Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Tennento v. Boston

United States District Court, E.D. California

June 2, 2014

CHRISTOPHER BOSTON, et al., Defendants.


JENNIFER L. THURSTON, Magistrate Judge.

Tony Tennento ("Plaintiff"), seeks to proceed pro se and in forma pauperis with an action pursuant to 42 U.S.C. § 1983 for violations of his civil rights by Christopher Boston, Christopher Gonzalez, and Jessey Esposito (collectively, "Defendants"). Plaintiff initiated this action by filing his complaint and a motion to proceed in forma pauperis on May 21, 2014. (Docs. 1, 3). For the following reasons, the complaint is DISMISSED with leave to amend.

I. Motion to proceed in forma pauperis

The Court may authorize the commencement of an action without prepayment of fees when an individual "submits an affidavit that includes a statement of all assets such person... possesses [and] that the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a). The Court has reviewed the affidavit, and determined Plaintiff's application satisfies the requirements of 28 U.S.C. § 1915(a). Therefore, Plaintiff's motion to proceed in forma pauperis is GRANTED.

II. Screening Requirement

When a plaintiff proceeds in forma pauperis, the Court is required to review the complaint, 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, malicious or fails to state a claim on 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). A claim is frivolous "when the facts alleged arise 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).

III. 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 by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (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). Further, a plaintiff must identify 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 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,

[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 (citations omitted). When factual allegations are well-pled, a court should assume their truth and determine whether the facts would make the plaintiff entitled to relief; legal conclusions in the pleading are not entitled to the same assumption of truth. Id.

The Court has a duty to dismiss a case at any time it determines an action fails to state a claim, "notwithstanding any filing fee that may have been paid." 28 U.S.C. § 1915e(2). Accordingly, a court "may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a claim." See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1357 at 593 (1963)). However, leave to amend a complaint may be granted to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).

IV. Section 1983 Claims

Plaintiff seeks to state a claim pursuant to 42 U.S.C. § 1983 ("Section 1983"), which "is a method for vindicating federal rights elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271 (1994). An individual may bring a civil rights action pursuant to Section 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory... 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 Section 1983 violation, a plaintiff must allege facts from which it may be inferred that (1) a constitutional right was deprived, and (2) a person 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 a specific injury was suffered, and show causal relationship between the defendant's conduct and the injury suffered. See Rizzo v. Goode, 423 U.S. 362, 371-72 (1976). Thus, Section 1983 "requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff." Chavira v. Ruth, 2012 U.S. Dist. LEXIS 53946, at *3 (E.D. Cal. Apr. 17, 2012). An individual 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." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In other words, "[s]ome culpable action or in action must be attributable to defendants." See Puckett v. Corcoran Prison - CDCR, 2012 U.S. Dist. LEXIS 52572, at *7 (E.D. Cal. Apr. 13, 2012).

V. Discussion and Analysis

Plaintiff asserts that on March 9, 2013, he was in Hart Park in Bakersfield, California, when "Officers[] Jessy Esposito, Christopher Boston, and Christopher Gonzalez opened fire on [him] while [he] was trying to leave the area." (Doc. 1 at 3.) According to Plaintiff, "Christopher Gonzalez shot at [him] 15 times, Christopher Boston shot at [him] 3 to 4 times, and Jessey Esposito shot... 4 to 6 times." ( Id. ) He alleges that he was hit by one of the shots, his "back and face [were] riddled with glass" and glass in his left eye caused a loss of eye sight. ( Id. ) Plaintiff asserts that officers' actions "constitute[] cruel and unusual punishment" in violation of the Eighth Amendment of the Constitution of the United States. ( Id. )

A. Cruel and Unusual Punishment

The Eighth Amendment proscribes a freedom from cruel and unusual punishment. U.S. Constitution, amend. VIII. Although the only claim Plaintiff raises is a violation of the Eighth Amendment, the claim is based upon an incident at the time of his arrest. Significantly, the prohibition of cruel and unusual punishment takes effect only after conviction and sentencing. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001); see also Bell v. Wolfish, 441 U.S. 520, 535 n. 26 (1979) ("Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions"); Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002) ("Because [the plaintiff] has not been convicted of a crime, but had only been arrested, his rights derive from the due process clause rather than the Eighth Amendment's protection against cruel and unusual punishment"). Accordingly, Plaintiff is unable to state a claim for a violation of the Eighth Amendment's prohibition of cruel and unusual punishment.

B. Excessive Force Amounting to Punishment

The Supreme Court of the United States has determined that the Due Process Clause of the Fourteenth Amendment protects individuals who have not yet been convicted of a crime "from the use of excessive force that amounts to punishment." Graham v. Connor, 490 U.S. 386, 388 (1989). However, allegations of excessive force during the course of an arrest are analyzed under the Fourth Amendment, which prohibits arrests without probable cause or other justification. Id. ("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").

Although Plaintiff has not pleaded many facts in this action regarding the officers' shooting, he provided more information in a complaint previously filed on April 4, 2013, in Case No. 1:13-cv-00490-AWI-JLT, which alleged the same events against the same defendants.[1], [2] Previously, Plaintiff alleged that he was sitting in a stolen vehicle in the park, when an officer approached the vehicle and ordered Plaintiff to "get out of the car." Plaintiff alleged that he "jumped from the back of the SUV to the driver seat and started the vehicle." After Plaintiff started the car, "the driver side window was busted out, " and the vehicle was "riddled with bullets" as soon as he started driving in reverse, trying to "get away from the unknown people" shooting at him.

In any event, Plaintiff may be able to state a claim for the use of excessive force amounting to punishment in violation of the Fourth Amendment. However, because the facts are not alleged in the complaint now pending before the Court, the Court will grant Plaintiff an opportunity to provide further factual allegations in support of such a claim.[3]

VI. Conclusion and Order

Plaintiff has failed to state a cognizable claim for a violation of his constitutional rights pursuant to Section 1983. However, Plaintiff will be granted leave to amend the complaint to cure the deficiencies identified by the Court. See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987) (leave to amend must be given "unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment").

The amended complaint must reference the docket number assigned to this case and must be labeled "First Amended Complaint." Plaintiff is advised that an amended complaint supersedes all previously filed complaints. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997). The amended complaint must be "complete in itself without reference to the prior or superseded pleading." Local Rule 220. Thus, once Plaintiff files a First Amended Complaint, the original complaint no longer serves any function in the case. Finally, Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted).

Based upon the foregoing, IT IS HEREBY ORDERED:

1. Plaintiff's motion to proceed in forma pauperis is GRANTED;
2. Plaintiff's Complaint is DISMISSED with leave to amend;
3. Within twenty-one days from the date of service of this order, Plaintiff SHALL file an amended complaint curing the deficiencies identified by the Court in this order; and
4. If Plaintiff fails to comply with this order, the action will be dismissed for failure to obey a court order.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.