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Ochoa v. Grogan


December 15, 2008


The opinion of the court was delivered by: Theresa A. Goldner United States Magistrate Judge




On November 24, 2008, pro se state prisoner Alfonso Arizmendi Ochoa ("Plaintiff") filed a complaint pursuant to 42 U.S.C. § 1983, against Shafter Police Officer Sgt. Casey Grogan ("Officer Grogan"). On November 24, 2008, Plaintiff also filed an application to proceed in forma pauperis ("IFP"). (Doc. 2). On December 1, 2008, the matter was reassigned and referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-303. (Doc. 4). On December 10, 2008, Plaintiff filed a first amended complaint. (Doc. 7). On December 10, 2008, Plaintiff also filed an application for funds to pay for "investigators, experts and others." (Doc. 8).

1. IFP Motion

The Court finds that Plaintiff's IFP motion, wherein he reports that he is incarcerated, unemployed, and has no income or assets, satisfies the indigency requirements of 28 U.S.C. § 1915 and that Plaintiff is unable to pay the costs of commencing this action. Accordingly, Plaintiff's IFP motion will be granted.

2. Amended Complaint

A. Screening

The Court is required to screen a complaint brought by a prisoner seeking relief against a governmental agency or an officer or employee of a governmental agency, and to review a case filed in forma pauperis prior to service of process. 28 U.S.C. §1915A(a); 28 U.S.C. 1915(e). The Court must screen the complaint--in this case, Plaintiff's amended complaint--for sufficiency and dismiss the action if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1) &(2); 28 U.S.C. § 1915 (e)(2)(B); see Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987 (citing Franklin v. Murphy, 745 F. 2d 1221, 1228 (9th Cir. 1984).

(1) Failure to State a Claim

A complaint should be dismissed for failure to state a claim "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229 (1984)(citing Conley v Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n., Inc., 651 F. 2d 1289, 1294 (9th Cir. 1981). Section 1915(e) of the Prison Litigation Reform Act requires a district court to dismiss an informa paupers complaint that fails to state a claim. 28 U.S.C. § 1915; Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). However, where a deficient complaint could possibly be cured by an amendment, the complaint must be dismissed with leave to amend. See Eldridge v. Block, 832 F. 2d 1132, 1135-1137 (9th Cir. 1987). When reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint, construe it in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976); Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).

(2) Frivolous

A complaint is legally frivolous when it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 324-325, 109 S.Ct. 1837 (1989); Franklin v. Murphy, 745 F. 2d at 1229. The Court may dismiss a complaint as frivolous if it is based on an indisputably meritless legal theory or merely fanciful factual allegations. Id. Frivolous factual allegations include those that are irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728 (1992). The Court must liberally construe a pro se pleading, however, it is not required to "accept as true unreasonable inferences or conclusory allegations cast in the form of factual allegations." Trevillion v. Tarantino, 2005 WL 2072098, at *3 (N.D. Cal. Aug. 23, 2005) (citations omitted).

(3) Malicious

The test for malice is a subjective one that requires the court to determine whether the plaintiff is proceeding in good faith. Kinney v. Plymouth Rock Squab. Co., 236 U. S. 43, 46, 35 S.Ct. 236 (1915); see Wright v. Newsome, 795 F. 2d 964, 968 n. 1(11th Cir. 1986). A complaint may be inferred to be malicious if it suggests an intent to vex the defendants or abuse the judicial process, threatens violence or contains disrespectful references to the court, or contains untrue material allegations of fact or false statements made with knowledge and intent to deceive the court. Crisafi v. Holland, 655 F. 2d 1305, 1309 (D.C. Cir. 1981); Horsey v. Asher, 741 F. 2d 209, 212 (9th Cir. 1984).

(4) Section 1983 Amended Complaint

Plaintiff's first amended complaint seeks damages under 42 U.S.C. § 1983, which provides in pertinent part that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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. . ..

42 U.S.C. § 1983.

To plead a § 1983 violation, the plaintiff must allege facts from which it may be inferred that (1) plaintiff was deprived of a federal right, and (2) the person who deprived plaintiff of that rights acted under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250 (1988); Collins v. Womancare, 878 F. 2d 1145, 1147 (9th Cir. 1989). To warrant relief under § 1983, the plaintiff must allege and show that the defendants' acts or omissions caused the deprivation of the plaintiff's constitutionally protected rights. Leer v. Murphy, 844 F. 2d 628, 633 (9th Cir. 1993). "A person deprives another of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]." Leer, 844 F.2d at 633. There must be an actual causal connection or link between the actions of each defendant and the deprivation alleged to have been suffered by the plaintiff. See Monell v. Department of Social Services, 436 U.S. 658, 691-692, 98 S.Ct. 2018 (1978)(citing Rizzo v. Goode, 432 U.S. 362, 370-371, 96 S.Ct. 598 (1976)).

(5) Rule 8(a)

Section 1983 complaints are governed by the notice pleading standard in Federal Rule of Civil Procedure 8(a), which provides in relevant part that:

A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

The Federal Rules of Civil Procedure adopt a flexible pleading policy. Nevertheless, a complaint must give fair notice and state the elements of the plaintiff's claim plainly and succinctly. Jones v. Community Redevelopment Agency, 733 F. 2d 646, 649 (9th Cir. 1984). In other words, the plaintiff is required to give the defendants fair notice of what the plaintiff's claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992 (2002) (citations omitted). Although a complaint need not outline all of the elements of a claim, it must be possible to infer from the allegations that all of the elements exist and that the plaintiff is entitled to relief under a viable legal theory. Walker v. South Cent. Bell Telephone Co., 904 F. 2d 275, 277 (5th Cir. 1990). Conclusory allegations unsupported by facts are insufficient to state a claim under § 1983. Sherman v. Yakahi, 549 F. 2d 1287, 1290 (9th Cir. 1977). The plaintiff "must 'allege with at least some degree of particularity overt acts which defendants engaged in' that support plaintiff's claims." Id.

B. Analysis

(1) Plaintiff's Allegations

Plaintiff's first amended complaint (Doc. 7) alleges civil rights violations arising out of a police shooting. It also appears that Plaintiff attempts to allege a state law negligence claim. Plaintiff alleges that on July 4, 2008, at approximately 5:15 p.m., Sergeant Grogan "harmed plaintiff Mister Ochoa by firing one round right through plaintiff's lower thigh above the right knee causing physical injuries to Mr. Ochoa." (Doc. 7, p. 1). Plaintiff then alleges that Sergeant Grogan's conduct was "wrongful and negligent," that Grogan was acting under color of state law, and that he is entitled to money damages as a result of Grogan's conduct. (Id.). Plaintiff goes on to allege that the use of "excessive force" by Sergeant Grogan was proscribed by the Eighth Amendment to the United States Constitution. (Id. at p. 2). Plaintiff then alleges that Sergeant Grogan "wanted me out of his community," that Plaintiff was scared of Grogan, and that "my hands were in the air in front of me [while] I was on the ground when Sgt. Grogan put a bullet through my leg." (Id.). Plaintiff alleges that "Sgt. Casey Grogan's wrongful and negligent acts and omission cause Plaintiff to suffer injury. See Government Code § 844.6(d). " (Id.). Plaintiff asks for five million dollars in damages. (Id.).

(2) Analysis of Sufficiency of Plaintiff's Excessive Force Claim

Here, Plaintiff has alleged that Sergeant Grogan, acting as an employee of the Shafter Police Department, engaged in the use of excessive force in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. For the reasons set forth below, the Court concludes that Plaintiff has not pleaded facts sufficient to state a claim for a Fourth Amendment violation.

a. Eighth Amendment Claim

The language of the Eighth Amendment, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," manifests "an intention to limit the power of those entrusted with the criminal-law function of government." Ingraham v. Wright, 430 U.S. 651, 664, 97 S.Ct. 1401, 1408 (1977). The United States Supreme Court has recognized that the protections of the Fourth Amendment apply to excessive force claims "in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen." Graham v. Connor, 490 U.S. 396, 395 (1989).*fn1 By contrast, the Eighth Amendment's prohibition on cruel and unusual punishment "was designed to protect those convicted of crimes, and consequently the Clause applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions." Whitley v. Albers, 475 U.S. 312, 318, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (internal quotation marks and citation omitted) (quoting Ingraham, 430 U.S. at 664, 671 n. 40). Moreover, "[n]ot every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny[.]" Whitley, 475 U.S. at 319; see also Ingraham, 430 U.S. at 670. Rather, "[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause." Whitley, 475 U.S. at 319.

Here, it appears implicit from the amended complaint that Plaintiff had yet to be criminally prosecuted at the time of the alleged shooting. Indeed, it appears that Sergeant Grogan was in the process of attempting to arrest Plaintiff at the time the incident occurred. Thus, the Eighth Amendment is inapplicable. However, even if the Court's inferences are incorrect and Plaintiff had already been convicted at the time of the alleged shooting, the amended complaint is fatally defective in alleging that fact as a predicate for an Eighth Amendment excessive force claim.*fn2

b. Fourth Amendment Claim

Here, it appears that Plaintiff was in the process of being arrested at the time the incident occurred; hence, any excessive force claim must be predicated on the Fourth Amendment, not the Eighth Amendment. Graham, 490 U.S. at 395. Because Plaintiff is proceeding pro se, the Court will construe the amended complaint to allege the use of excessive force in violation of the Fourth Amendment..

The Fourth Amendment guarantees the right "to be secure in their persons . . . against unreasonable ... seizures." U.S. Const. amend. IV. In Graham v. Connor, 490 U.S. 386, 395, (1989), the United States Supreme Court held that claims alleging that law enforcement officials used excessive force during an arrest, investigatory stop, or other seizure should be analyzed under the Fourth Amendment's "objective reasonableness" standard. Billington v. Smith, 292 F.3d 1177, 1184 (9th Cir. 2002); Robinson v. Solano County, 278 F.3d 1007, 1009 (9th Cir. 2002). Under the Fourth Amendment, officers may only use such force as is "objectively reasonable" under the circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989). To determine whether the force used was reasonable, courts balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. at 396 (citations omitted); Billington, 292 F.3d at 1184.

In evaluating the nature and quality of the intrusion, the court must consider "the type and amount of force inflicted" in arresting the plaintiff. Jackson v. City of Bremerton, 268 F.3d 646, 651-652 (9th Cir. 2001); Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir.1994)

Next, the court must balance the plaintiff's alleged intrusions against the governmental interests at stake. Jackson v. City of Bremerton, 268 F.3d 646, 652 (9th Cir. 2001) In considering the government's interests, the court must consider the severity of the crime at issue, whether the suspect posed an immediate threat to the officer's safety and whether the plaintiff was actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)); Jackson, 268 F.3d at 651-652.

"The reasonableness inquiry is objective, without regard to the officer's good or bad motivations or intentions." Billington, 292 F.3d at 1184. The court must judge the reasonableness of a particular use of force "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 397. The court must remember that police officers are often forced to make split-second judgments during tense, uncertain, and rapidly evolving circumstances. Billington, 292 F.3d at 1184; Robinson v. Solano County, 278 F.3d 1007, 1009 (9th Cir. 2002).

The same analysis applies to any arrest situation where force is used, whether it involves physical restraint, use of a baton, use of a gun, or use of a dog. Mendoza v. Block, 27 F.3d 1357, 1362-63 (9th Cir. 1994) (deputies' use of police dog to find suspect and secure him until handcuffed analyzed under reasonableness standard).

Because the reasonableness test is not capable of precise definition or mechanical application, its proper treatment requires careful attention to the facts and circumstances of each particular case including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396; Tennessee v. Garner, 471 U.S. 1, 3 (1985) (use of deadly force reasonable only if officer has probable cause to believe that suspect poses significant threat of death or serious physical injury to officer or others). These factors are not exclusive, however, and the totality of the particular circumstances of each case must be considered. Fikes v. Cleghorn, 47 F.3d 1011, 1014 (9th Cir. 1995); Forrester, 25 F.3d at 806 n.2.

Police officers are not required to use the least intrusive degree of force possible; they are required only to act within a reasonable range of conduct. See Forrester, 25 F.3d at 806-07 (use of minimal and controlled force in manner designed to limit injuries reasonable); Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994) (requiring officers to find and choose least intrusive alternative would require them to exercise superhuman judgment) (1995). A plaintiff may prove excessive force, however, even where there is no significant injury. See Wilks v. Reyes, 5 F.3d 412, 416 n.1 (9th Cir. 1993) (plaintiff entitled to award of nominal damages even if no actual damage suffered).

Applying those principles to the instant amended complaint, the Court concludes that plaintiff has failed to plead sufficient factual allegations to demonstrate that defendants' conduct was unreasonable. Plaintiff's complaint asserts merely conclusory allegations that defendants' unreasonable and excessive force is evidenced by defendants "firing one round right through plaintiff's lower thigh...." (Doc. 7, p. 1). Plaintiff also alleges that "my hands were in the air in front of me [while] I was on the ground when Sgt. Casey Grogan put a bullet through my leg...." (Id. at pp. 1-2). Other than Plaintiff's conclusory allegations that the defendants' conduct was, variously, sadistic, wrongful, and negligent, Plaintiff does not allege how Plaintiff came to be on the ground, where this incident occurred, what prompted defendant and/or other law enforcement personnel to be present in that area or for Sergeant Grogan to draw his weapon, why Plaintiff's hands were "in the air" in front of him on the ground, or indeed any other circumstances that would give some factual context to the allegation that Sergeant Grogan's shooting of Plaintiff was "wrongful and negligent."

Additionally, Plaintiff has failed to allege any facts showing that Sergeant Grogan was neither provoked nor justified in his actions. Plaintiff's failure to specifically articulate the circumstances of the arrest is of notable importance in light of the Supreme Court's determination in Graham that the "reasonableness" inquiry in an excessive force case is an "objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them." Graham, 490 U.S. at 397 (citing Scott v. United States, 436 U.S. 128, 137-39 (1978)). Without allegations regarding those "facts and circumstances," the Court has no basis on which to conduct an "objective reasonableness" inquiry.

For the foregoing reasons, the Court finds that Plaintiff has not pled facts sufficient to state a violation of his Fourth Amendment rights. Therefore, the Court will dismiss the amended complaint; Plaintiff is given leave to amend his complaint, by filing a second amended complaint, to specify the actual conduct that made the officer's use of force excessive and unreasonable under the Fourth Amendment.

(3) Negligence Claim

On page one of the amended complaint, Plaintiff alleges that "Sgt. Casey Grogan's wrongful and negligent acts and omission cause Plaintiff to suffer injury. See Government Code § 844.6(d)." On page two of the amended complaint, he states "[a] police department or police officers can be sued for money damages under state law because the official's wrongful or negligent act or failure to act caused injury or harm to a state parolee. Government Code §844.6(d)." It is unclear whether Plaintiff is asserting that his constitutional rights were violated based upon negligence, or if he is asserting a state law negligence claim against Sergeant Grogan and/or others. If it is the former, it is insufficient to state a § 1983 claim. See Daniels v. Williams, 474 U.S. 327, 330-331 (1986); see also, Alfrey v. United States, 276 F. 3d 557, 568 (9th Cir. 2002). If it is the latter, it does not allege the requisite elements of negligence under state law, i.e., duty, breach, causation, and damages. See United States Liab. Inc. Co. v. Haidinger-Hayes, Inc., 48 Cal. 3d 583, 588 (1989). Under either scenario, Plaintiff fails to state a claim with respect to negligence.

(4) Shafter Police Department

The case and caption of Plaintiff's amended complaint does not named the Shafter Police Department as a defendant; however, the body of the amended complaint alleges "[t]hese lawsuits for money damages against Shafter Police Department and Sgt. Casey Grogan ...." (Doc. 7, p. 1). The Court construes these allegations to mean that Plaintiff intends to include the Shafter Police Department as a defendant in this civil rights action. A private right of action exists against persons who, acting under color of state law, violate a plaintiff's federal constitutional rights. 42 U.S.C. § 1983. In the context of a § 1983 claim, the term "persons" does not include municipal departments, such as a city police department. "Naming a municipal department as a defendant is not an appropriate means of pleading a § 1983 action against a municipality." Vance v. County of Santa Clara, 928 F. Supp. 993, 995-996 (N.D. Cal. 1996)(quoting Stump v. Gates, 777 F. Supp. 808, 816 (D. Colo. 1991); Gordon v, Butte County, 2008 WL 4370110 at *2 (E.D.Cal. September 23, 2008). The Shafter Police Department is not a proper defendant.

C. Opportunity to Amend

Based on the foregoing, Plaintiff's case will be dismissed. However, given Plaintiff's status as a pro se litigant, Plaintiff will be given an opportunity to amend his complaint by filing a second amended complaint. Any amended complaint supercedes the original or preceding complaint(s), Forsyth v. Humana, Inc., 114 F. 3d 1467, 1474 (9th Cir 1997), and must be "complete in itself without reference to the prior or superceded pleading." Local Rule 15-220. Once an amended complaint is filed, the original or preceding pleading no longer serves any function in the action. Therefore, in an amended complaint, as in an original complaint, each claim and the underlying facts must be sufficiently alleged.

3. Application for Investigator and Other Funds

On December 10, 2008, Plaintiff filed an application seeking funds to pay for "investigators, experts and others for the preparation or presentation of my defense." (Doc. 8). Plaintiff did not cite any legal authority supporting his request for funds. This is a civil, not a criminal action, and Plaintiff is not a defendant. The Court has been unable to locate any authority authorizing the payment of funds in a civil action for the purposes requested by Plaintiff. Moreover, in light of the Court's decision to dismiss the amended complaint with leave to amend, Plaintiff's application for funds will be denied as moot and without prejudice.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to proceed in forma pauperis (Doc. 2) is GRANTED;

2. Plaintiff's amended complaint (Doc. 7) is DISMISSED, with leave to amend, for failure to state a claim;

3. Plaintiff's application for investigator and other fees (Doc. 8) is DENIED AS MOOT and WITHOUT PREJUDICE;

4. The Clerk's Office shall send Plaintiff a civil rights complaint form; and 5. Within thirty (30) days from the date of service of this order, Plaintiff must file a second amended complaint curing the deficiencies identified by the Court in this order; the second amended complaint must bear the docket number assigned to this case, it must be labeled "Second Amended Complaint," and it may not add any new, unrelated claims to this action.

Any attempt to add any new, unrelated claims to this action via an amended complaint will result in an order striking the amended complaint. Plaintiff's failure to file an amended complaint will result in a recommendation to dismiss this action. Local Rule 11-110.


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