The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S COMPLAINT BE DISMISSED WITH PREJUDICE OBJECTIONS DUE: 20 DAYS
Plaintiff Jason Pellum ("Plaintiff"), proceeding pro se and in forma pauperis, filed a civil rights action on July 15, 2010. He names the Fresno Police Department as the only defendant. His complaint arises out of an incident that occurred on July 11, 2010. He asserts that the "Fresno Police Department" came to his residence and asked him to come outside and "have a seat on the stairs of the apartment leading [to] the front door of the residence." Complaint at 2 (Doc. 1).
Plaintiff alleges that he told the police officers that he had inherited one billion dollars and immediately thereafter three officers grabbed him around the neck and began to choke him. Id. Two other officers grabbed his left arm and twisted it through the iron guard rail, and the officers pulled him off the stairs. Plaintiff states that he was then tazered in the back, kicked in the left side, and pressure was applied to his lower back and his "brain stem" and he blacked out. Plaintiff seeks $2,500,000 in damages for "unnecessary force" on the part of the Fresno police officers.
On September 2, 2010, the Court dismissed Plaintiff's complaint and granted 30 days leave to amend. (Doc. 4.) When Plaintiff failed to file an amended complaint, the Court granted Plaintiff an additional 30 days to file an amended complaint after his address was updated. (Doc. 5.) Despite the additional time, Plaintiff failed to file an amended complaint. On January 12, 2011, the Court issued an Order to Show Cause ("OSC") why the action should not be dismissed for Plaintiff's failure to comply with the Court's November 19, 2010, order regarding amendment of Plaintiff's complaint. Plaintiff failed to respond to the OSC.
In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen each case and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue or the action or appeal is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend may 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).
B. Failure to State a Claim
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability. . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555).
1. Plaintiff's Complaint Should Be Dismissed Because the Fresno Police Department is Not a Proper Party Under Section 1983 Pursuant to 42 U.S.C. § 1983, a cause of action may be maintained "against any person acting under color of law who deprives another 'of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (quoting 42 U.S.C. § 1983) (emphasis added). The rights guaranteed by Section 1983 are to be "liberally and beneficently construed." Dennis v. Higgins, 498 U.S. 439, 443 (1991).
To state a claim under section 1983, Plaintiff must show (1) that he has been deprived of a right secured by the United States Constitution or a federal law, and (2) that the deprivation was effected "under color of state law." Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).
Local governments (i.e., municipalities) are "persons" subject to suit for "constitutional tort[s]" under 42 U.S.C. 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)). However, a local government's liability is limited. Although a local government may be held liable for its official policies or customs, it cannot be held liable for an ...