The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS SOME CLAIMS WITHOUT LEAVE TO AMEND, TO FIND THAT PLAINTIFF STATES A COGNIZABLE CLAIM AGAINST SOME DEFENDANTS, AND TO ORDER SERVICE OF THE FIRST AMENDED COMPLAINT ON THREE DEFENDANTS
Plaintiff is a state prisoner proceeding in forma pauperis and pro se with an action for damages and other relief concerning alleged civil rights violations. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-304.
Pending before the Court is Plaintiff's first amended complaint (FAC), filed on February 17, 2009.*fn1
I. Screening the Complaint
The Court must screen complaints brought by prisoners seeking relief against a governmental entity or officer. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the Court determines that an allegation of poverty is untrue or that the action is 1) frivolous or malicious, 2) fails to state a claim upon which relief may be granted, or 3) seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. §§ 1915A(b), 1915(e)(2). "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard... applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989).
Although a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff does not meet his or her obligation to provide the grounds of entitlement to relief by supplying only conclusions, labels, or a formulaic recitation of the elements of a claim. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). Factual allegations must be sufficient, when viewed in light of common experience, to raise a right to relief above the speculative level and to provide plausible grounds to suggest and infer the element, or to raise a reasonable expectation that discovery will reveal evidence of the required element. Bell, 127 S.Ct. at 1965.
In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations of the complaint, and it may not be dismissed based on a court's assessment that the plaintiff will fail to find evidence to support the allegations or prove the claim to the satisfaction of the finder of fact. Bell, 127 S.Ct. at 1969.
If the Court determines that the complaint fails to state a claim, leave to amend should be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the Plaintiff cannot prevail on the facts that he has alleged and that an opportunity to amend would be futile. Lopez v. Smith, 203 F.3d at 1128.
A claim is frivolous if it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 324 (1989). A frivolous claim is based on an inarguable legal conclusion or a fanciful factual allegation. Id. A federal court may dismiss a claim as frivolous if it is based on an indisputably meritless legal theory or if the factual contentions are clearly baseless. Id.
The test for malice is a subjective one that requires the Court to determine whether the applicant is proceeding in good faith. Kinney v. Plymouth Rock Squab. Co., 236 U.S. 43, 46 (1915); see Wright v. Newsome, 795 F.2d 964, 968 n. 1 (11th Cir. 1986). A lack of good faith is most commonly found in repetitive suits filed by plaintiffs who have used the advantage of cost-free filing to file a multiplicity of suits. A complaint may be inferred to be malicious if it suggests an intent to vex the defendants or abuse the judicial process by relitigating claims decided in prior cases, Crisafi v. Holland, 655 F.2d 1305, 1309 (D.C.Cir. 1981); if it threatens violence or contains disrespectful references to the Court, id.; or if it contains untrue material allegations of fact or false statements made with knowledge and an intent to deceive the Court, Horsey v. Asher, 741 F.2d 209, 212 (8th Cir. 1984).
B. Plaintiff's First Amended Complaint
Plaintiff seeks compensatory and punitive damages (Cmplt. p. 15) from Michael J. Yant and Eric Heller, two employees of Target Corporation, an unnamed defendant referred to as the manager of the Target store, and Tulare Police Officer G. Barrios for injuries that Plaintiff sustained as a result of allegedly unlawful detention, cruel and unusual punishment in the form of deliberate indifference to medical needs, and infliction of physical and emotional abuse by way of application of excessive force. (Id. pp. 1-3.) The events in question occurred at a Target store in Tulare, California on March 3, 2008. (Id. pp. 2-3.) Plaintiff purports to sue all defendants in their official and individual capacities. (Id. p. 4.)
Plaintiff entered no-contest pleas to criminal charges, probably theft, stemming from the incident. (Cmplt. p. 14.)
It is alleged that Defendants Yant and Heller, who were working as asset protection specialists at the time, claimed to be off-duty police officers who were acting in concert with Defendant Officer Barrios, who was present to assist in the apprehension of Plaintiff and another suspect. (Cmplt. p. 5.) Plaintiff alleges that Defendants Yant and Heller immediately told the officer that they wanted both suspects prosecuted for theft. (Cmplt. p. 11.) It is also alleged that Defendants Yant and Heller effected a citizen's arrest of Plaintiff outside the store (id. p. 3); Plaintiff did not try to run and was not combative (id. p. 14); in the course of the arrest, they inflicted injury on Plaintiff by assaulting him, continually beating him, and handcuffing him so tight that he bled. (Cmplt. p. 6.) This was witnessed by Defendant Officer Barrios, who had been dispatched to the Target store upon a report of shoplifting in progress and who noted the injury and observed the injured Plaintiff being dragged back in to the store to be interrogated; pursuant to the instructions of the other defendants, Defendant Barrios left Plaintiff in the control of Defendants Yant and Heller, who informed Barrios that they wanted to interrogate Plaintiff concerning other thefts at the store. Although Plaintiff complained of his injuries, demanded medical attention due to a broken collar bone injury that was obvious, and stated he had nothing to say, Officer Barrios left Plaintiff with the other defendants, stated he would return later, and returned two hours later, during which time Plaintiff was denied medical attention, and Plaintiff invoked his right to remain silent. (Cmplt. pp. 4, 6.) During the interval, Yant and Heller read Plaintiff his Miranda rights and interrogated him despite Plaintiff's invocation of his right to remain silent. Barrios then told Plaintiff that Heller and Yant were just security officers, and were not off-duty police officers. (Id. p. 4.)
Plaintiff alleges that Defendant Barrios was "aiding and abetting" the other defendants during the arrest, but also that he caused abuse of authority by severe negligence. (Cmplt. p. 5.) Plaintiff alleges that Barrios negligently left Plaintiff with evident injuries to be interviewed for over two hours. (Id. pp. 12, 14.) Plaintiff also alleges that all defendants acted in concert and caused a purposeful act of infliction of physical and emotional abuse. (Cmplt. p. 15.)
It is alleged that after Barrios reappeared, he immediately transported Plaintiff to the hospital. (Cmplt. p. 6.) Plaintiff was diagnosed with a broken or shattered collar bone and given an arm sling. (Cmplt. p. 9.) His glasses were shattered, he suffered dental injury and emotional distress, and he incurred hospital bills. (Id. p. 12.)
With respect to the supervisor, Defendant John or Jane Doe, Plaintiff alleges that Defendant Doe supervised Defendants Yant and Heller, noted Plaintiff's injuries, brought a bottle of water and a band-aid for Plaintiff's cut hand after Plaintiff had passed our four times; she asked if he needed an ambulance, but one of the other defendants stated that Plaintiff was not cooperating, and the officer would pick him up soon or was on the way for booking. She then walked out. (Cmplt. pp. 5, 8-9.) Plaintiff alleges in a conclusional fashion that Defendant was negligent in hiring and supervision. (Id. p. 15.)
Plaintiff states that he did not give any defendant any statement at all. (Cmplt. p. 8.) However, he also refers to a false report in which Yant lied by saying Plaintiff had told him that upon entering the Target store, he intended to take items and sell them or trade them for methamphetamine, and he admitted earlier thefts. (Cmplt. p. 10.)
After fifteen pages of factual allegations, attached to Plaintiff's first amended complaint (FAC) are various exhibits consisting of police reports and documents concerning Plaintiff's ...