Cross v. Kings County District Attorney's Office et al

Filing 23

FINDINGS and RECOMMENDATIONS Recommending Dismissal of 22 Action for Failure to State a Cognizable Claim for Relief signed by Magistrate Judge Stanley A. Boone on 03/31/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEROME LEE CROSS,

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Plaintiff,

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v.
KINGS COUNTY DISTRICT
ATTORNEY’S OFFICE, et al.,

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Defendants.

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Case No.: 1:14-cv-01073-AWI-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A COGNIZABLE
CLAIM FOR RELIEF
[ECF No. 20]

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Plaintiff Jerome Lee Cross is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Now pending before the Court is Plaintiff’s third amended complaint, lodged March 4, 2015,
and filed by order issued concurrently herewith. (ECF No. 20.)

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I.

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SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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A complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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While housed at the Kings County jail, Plaintiff’s cell was searched and a bag of fruit pulp was

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discovered on the side of the toilet. Plaintiff took responsibility for the fruit pulp believing the

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harshest punishment he could receive was a three week lock-down without commissary, dayroom or

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visits. Plaintiff received a write-up and was later arraigned on criminal charges of possession of an

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alcoholic beverage in violation of California Penal Code section 4573.8-a felony. Plaintiff was never

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read his Miranda rights, yet a statement of Plaintiff stating “fuck it! It’s on,” was used against him at

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trial by officer McMahan in retaliation.

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Officer McMahan took samples and photographs then destroyed the substance, but later took

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photographs of inmates in cell blocks and toilets. This information was forwarded to officer Tolbert,

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who then maliciously recommended that the district attorney file charges. Tolbert’s intent was to
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deprive Plaintiff of his constitutional rights for the sole purpose of keeping jailhouse numbers high to

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build a new jail facility.

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Officers Tolbert and McMahan had no probable cause to recommend chargers to be filed

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against Plaintiff. The District Attorney’s office maliciously filed charges against Plaintiff even though

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officer’s unlawfully destroyed evidence.

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III.

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DISCUSSION

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A.

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Claims by pretrial detainees, such as Plaintiff, are analyzed under the Fourteenth Amendment

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Due Process Clause. See, e.g., Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir.

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2002). In the Ninth Circuit, a claim for malicious prosecution is not cognizable under 42 U.S.C. §

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1983 if process is available within the state judicial system to provide a remedy. Usher v. City of Los

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Angeles, 828 F.2d 556, 561 (9th Cir. 1987) (citations omitted). However, if malicious prosecution is

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“conducted with the intent to deprive a person of equal protection of the laws or is otherwise intended

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to subject a person to a denial of constitutional rights,” a malicious prosecution claim under § 1983 is

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available. Id. at 562 (citing Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985)). To state a claim

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for malicious prosecution in California under § 1983, a plaintiff must plead the “(a) the initiation of

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criminal prosecution, (b) malicious motivation, and (c) lack of probable cause.” Usher, 828 F.2d at

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562. A criminal defendant can maintain a malicious prosecution claim against police officers who

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wrongfully caused his prosecution. Smith v. Almada, 640 F.3d 931, 938 (9th Cir. 2011). Further,

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because the state tort common law has been incorporated into the elements of a § 1983 malicious

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prosecution claim, a plaintiff must generally show that the prior prosecution terminated in a manner

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that indicates innocence, i.e. a favorable termination. Awabdy v. City of Adelanto, 368 F.3d 1062,

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1066-1068 (9th Cir. 2004).

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Malicious Prosecution

Plaintiff’s claim of malicious prosecution fails. First, Plaintiff admitted that he possessed fruit

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pulp. The fact that Plaintiff believed he would be punished only administratively within the jail

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facility is immaterial. Second, Plaintiff was charged and convicted of possession of an alcoholic

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beverage. Thus, there is no basis to Plaintiff’s claim that he was maliciously prosecuted without

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probable cause.

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B.

Conspiracy

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To state a claim for conspiracy under section 1983, Plaintiff must show the existence of an

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agreement or a meeting of the minds to violate his constitutional rights, and an actual deprivation of

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those constitutional rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010); Franklin v. Fox, 312

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F.3d 423, 441 (9th Cir. 2001).

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Plaintiff alleges in conclusory fashion that a conspiracy existed to deprive him of his

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constitutional rights afforded by the Fourteenth Amendment. Plaintiff’s mere allegation of a

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conspiracy without factual specificity is insufficient to state a claim. Sanchez v. City of Santa Ana,

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936 F.2d 1027, 1039 (9th Cir. 1990). Because Plaintiff has not alleged facts supporting an inference

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of a conspiracy among Defendants his claim fails.

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C.

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The Equal Protection Clause requires that persons who are similarly situated be treated alike.

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City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Hartmann v. California

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Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 1021,

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1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). To state a claim, Plaintiff

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must show that Defendants intentionally discriminated against him based on his membership in a

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protected class. Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at 1030; Serrano v. Francis, 345 F.3d

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1071, 1082 (9th Cir. 2003); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001).

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Equal Protection

Plaintiff does not allege facts showing an equal protection violation. Here, Plaintiff does not

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allege membership in any protected class that could form the basis of an equal protection claim.

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Plaintiff also fails to allege that a particular defendant intentionally treated plaintiff differently from

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others similarly situated. Accordingly, Plaintiff fails to allege an equal protection violation.

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D.

Further Leave to Amend

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In light of the fact that the Court previously notified Plaintiff of the deficiencies and granted

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leave to amend, further amendment is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.

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2000); Noll v. Carlson, 809 F.2d 1446, 1448-1449 (9th Cir. 1987).
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IV.

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CONCLUSION AND RECOMMENDATION

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Based on the foregoing, Plaintiff’s third amended complaint fails to state any cognizable

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claims for relief under section 1983. As Plaintiff has had multiple opportunities to cure the

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deficiencies identified by the Court and has failed to do so, further leave to amend shall not be granted.

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Lopez v. Smith, 203 F.3d at 1130.
Accordingly, it is HEREBY RECOMMENDED that his action be DISMISSED based on

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Plaintiff’s failure to state a cognizable section 1983 claim.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days

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after being served with these Findings and Recommendations, Plaintiff may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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March 31, 2015
UNITED STATES MAGISTRATE JUDGE

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