The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE RESPONSE DUE WITHIN 30 DAYS
Plaintiff Michael Chase Stafford ("Plaintiff"), is a county jail inmate appearing pro se and informa pauperis with an action for a violation of civil rights against the State of California, the "City of Merced County," and individual Merced County Police Detectives Rodriguez and Solis. Plaintiff's complaint arises out of an incident occurring on April 23, 2012. For the following reasons, Plaintiff is instructed to inform the Court whether he wishes to proceed only on the claims found cognizable.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 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 (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, 556 U.S. 662, 678 (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 557). "[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. (quoting Twombly, 550 U.S. at 555).
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.
C. Plaintiff's Allegations
According to the complaint, on April 23, 2012, Plaintiff was trying to retreat from a verbal argument he was having with his ex girlfriend, by driving away in a 2001 Saturn that he co-owned with her. Upon leaving, Plaintiff was approached by two "Merced Police Detectives." (Plaintiff's Compl. 3, Doc. 1*fn1 ). Plaintiff claims that once he drove away, his ex-girlfriend reported that he had stolen her car in an alleged car jacking. The Merced Police Detectives chased Plaintiff and tried to apprehend him, but were unable to do so before Plaintiff crashed his vehicle. Plaintiff alleges that while driving at a rate of 40 to 60 mph, he lost control of his vehicle and crashed head-on with a Merced City Bus. Id. at 3. During the accident, Plaintiff alleges he was knocked unconscious and his vehicle was disabled. Id.
According to Plaintiff, Detectives Solis and Rodriguez alleged that after the wreck, Plaintiff threw his car into reverse and attempted to run over the detectives. Plaintiff alleges that "he never attempted to use his car as a weapon" and that it was his impact with the bus that caused his vehicle to lurch backwards. Id. at 4. After the wreck, Plaintiff states that the Detectives "fired multiple rounds" into his vehicle "over excessively," striking him in his head and back. Plaintiff suffered injuries to his lungs and fractured two ribs. After sustaining his injuries, Plaintiff was life-flighted to Memorial Medical Center in Modesto, California. He was later arrested and "booked into jail" where he was charged with evading arrest of a police office, great bodily injury on a police officer, and for parole violations. At his arraignment hearing, Plaintiff claims that his great bodily injury on a police officer charge was dropped. He claims that this is evidence that the Detectives shot him unnecessarily and with excessive force.
Plaintiff requests a court trial for his excessive force claim. Id. at 3. Though he does not name any constitutional violations, the Court construes Plaintiff's complaint as alleging causes of action for excessive force in violation of the Fourth Amendment.
Allegations of excessive force during an arrest are analyzed under a Fourth Amendment standard. Graham v. Connor, 490 U.S. 386, 388 (1989) ("claim[s] that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other 'seizure'... are properly analyzed under the Fourth Amendment's 'objective reasonableness' standard"); Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994) ("the ...