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Pollard v. Anderson Police Dept.

May 6, 2010

KENNETH BYFORD POLLARD, III, PLAINTIFF,
v.
ANDERSON POLICE DEPT., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's amended complaint (Doc. 42).

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that complaints contain a ". . . short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity overt acts by specific defendants which support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is impossible for the court to conduct the screening required by law when the allegations are vague and conclusory.

I. PLAINTIFF'S ALLEGATIONS

Plaintiff names the following as defendants: Anderson Police Department and Officers Harper, Bailey, and Van Dyke.*fn1 Plaintiff sets forth the following statement of facts:

On May 1, 2008, at approximately 10:00 p.m. Officer Harper of Anderson Police Dept observed a green Geo Storm, which he had been informed of earlier as a suspect vehicle in a domestic violence investigation from a rumor. Officer Harper conducted a traffic stop on the vehicle to conduct a (welfare check) in regards to the allege domestic violence call. Officer Harper contacted Pollard advise Pollard he was a suspect in a possible D-V and the officer was checking his (welfare). Harper smell alcohol on Pollard. A search and seizure of Pollard produce a (7-inch knife) which violated Pollard parole. Pollard took a sobriety test and allegedly failed. Police took Pollard to Anderson Police station. Pollard was assaulted after he use the bathroom. Police Harper, Van Dyke, Bailey putting Pollard in a left wrist lock. Pollard had a prior wrist injury before the arrest incident. Harper at the Shasta County Jail assisted jail staff to force blood from Pollard to get a DUI conviction knowing the illegal stop search and seizure unlawful arrest followed by unlawful imprisonment. Pollard stayed in jail for 5 months base on a rumor.

The court notes that these allegations relate to a different incident than the one referred to in plaintiff's prior pleading. Specifically, in the court's October 15, 2009, screening order addressing the prior amended complaint, the court summarized the factual allegations as follows:

Plaintiff claims that, on May 19, 2009, he was arrested on state drug charges by officers of the Anderson Police Department. According to plaintiff, the arresting officers placed him in the patrol car "with the heat turned up with the windows up." He states that, due to a psychiatric condition for which he takes medication, he could not breath. Plaintiff alleges that he was then pulled out of the car, hobbled, and choked by the officers. It can be reasonably inferred from the amended complaint that plaintiff asserts that defendant Nevens was one of the arresting officers.

Next, plaintiff raises allegations which appear to relate to court proceedings resulting from the May 19, 2009, arrest. First, he mentions a competency proceeding he anticipates will be held due to his psychiatric issues. He also references alleged destruction of evidence. He states that he being improperly charged because "no contraband was found on my person."

The current amended complaint relates to an arrest in May 2008 and not May 2009. Further, there is no reference to Officer Nevens in the current amended complaint.*fn2 In any event, the current amended pleading supercedes all prior pleadings and it is the current allegations relating to the May 2008 arrest that must form the basis of any legal claims plaintiff is raising in this action.

II. DISCUSSION

Plaintiff's current amended complaint raises facts that can be grouped as follows:

(1) facts relating to his arrest by Officer Harper; (2) facts relating to his treatment at the police station; and (3) facts relating to his treatment at the Shasta County Jail.*fn3 For the reasons discussed below, the court finds that ...


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