United States District Court, E.D. California
TONY PHELPS, Sr. Plaintiffs,
FRESNO POLICE DEPT ARRESTING OFFICER KNOW AS JOHN DOE SG-ONE AND TRANSPORTING OFFICER KNOWN AS JOHN DOE SG-TWO, Defendants.
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIM (DOC. 16)
BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiff Tony Phelps, Sr. ("Plaintiff") is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. After dismissal of his initial complaint and his first amended complaint alleging excessive force and deliberate indifference to medical needs pursuant to 28 U.S.C. § 1915(a), Plaintiff filed a Second Amended Complaint ("SAC") on August 25, 2014, which is currently before the Court for screening. (Doc. 14).
The Court is required to screen complaints brought by persons proceeding in pro per. 28 U.S.C. § 1915A(a). Plaintiff's Complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks 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)(B)(ii).
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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted.
While persons proceeding in pro se actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff is currently incarcerated in the Fresno County Jail. In his SAC, Plaintiff alleges as follows: Plaintiff alleges he was arrested on January 6, 2014 for assault with a deadly weapon in an alleyway located at 1464 West Fresno Street at approximately 3:30 p.m. During his arrest, he came in contact with two police officers, John Doe SG-One (arresting officer) and John Doe SG-Two (transporting officer). Plaintiff alleges that John Doe SG-One acted in an "unprofessional manner, the medical mistreatment conduct took place in the alleyway." (Doc. 16. P. 3.) Plaintiff does not explain the conduct further.
Plaintiff alleges that at 4:30 p.m., he was placed inside the transportation van, and he began to feel faint. He alleges he has high blood pressure and heart condition. When he complained and asked for water, he was pulled out of the van and drug onto a dirt field, face down where "homeless use as a public restroom" and is "contaminated with human and animal fecises." Plaintiff began vomiting and some went onto the John Doe SG-One shoes, and John Doe SG-One put a spit mask on Plaintiff, which caused Plaintiff to drown in his own vomit. John Doe SG-One and John Doe SG-Two put Plaintiff in an ambulance, and Plaintiff was transported to Fresno Community Hospital mental ward rather than for medical treatment. At the mental ward, Plaintiff alleges he died and was revived. Plaintiff went into and out of consciousness and awoke with John Doe SG-Two "rubbing and pounding on my chest real hard." Plaintiff alleges John Doe SG-One also was sitting on top of Plaintiff hitting Plaintiff and twisting his arm. He had the spit mask on which inhibited his breathing. He said once he regained consciousness, the mental health doctor injected him with psychotic medication.
He alleges that his trial date was postponed and he is awaiting transportation to California Atascadero State Mental Hospital. Plaintiff seeks $300, 000.00 in damages.
Fourth Amendment - Excessive Force
A claim that a law enforcement officer used excessive force in the course of an arrest or other seizure and while an offender is detained post-arrest but pre-arraignment is analyzed under the Fourth Amendment reasonableness standard. Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "Determining whether the force used to effect a particular seizure is reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Graham, 490 U.S. at 396 (citations omitted). Whether a law enforcement officer's use of force was "objectively reasonable" depends upon the totality of the facts and circumstances confronting him. Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir.) (en banc) (quoting Graham, 490 U.S. at 397, 109 S.Ct. at 1872), cert. denied, 545 U.S. 1128, 125 S.Ct. 2938, 162 L.Ed.2d 866 (2005).
"The question is whether the officers' actions are objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 490 U.S. at 397 (citation omitted). Reasonableness must be assessed from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight, and must allow for the fact that "police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Graham, 490 U.S. 397.
The relevant factors in the Fourth Amendment reasonableness inquiry include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. While these are the most common considerations, they are not "a magical on/off switch that triggers rigid preconditions" to determine whether an officer's conduct constituted excessive force. Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1777, 167 L.Ed.2d 686 (2007). Consequently, courts consider other factors, such as the availability of alternative methods of capturing or detaining the suspect in determining reasonableness. Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir.1994), cert. denied, 513 U.S. 1148 (1995).
First, it is necessary to assess the quantum of force used. Here, several allegations comprise use of force. First, Plaintiff alleges he was pulled out of the van and drug onto the field. The three factors articulated in Graham, and other factors bearing on the reasonableness of a particular application of force, are not to be considered in a vacuum but only in relation to the amount of force used to effect a particular seizure. Chew, 27 F.3d at 1441. In this situation, the use of force (pulling Plaintiff out of the van and putting him to the ground) was minimal especially in light of the other Graham factors. Plaintiff has not stated sufficient facts to allege that John Doe SG-One and John Doe SG-Two were objectively unreasonable for taking Plaintiff out of the van and putting Plaintiff in the field following Plaintiff's complaints of feeling faint. Plaintiff fails to ...