Peeler v. Reali et al

Filing 11

ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/21/16 ORDERING that this action is DISMISSED without prejudice for failure to state a claim. CASE CLOSED. (Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRICE ANTHONY PEELER, 12 13 14 15 No. 2:16-cv-0582 CKD P Plaintiff, v. ORDER KEVIN REALI, et al., Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to 18 42 U.S.C. § 1983. On May 20, 2016, plaintiff’s original complaint was dismissed with thirty 19 days’ leave to amend. (ECF No. 5.) Plaintiff’s amended complaint is now before the court for 20 screening. See 28 U.S.C. § 1915A(a). (ECF No. 10.) Plaintiff has consented to Magistrate Judge 21 jurisdiction over all proceedings this action. (ECF No. 4.) 22 Plaintiff’s original complaint alleged that Sacramento County Detective Reali caused 23 plaintiff to be maliciously prosecuted on a criminal firearm count. At trial, plaintiff was acquitted 24 of this count, though found guilty of other counts stemming from the same incident. (See ECF 25 No. 5.) In the amended complaint, plaintiff names additional defendants in Sacramento County 26 law enforcement, including the prosecutor in plaintiff’s case, Aaron Miller. (ECF No. 10.) 27 Plaintiff asserts that Miller maliciously amended the information to charge him with two 28 additional felonies after plaintiff filed an excessive force claim against the officers involved in 1 1 plaintiff’s arrest. (Id. at 20-21, 31-36, 42.) Plaintiff was subsequently found not guilty of one of 2 these charges. (Id. at 83.) Plaintiff alleges that malicious prosecution is “persistent and 3 widespread” in Sacramento County, amounting to a municipal policy. (Id. at 17.) 4 Having reviewed the amended complaint and attached records, the undersigned concludes 5 that it fails to cure the defects of the original complaint as discussed in the May 20, 2016 6 screening order. Plaintiff fails to state a malicious prosecution claim under the standard in 7 Freeman v. City of Santa Ana, 68 F.3d 1180 (9th Cir. 1995) and has not alleged an 8 unconstitutional county policy. Because it appears that another round of amendment would be 9 futile, the undersigned will dismiss this action for failure to state a claim. 10 Accordingly, IT IS HEREBY ORDERED that this action is dismissed without prejudice 11 for failure to state a claim. 12 Dated: September 21, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 2 / peel0582.fac 20 21 22 23 24 25 26 27 28 2

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