being served with these Findings and Recommendations, any 27 party may file written objections with the Court and serve a copy on all parties. Such a 28 8 1 document should be captioned “Objections to Magistrate Judge’s Findings and 2 Recommendations.” Any reply to the objections shall be served and filed within fourteen 3 (14) days after service of the objections. The parties are advised that failure to file 4 objections within the specified time may result in the waiver of rights on appeal. 5 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 6 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 9 IT IS SO ORDERED. Dated: March 21, 2017 /s/ 10 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9