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Nieto v. Hodge

September 30, 2010

LUPE NIETO, JR., PLAINTIFF,
v.
CLOVIS POLICE OFFICER DRAKE HODGE, SUED IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, CLOVIS POLICE DEPARTMENT, AND COUNTY OF FRESNO, DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiff Lupe Nieto, Jr., ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this action. On August 4, 2010, Plaintiff filed this action. (Doc. 1). Plaintiff asserts this civil rights action against Clovis Police Officer Drake Hodge in his individual and official capacity, the Clovis Police Department, and the County of Fresno (collectively, "Defendants") pursuant to 42 U.S.C. § 1983.

I. Screening Requirement

Where a prisoner seeks relief against "a governmental entity or officer or employee of a governmental entity," the Court is required to review the complaint and identify "cognizable claims." 28 U.S.C § 1915(a)-(b). The Court must dismiss a complaint, or portion of the complaint, if it is "frivolous, malicious or fails to state a claim upon which relief may be granted; or. seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2). A claim is frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). In determining malice, the Court examines whether the claims are pled in good faith. Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 46 (1915).

II. Pleading Standards

General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A pleading stating a claim for relief must include a statement affirming the court's jurisdiction, "a short and plain statement of the claim showing the pleader is entitled to relief; and.a demand for the relief sought, which may include relief in the alternative or different types of relief." Fed.R.Civ.P. 8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to "less stringent standards" than pleadings drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

A complaint must give fair notice and state the elements of the plaintiff's claim in a plain and succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The purpose of the complaint is to give the defendant fair notice of the claims against him, and the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me unlawfully accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). The Court clarified further that,

[A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Citation]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation]. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"

Iqbal, 129 S.Ct. at 1949. Where the factual allegations are well-pled, a court should assume their truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in the pleading are not entitled to the same assumption of truth. Id. If the Court determines that the complaint fails to state a cognizable claim, the Court may grant leave to amend to the extent that deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).

III. § 1983 Claims

Section 1983 of title 42 of the United States Code does not provide for substantive rights; it is "a method for vindicating federal rights elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271 (1994). An individual may bring an action for the deprivation of civil rights pursuant to 42 U.S.C. § 1983, which states in pertinent part: 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, a plaintiff must allege facts from which it may be inferred that (1) he was deprived of a federal right, and (2) a person or entity who committed the alleged violation acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Williams v. Gorton, 529 F.2d 668, 670 (9th Cir. 1976).

A plaintiff must allege that he suffered a specific injury and show causal relationship between the defendant's conduct and the injury suffered by the plaintiff. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person deprives another of a federal right "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 so that it causes the deprivation of which complaint is made"). There is no respondeat superior liability under § 1983, and the supervisor of an individual who allegedly violated a plaintiff's constitutional rights is not made liable for the violation simply by virtue of that role. Monell v. Dep't. of Soc. Servs., 436 U.S. 658, 691 (1978). "A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d, 1040, 1045 (9th Cir. 1989).

Finally, as with other complaints, conclusory allegations unsupported by facts are insufficient to state a civil rights claim under § 1983. Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977).

IV. Discussion and Analysis

The first cause of action Plaintiff alleges that Defendants denied him his rights secured by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. (Doc. 1 at 6) Specifically, Plaintiff argues that each of the defendants deprived him of his rights to "due process of law, equal protection of the law, freedom from cruel and unusual punishment, and from state occasioned harm, injury, damage to bodily integrity, and emotional pain." Id. In the second cause of action, Plaintiff alleges defendants Clovis Police Department and County of Fresno violated § 1983 through failure to properly train, supervise, and discipline employees. Id. at 8. Plaintiff asserts the two causes of action arise from an incident on November 19, 2009:

[W]hile plaintiff Lupe Nieto, Jr. was under arrest and/or in the custody of Clovis Police Department with both his hands visibly held above his head, Clovis Police Officers positioned behind the Plaintiff fired approximately three rounds at Plaintiff and Police Officer Drake Hodge, who was also positioned in back of Mr. Nieto, Jr. fired his weapon causing the bullet to directly impact upon [P]laintiff's hand. Despite the fact that Plaintiff had surrendered and visibly had no weapon which obviously posed no threat to the officer's safety, a total of three live rounds were aimed at him with one actually injurying (sic) him.

Id. at 5. Also, Plaintiff states that defendant County of Fresno failed to meet statutory obligations under California Government Code § 815.6, but did not incorporate this argument into a cause of action. Id. at 3.

A. Liability of Defendant Clovis Police Department

Under § 1983, a "person" may be sued for the deprivation of federal rights, and municipalities or other governmental bodies may be sued as a "person." Monell, 436 U.S. at 690. However, the Ninth Circuit has held that these governmental bodies do not include police departments, as "municipal police departments and bureaus are generally not considered 'persons' within the meaning of 42 U.S.C. § 1983." United States v. Kama, 394 F.3d 1236, 1240 (9th Cir. 2005). ...


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