United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT LAWSUIT PROCEED FOLLOWING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS (Doc. 13)
SANDRA M. SNYDER, Magistrate Judge.
On December 3, 2013, Plaintiff Eugene E. Forte, proceeding pro se and in forma pauperis in this action under 42 U.S.C. § 1983, alleged excessive force in executing an arrest and eighteen other counts against defendants City of Patterson, Patterson Police Department, Stanislaus County Sheriff's Department, Police Chief Tori Hughes, Deputy Chris Schwartz, and Stanislaus County Sheriff Adam Christianson. On January 10, 2014, the Court issued its first screening order, requiring Plaintiff, within thirty days, to either file an amended complaint or to notify the Court of his willingness to proceed only on those claims found to be cognizable. Plaintiff filed the first amended complaint on February 11, 2014.
Screening of the first amended complaint in accordance with the requirements of 28 U.S.C. § 1915 reveals that despite amendment, the first amended complaint includes certain claims that are not cognizable. Accordingly, this order recommends dismissal of noncognizable claims.
I. Screening Requirement
The court has inherent power to control its docket and the disposition of its cases with economy of time and effort for both the court and the parties. Landis v. North American Co., 299 U.S. 248, 254-55 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). In cases in which the plaintiff is proceeding in forma pauperis, the Court must screen the complaint and dismiss it at any time that the Court concludes that the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). "Notwithstanding any filing fee, or portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
In screening a complaint, the Court does not rule on the merits of the proposed action. Instead, it evaluates whether the complaint sets forth facts sufficient to render each claim cognizable. The screening process does not substitute for any subsequent Rule 12(b)(6) motion that a defendant may elect to bring later. Teahan v. Wilhelm, 481 F.Supp.2d 1115, 1120 (S.D. Cal. 2007).
II. Pleading Standards
Federal Rule of Civil Procedure 8(a) provides:
A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
"Each allegation must be simple, concise, and direct." F.R.Civ.P. 8(d).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions, " none of which applies here. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). Pursuant to 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Plaintiff must set forth sufficient factual matter accepted as true, to state a claim that is plausible on its face.'" Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678
Although accepted as true, "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 ( citations omitted ). A plaintiff must set forth "the grounds of his entitlement to relief, " which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 555-56 ( internal quotation marks and citations omitted ). To adequately state a claim against a defendant, the complaint must set forth the claim's legal and factual basis.
In dismissing the original complaint with leave to amend, this Court advised Plaintiff that he needed to allege facts to support many of his allegations. A fact is "[s]omething that actually exists; an aspect of reality." Black's Law Dictionary at 628 (8th ed. 2004). It is "[a]n actual or alleged event or circumstance, as distinguished from its legal effect, consequence, or interpretation." Id. In preparing the first amended complaint, Plaintiff has generally failed to provide the additional factual information requested by the Court, instead augmenting the original complaint with additional legal conclusions, personal interpretation, opinions, and arguments. In the absence of any factual basis, many of these opinions and interpretations are frivolous, fanciful, malicious, or apparently intended to harass one or more defendants. The Court is required to dismiss such claims. 28 U.S.C. § 1915(d)(2).
The first amended complaint also needlessly conflates claims relating to Officer Schwartz's arresting Plaintiff with Plaintiff's claims against officials in Merced County and the City of Los Banos. The first amended complaint includes no facts linking those claims to the arrest that gave rise to the cognizable claims in this action. In the complete absence of any factual evidence connecting an officer's use of excessive force in a Stanislaus County arrest with the unrelated disputes in Merced County, claims that the incidents are somehow related are merely speculative and cannot go forward.
In addition, Plaintiff's claims against Merced County and City of Los Banos officials are before this Court in other cases. Plaintiff is warned that unnecessary repetition of the same claims in multiple cases is abusive of the judicial process. "Flagrant abuse of the judicial process cannot be tolerated because it enables one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants." DeLong v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990).
III. Factual Allegations
Plaintiff publishes the Badger Flats Gazette, a blog that alleges corruption of judicial officers, public officials, and police officers. In 2003, Plaintiff ran for governor of California on a platform of exposing the corruption of political and judicial officials. The first amended complaint alleges details of Plaintiff's long history of poor relations with officials in the City of Los Banos and in Merced County, California, where he and his family formerly lived. Believing that continued residence in Merced County was not safe, Plaintiff and his family moved in July 2010 to the City of Patterson, Stanislaus County, California.
Since 1998, the Stanislaus County Sheriff's Department has contracted to provide police services to Patterson. www.scsdonline.com/patterson/ (June 18, 2014). Defendant Tori Hughes is the Patterson Police Services Chief. Defendant Hughes supervises all employees of Patterson Police Services, including Defendant Officer Schwartz and Officer Watkins, who is not named as a defendant in this action. Defendant Adam Christianson, the Stanislaus County Sheriff, supervises Defendant Hughes.
After Plaintiff and his family moved to Patterson, he and his wife met with Defendant Hughes to recount their difficulties in Merced County, including a series of communications that they believed to have been death threats. Plaintiff and his wife expressed concern that someone aggrieved by Plaintiff's activities in Merced County would seek further retribution against Plaintiff or a family member. Defendant Hughes told Plaintiff that "if law enforcement in the adjoining Merced County was not addressing law enforcement issues against themselves that Plaintiff could go to Stanislaus County as plaintiff was doing to report it." Doc. 13 at 5 ¶ 24.
On May 4, 2011, Plaintiff reported to a Patterson Police officer named Randy Watkins that he had been falsely arrested and was experiencing retaliation after he reported corruption involving Merced County District Attorney Larry Morse, Los Banos Mayor Tommy Jones, and Merced County Counsel James Fancher. On July 7, 2011, Officer Watkins reported the results of his investigation, which corroborated Plaintiff's allegations. Throughout 2012, Plaintiff contacted Defendant Hughes and Officer Watkins on many occasions.
On December 3, 2012, Plaintiff unsuccessfully attempted to call the FBI in Fresno twelve times. Each time, the receptionist hung up the phone when Plaintiff stated that he was recording the call. Plaintiff then sought to file a complaint with the Patterson Police to report the FBI's misconduct.
When officers arrived at Plaintiff's home, they refused to agree to Plaintiff's recording their conversation with him, even when Plaintiff explained that recording was necessary to protect Plaintiff from any future allegations that he had threatened law enforcement officers. Plaintiff also told the officers that he had been trying to reach Watkins and Defendant Hughes, but that neither had responded. Disclaiming any ability to compel a response from Watkins or Hughes, the officers walked away from Plaintiff's front porch, laughing and mocking Plaintiff. When Plaintiff attempted to call them back, one office waved bye-bye like a child but did not turn back.
While driving with his wife that evening, Plaintiff saw a Patterson police car in front of him. Knowing that Watkins frequently worked nights, Plaintiff flashed his headlights for the officer to stop. Defendant Schwartz then pulled over to speak to Plaintiff at the curb. Plaintiff audio-recorded Schwartz, and Mrs. Forte video-recorded the meeting on her cell phone. Schwartz was aware that he was being recorded.
Plaintiff asked Schwartz if he knew where Watkins was that night. Schwartz replied "brashly" and "in a rude tone" that he did not know if Watkins was on duty, but asked if he could help. Plaintiff explained that he had been leaving messages for Watkins but that Watkins had not called him back. Schwartz said that since September 10, 2012, Watkins had been given specific instructions for dealing with any police report Forte made concerning Merced County. As a result, Schwartz could not help Plaintiff, who would have to speak directly with Watkins. The complaint continues:
60. Deputy Schwartz said in an insulting, combative tone that he was "aware of all the nonsense[."] The exchange continued with Schwartz becoming more insulting and mocking with Schwartz getting back into his patrol car while [Plaintiff] was still asking for Schwartz to explain what "nonsense" was he aware of.
61. Schwartz then, in a rude, mocking, and insulting tone of voice, told [Plaintiff] that he should understand why Chief Hughes and Deputy Watkins had not called back was not because they were not doing their job but because it was not a law enforcement matter.
62. Schwartz told [Plaintiff] in a ridiculing tone that the FBI was not going to help him, the DA was not going to help him and they weren't going to help him. Schwartz operating under instructions of Hughes to humiliate, ignore and trivialize [Plaintiff].
63. Schwartz told [Plaintiff] with prodding hyperbole that if [Plaintiff's] problem was with law enforcement, why did he keep coming back to them? He was communicating to [Plaintiff] that [Plaintiff] was not going to receive any response, help, or action from law enforcement so [Plaintiff] may as well give up.
Doc. 13 at 12, ¶¶ 60, 61, 62, and 63.
Plaintiff responded, "What would you want me to do? Get a gun and shoot you guys? I am certainly not going to do that!" Doc. 13 at 12 ¶ 64. At that remark, Schwartz swung open his door, knocking Plaintiff backward. Plaintiff backed up six to ten feet and twice asked Schwartz why he had done that. Schwartz did not respond but grabbed for the recorder in Plaintiff's hand. Plaintiff had already handed it off to his wife. Schwartz pushed and pulled Plaintiff, who did not resist but attempted to avoid being injured.
Although Schwartz did not tell Plaintiff that he was under arrest, Schwartz told Plaintiff to put his hands behind his back to be handcuffed. Schwartz did not respond to Plaintiff's questions about why he was being arrested. Schwartz intentionally did not lock the handcuffs.
When Plaintiff had been handcuffed, Schwartz pushed Plaintiff face first into the ground and jumped on Plaintiff's back. Plaintiff continued to ask why he was being arrested. While slamming his elbow into Plaintiff's head and pushing his knee harder into Plaintiff's back, Schwartz finally responded that Plaintiff could not threaten to shoot police officers. Then, "[Plaintiff] was taken up off the ground and while standing in a neutral position, Schwartz then attacked [Plaintiff] by legging sweeping [ sic ] [Plaintiff] backward so that he landed on his back." Doc. 13 at 41, ¶ 73. During the course of the altercation, Watkins arrived, and an ambulance was called for Plaintiff.
Schwartz drove Plaintiff to Modesto Hospital, then to the county jail. Instead of taking Plaintiff directly to the hospital, Schwartz drove back and forth past the hospital and around the block several times, using a road with large dips to jar [Plaintiff] and cause the unlocked handcuffs to tighten and painfully injure Plaintiff's wrists.
Throughout the trip, Schwartz verbally abused, harassed, and humiliated Plaintiff by saying things such as "You need to understand, we're the boss. We're in charge"; "You and your family should move up in the mountains away from everybody, get out of Patterson"; and "Your kids wouldn't be so proud of you now seeing you in handcuffs." Doc. 13 at 11 ¶¶ 76 and 77. Schwartz also told Plaintiff that, while Schwartz would be going home to a nice dinner, Plaintiff would be eating bologna sandwiches and drinking sour milk, and that Plaintiff would be in jail for a long time unless he was independently wealthy. Schwartz's statements were intended to "provoke, demean, humiliate, harass and cause emotional distress." Doc. 13 at 15, ¶ 80. According to the complaint, they worked as intended: Plaintiff feared that Schwartz would stop the car and beat him.
Upon arriving at the hospital, Schwartz allowed Plaintiff to trail behind him "seeming to taunt [Plaintiff] into making a break for it' so that Schwartz could have a reason to shoot [Plaintiff], or tase him." Doc. 13 at 14 ¶ 78. Plaintiff suffered lumps on his head, lacerations on his arms and legs, back pain, and elevated blood pressure. His buttocks were bruised. He had a sharp pain in his neck, and pain and paralysis from his left elbow to his left thumb.
Upon arrival at the county jail, Schwartz told Plaintiff he had been arrested for "felony stupid." Doc. 1 at 11 ¶ 62. Schwartz patted down Plaintiff, found the recorder that had been running for the entire trip to the jail, and removed its batteries.
At booking, Plaintiff learned he had been arrested for threatening a public officer in violation of California Penal Code § 71. Plaintiff was later released on $20, 000 bail. On February 5, 2013, Stanislaus County District ...