Peeler v. Reali et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 03/06/18 ORDERING that this case be randomly assigned to a district court judge. Also, RECOMMENDING that this action be dismissed without prejudice for failure to state a claim. Assigned and referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BRICE ANTHONY PEELER,
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Plaintiff,
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No. 2:16-cv-00582 CKD P
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
KEVIN REALI, et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this federal civil
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rights action pursuant to 42 U.S.C. § 1983.
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I.
Procedural History
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On May 20, 2016, plaintiff’s original complaint was dismissed with leave to amend. ECF
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No. 5. Thereafter, plaintiff’s amended complaint alleging false arrest and malicious prosecution
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was dismissed without prejudice by the undersigned based on plaintiff’s consent to proceed
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before a United States Magistrate Judge. ECF Nos. 4, 10. On October 25, 2016, plaintiff
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appealed the dismissal of his amended complaint to the Ninth Circuit Court of Appeals. ECF No.
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17.
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On January 22, 2018, the Ninth Circuit vacated and remanded plaintiff’s case in light of
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its decision in Williams v. King, 875 F.3d 500, 503-04 (9th Cir. 2017), which requires all parties,
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including unserved defendants, to consent to proceed before a magistrate judge. ECF No. 25.
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The Court of Appeals concluded that the undersigned lacked jurisdiction to dismiss plaintiff’s
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amended complaint because defendants had not consented to proceed before the magistrate judge.
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Id. Accordingly, the undersigned will proceed to re-screen plaintiff’s first amended complaint in
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light of the Ninth Circuit’s mandate. ECF No. 26.
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II.
Re-Screening of First Amended Complaint
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Plaintiff’s original complaint alleged that Sacramento County Detective Reali caused
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plaintiff to be maliciously prosecuted on a criminal firearm count. At trial, plaintiff was acquitted
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of this count, though found guilty of other counts stemming from the same incident. See ECF
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No. 5. In the first amended complaint, plaintiff names additional defendants in Sacramento
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County law enforcement, including the prosecutor in plaintiff’s case, Aaron Miller. ECF No. 10.
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Plaintiff asserts that Miller maliciously amended the information to charge him with two
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additional felonies after plaintiff filed an excessive force claim against the officers involved in
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plaintiff’s arrest. Id. at 20-21, 31-36, 42. Plaintiff was subsequently found not guilty of one of
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these charges. Id. at 83. Plaintiff alleges that malicious prosecution is “persistent and
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widespread” in Sacramento County, amounting to a municipal policy. Id. at 17.
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III.
Analysis
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Having reviewed the first amended complaint and attached records, the undersigned
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concludes that it fails to cure the defects of the original complaint as discussed in the May 20,
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2016 screening order. Plaintiff fails to state a malicious prosecution claim under the standard in
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Freeman v. City of Santa Ana, 68 F.3d 1180 (9th Cir. 1995) and has not alleged an
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unconstitutional municipal policy. Because it appears that another round of amendment would be
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futile, the undersigned will recommend dismissal of this action for failure to state a claim.
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Accordingly, IT IS HEREBY ORDERED that this case be randomly assigned to a district
court judge.
IT IS FURTHER RECOMMENDED that this action be dismissed without prejudice for
failure to state a claim.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
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objections shall be served and filed within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: March 6, 2018
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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12/peel0582.f&r.docx
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