Fuery v. Cherry
| Decision Date | 04 September 2018 |
| Docket Number | No. 2:18-cv-00982-KJM-CKD,2:18-cv-00982-KJM-CKD |
| Court | U.S. District Court — Eastern District of California |
| Parties | JOHN J. FUERY, Plaintiff, v. MARK CHERRY, et al., Defendants. |
Among other defendants,1 plaintiff John Joseph Fuery sues A. Asterlin, Mark Cherry, A. Stanley Kubochi, Hubert Chen, Jeff Harry, Stephanie Maroun and Jason Stratton (collectively "defendants") for alleged due process violations under the Fifth and Fourteenth Amendments and for violations of the Americans with Disabilities Act ("ADA") and 29 U.S.C. § 794 ("Rehabilitation Act"). Compl., ECF. No. 1; Compl. Exs. A-E1 ("Allegations") at 12, ECF No. 1-1. Defendant A. Asterlin separately moves to dismiss with prejudice and without leave to amend. ECF No. 6-1. The remaining defendants named above jointly move to dismiss all allegations against them. ECF No. 15-1.
Fuery did not file a timely opposition to either motion or appear at hearing. As explained below, defendants' motions to dismiss are GRANTED. The court grants Fuery leave to amend only as to part of his ADA and Rehabilitation Act claim, his allegations against Hubert Chen and his allegations against Jeff Harry. The court otherwise denies Fuery leave to amend.
In considering this motion, the court takes the following allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Fuery, a pro se litigant, sues defendants under 42 U.S.C. § 1983, which provides "[e]very person who, under color of any [state law] . . . subjects, or causes to be subjected" a U.S. citizen or person within U.S. jurisdiction "to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." See Compl. at 3 (); Allegations at 1, 3. Fuery alleges several constitutional and statutory violations in his complaint, filed March 18, 2018, all of which stem from his work as a criminal defense attorney and from criminal legal actions taken against him.
The court details Fuery's allegations against each moving defendant below.
Fuery identifies Asterlin as a court-appointed defense attorney for Fuery's former client Bagshaw. Allegations at 6. Fuery alleges Asterlin "instituted a California Penal Code § 1368 () against Mr. Bagshaw causing Mr. Bagshaw to be incarcerated for 5 and one half months" without Bagshaw's receiving "treatment of any kind." Id at 20. Fuery contends Asterlin "invoked a fraudulent PC 1368 against" Bagshaw. Id. at 6.
The court construes this allegation as an assertion that Asterlin committed legal malpractice or professional negligence against Bagshaw by requesting a mental competency hearing under California Penal Code section 1368 that resulted in Bagshaw's detention for five-and-a-half months. Fuery also alleges Asterlin "was extremely abusive and unreceptive to Mr. Fuery's attempts to educate him on the truth of Bagshaw's criminal case, suggesting to Fuery that he "should just substitute in as Mr. Bagshaw's attorney." Id. at 20.
Fuery identifies Cherry as a Sacramento County Sheriff's Department Deputy. Allegations at 3. Fuery alleges "Sheriff's Department's members, including and on behalf of [Cherry], colluded under the guise of official capacity to deprive [Fuery] of his [l]ife and [l]iberty since 2014." Id. Cherry "fabricated" a statement "to a Judge in the Sacramento County Superior Court." Id. at 4. Cherry wrote "a fraudulent probable cause statement" in relation to Fuery's client Bagshaw. Id. at 8. Fuery also alleges Cherry falsified evidence "to illegally search and seize [Fuery's] client Mr. Bagshaw's legally grown [m]edical [m]arijuana." Id. at 15.
Cherry, along with "another Deputy, pa[id] Mr. Fuery a menacing visit at the internal back door of [Fuery's] office." Id. at 8, 13 (). Cherry had explained his presence as part of a "welfare check" request, but neither deputy answered Fuery's question as to who called in the request. Id. at 13-14. Fuery suspected the deputies "were attempting to interfere with" the upcoming suppression hearing, "then ended the interaction by declaring that the two" deputies had no further business at Fuery's office. Id. at 14.
Cherry also wrote a statement that "Fuery had told Deputy Cherry that [Fuery] received [cannabis extract] contraband in exchange for legal fees from Mr. Bagshaw, which resulted in the Bagshaw Motion to Suppress being cancelled and [Fuery's] being accused that as Mr. Bagshaw's [a]ttorney that [Fuery] was now a potential witness for the [p]rosecution." Id. at 8, 14 (bold removed). "Plain and simple, Deputy Cherry lied." Id. at 15. Fuery "had only ever worked Pro-Bono for Mr. Bagshaw." Id.
Fuery alleges Cherry violated Fuery's constitutional right "to be free from [s]lander and [l]ibel," and Cherry's lies harmed Fuery "by compromising Mr. Bagshaw, thereby leading to a loss of employment for" Fuery. Id. Cherry also violated Fuery's and Bagshaw's constitutional "Due Process [r]ights" through his "intimidatory actions." Id. at 16.
Fuery alleges Kubochi, the Pro Per Coordinator for the Sacramento County Superior Court, disallowed Fuery's first motion to continue "simply because there was no hearing date/time stated on the form." Allegations at 3, 24. Fuery alleges he "has been disallowed from setting [d]iscovery hearing dates, and from setting [m]otions to [c]ontinue or to [e]xtend [t]ime . . . ." Id. In 2018, Kubochi denied Fuery's discovery motions and motion to extend time with no notice. Id. Fuery accuses Kubochi of a "bait and switch scheme where [Kubochi] refuses to do as he agreed," failing in "his duties to file In Pro Per [d]efendant pleadings," with no notice "of the procedural changes that would adversely affect" Fuery's case. Id. at 27-28. Fuery also alleges ADA violations against Kubochi. Id. at 4 (). Fuery refers to himself as "a qualified, elderly individual with disabilities" who "suffers from Type 2 Diabetes, Arrhythmia, Incontinence, Seizures, Insomnia, and the lingering effects of a prior Stroke that was induced by a 5 cm Meningioma (brain tumor)." Id. at 1.
Fuery alleges his former attorney, Hubert Chen, (1) provided a redacted discovery file in Fuery's criminal case when Fuery wanted the un-redacted file; and (2) invoked California Penal Code section 1368 against Fuery, calling Fuery's mental competence into question. Allegations at 10, 21.
Fuery alleges Harry, a deputy district attorney at the Sacramento County District Attorney's Office, "seemed reasonable, but has the same half-truth argumentation style as" defendant Jason Stratton, and Harry "passes all information he learns to" defendant Commissioner Stanger. Allegations at 5-6.
Fuery alleges Maroun, a deputy district attorney at the Sacramento County District Attorney's Office, "colluded, whether knowing or unknowingly," with Cherry by producing "Cherry's fabricated statement" about Fuery to a Sacramento County Superior Court judge. Allegations at 4. Specifically, Maroun produced Cherry's statement "alleging Mr. Fuery had told Deputy Cherry that Mr. Fuery had received [cannabis extract] contraband in exchange for legal fees from Mr. Bagshaw . . . ." Allegations at 8, 14. Maroun then requested Fuery's motion to suppress in his client's case "be cancelled and it was." Id. Maroun also requested a hearing be scheduled to remove Fuery as Bagshaw's counsel. Id.
Stratton, a deputy district attorney at the Sacramento County District Attorney's Office, "denied statements he made to [Fuery] in open court and also delivered omissive information to a [j]udge that caused a direct threat to [Fuery's] life." Allegations at 5. Fuery had informed Stratton of Fuery's "health crisis, and requested that [Stratton] speak with Judge Ott because [Fuery] needed to leave for the hospital immediately." Id. at 26. Instead, Stratton "presented to Judge Ott that [Fuery] had 'another matter,' thereby giving the kiss of death to [Fuery's] request to be heard earlier." Id.
An hour later, Fuery learned about Stratton's representations to Judge Ott, "demanded" Stratton be truthful about the medical emergency. Id. "The matter was resolved" and Fuery spent a few days "at UC Davis." Id. On a previous occasion, Stratton had answered a question for Fuery then denied "his answer quoted by" Fuery "a few moments later" when Fuery mentioned it in court. Id.
Defendants have filed three separate motions to dismiss. ECF Nos. 6-1, 13-1 ("Mot."), 15-1. This court has already ruled on defendants' motion to dismiss filed on May 16, 2018, ECF No. 6, granting the motion without leave to amend as to defendants Judge John Winn, Judge Laurel White, Judge Michal Savage, Court Commissioner Phillip Stanger and court clerk Trevor Shaddox based on judicial and quasi-judicial immunity. See ECF No. 19.
Fuery did not file any timely response to any defense motions. On August 24, 2018, the court held a hearing on the motions at ECF Nos. 13 and 15 and to conduct initial scheduling. See ECF No. 21. Jill Nathan and Jesse Rivera appeared for defendants, but Fuery did not appear.
Fuery did file a "declaration," ECF No. 20, at 4:20 AM PDT, less than six hours before hearing. In his filing, he asserts "there are grounds for a motion for reconsideration" of the court's previous order, ECF No. 19, but acknowledges "[t]he original complaint was, in fact, improper because [he] sued the [j]udges and other parties personally and not in their official capacity . . . ." ECF No. 20 at 4. Fuery also addresses defendants not subject to the court's previous...
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