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Foster v. Lazalde

United States District Court, W.D. Texas, El Paso Division

March 9, 2018

GEORGE LAMAR DARRYL FOSTER, Plaintiff,
v.
OSCAR A. LAZALDE, MICHAEL E. TRUJILLO, Defendants.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          ANNE T. BERTON, UNITED STATES MAGISTRATE JUDGE.

         On this day, the Court considered the status of the above-styled and numbered cause. On February 9, 2018, pro se Plaintiff George Lamar Darryl Foster filed an application to proceed in forma pauperis and a Complaint. (ECF. No. 1). On March 9, 2018, after submitting the required supplemental information, the Court granted Plaintiff's application and his Complaint was filed. (ECF. Nos. 5-7). In the Order, the Court noted that “[p]rior to ordering service of process on Defendants, the Court [would] engage in judicial screening of Plaintiff's Complaint pursuant to 28 U.S.C. § 1915.” (ECF. No. 6). The Court has now screened Plaintiff's Complaint and submits this Report and Recommendation.

         After due consideration, the Court RECOMMENDS that Plaintiff's Complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for being frivolous.

         I. BACKGROUND

         As it must, the Court accepts Plaintiff's well-pleaded allegations as true for the purposes of this Report and Recommendation. However, because Plaintiff's criminal case took place in this Court, the Court takes judicial notice of the docket in United States of America v. George Lamar Darryl Foster, 3:16-CR-01340-DB-1 (2016).[1] See ITT Rayonier, Inc. v. United States, 651 F.2d 343, 345 n.2. (5th Cir. 1981) (“A court may . . . take judicial notice of its own records . . . .”); Fed.R.Evid. 201(b)(2).

         On July 8, 2016, a criminal complaint was filed against Plaintiff for violations of 21 U.S.C. § 841(a)(1) and 8 U.S.C. § 1324 before Senior District Judge David Briones. (CD 1). On July 13, 2016, Magistrate Judge Miguel A. Torres set Plaintiffs bond at $30, 000 cash or corporate surety. (CD 21). Plaintiff was ordered to reside in Fresno, California and report to Pretrial Services as directed. (Id.).

         On January 17, 2017, El Paso U.S. Pretrial Services Officer Oscar A. Lazalde filed a Petition for Action seeking revocation of Plaintiffs bond. (CD 80; ECF. No. 7, p. 11-13). Relevant here, Officer Lazalde reported the following information from the Fresno United States Pretrial Services Office:

• On October 14, 2016 a Violation Notice was submitted informing Plaintiff that his urine samples tested positive for marijuana on August 9, 2016, August 23, 2016, and September 26, 2016;
• The samples were sent for confirmation to Alere Laboratories, which determined that Plaintiff re-used marijuana prior to the collections on August 23, 2016 and September 26, 2016;
• Plaintiff maintained that he did not use marijuana;
• Plaintiff s bond was thereafter modified to include location monitoring; and
• Plaintiff failed to report to U.S. Pretrial Services in Fresno and provide urine samples on October 25, 2016; November 1, 2016; November 16, 2016; December 6, 2016; December 19, 2016; January 7, 2017; and January 10, 2017.

(Id.). An arrest warrant was then issued for Plaintiff, signed by Michael Trujillo of the United States District Clerk's Office. (CD 81, ECF. No. 7 p. 14). Thereafter, Judge Briones revoked Plaintiff's bond and remanded him into custody. (CD 93, ECF. No. 7 p. 16).

         Consequently, Plaintiff asserts that Officer Lazalde and Michael Trujillo: (1) colluded to violate Plaintiff's Equal Protection rights in violation of 42 U.S.C. §§ 1985, 1986, 1988 by fabricating positive urine tests; (2) violated his Eighth Amendment rights by, inter alia, committing perjury; and (3) “were responsible for Plaintiff's wrongfully being violated [sic] for a false positive urine test, in violation of U.S.C. § 4042, 42 U.S.C. 1985, 1986, 1988 and 5th, 8th, 14th Amend. U.S. Const.” (ECF. No. 7, p. 4-5). Plaintiff seeks declaratory, compensatory, and punitive relief. (Id. at ...


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