United States District Court, N.D. California
November 6, 2014
GABRIEL L. JORDAN, Plaintiff,
SAN FRANCISCO POLICE OFFICER ESPINOZA (#530), et al., Defendants.
ORDER OF SERVICE
YVONNE GONZALEZ ROGERS, District Judge.
Plaintiff has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, as well as a motion for leave to proceed in forma pauperis, which will be granted in a separate Order. Thereafter, he filed an amended complaint complaining that he was subjected to improper force during the course of his arrest on May 24, 2012. Dkt. 9.
Venue is proper because the events giving rise to the claim are alleged to have occurred in San Francisco County, which is located in this judicial district. See 28 U.S.C. § 1391(b).
In his amended complaint, Plaintiff names the following Defendants: San Francisco Police Officers Jonas (#79), Espinoza (#530), Ryan (#734), Mason (#1703), Maguire (#1158), Shablinskiy (#2262), Cabuntala (#1528), Junio (#1329), Hinds (#1132), Cunnie (#2324), Hui, and Liberta; as well as six unnamed California Highway Patrol Officers. Plaintiff seeks monetary damages.
I. Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
II. Legal Claims
A. Excessive Force
A claim that a law enforcement officer used excessive force in the course of an arrest or other seizure is analyzed under the Fourth Amendment reasonableness standard. See Graham v. Connor, 490 U.S. 386, 394-95 (1989); Forrester v. City of San Diego, 25 F.3d 804, 806 (9th Cir. 1994), cert. denied, 513 U.S. 1152 (1995). "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." See Graham, 490 U.S. at 396 (citations omitted).
Plaintiff alleges that he was subjected to excessive force during the course of his May 24, 2012 arrest by the aforementioned Defendants from the San Francisco Police Department ("SFPD") and California Highway Patrol ("CHP"). Specifically, Plaintiff alleges that he was pulled over around 11:00 pm on May 24, 2012, and was told to "lay face down in a surrendering position with [his] arms and legs spread apart." Dkt. 9 at 3. Plaintiff claims that he complied and that "about 6 CHP Officers surrounded [his] right side and the 12 SFPD Officers surrounded [his] left side." Id. Plaintiff claims that as he "layed [sic] there motionless, " one of the officers shouted, "Stop resisting!" Id. One of the CHP officers hit Plaintiff in the back of his head with a shotgun, the other SFPD officers held him down by standing on his hands and arms, and two other officers held him by his legs while "other officers kicked, punched, and slammed [his] head into the ground." Id. Plaintiff claims that he "went in and out of consciousness twice" and suffered a "seizure for the first time in [his] life." Id. He adds that the beating did not stop "until [his] heart and breathing stopped from the abuse." Id. Paramedics had to revive Plaintiff afterwards, and they took him to the hospital. Id. Plaintiff claims that Defendants' actions caused him to sustain injuries, including "numerous seizures, migraines, [and] back, right hip, right knee [and] right ankle pains." Id. Plaintiff also claims that he has a permanent limp and that he has to walk with a cane. Id.
Liberally construed, Plaintiff's amended complaint states a cognizable claim against the aforementioned named SFPD Defendants for a Fourth Amendment violation.
B. Claims Against Doe Defendants
Plaintiff identifies six CHP officers, whose name he intends to learn through discovery. The use of Doe Defendants is not favored in the Ninth Circuit. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). However, where the identity of alleged defendants cannot be known prior to the filing of a complaint the plaintiff should be given an opportunity through discovery to identify them. Id . Failure to afford the plaintiff such an opportunity is error. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). Accordingly, the claims against these Doe Defendants are DISMISSED from this action without prejudice. Should Plaintiff learn these Doe Defendants' identities through discovery, he may move to file an amendment to the amended complaint to add these Defendants as named defendants. See Brass v. County of Los Angeles, 328 F.3d 1192, 1195-98 (9th Cir. 2003).
For the foregoing reasons, the Court orders as follows:
1. Plaintiff states a cognizable Fourth Amendment claim for the use of excessive force against the aforementioned named SFPD Defendants.
2. The claims against the Doe Defendants are DISMISSED WITHOUT PREJUDICE.
3. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the amended complaint and all attachments thereto (Dkt. 9) and a copy of this Order to the following Defendants from the San Francisco Police Department: Officers Jonas (#79), Espinoza (#530), Ryan (#734), Mason (#1703), Maguire (#1158), Shablinskiy (#2262), Cabuntala (#1528), Junio (#1329), Hinds (#1132), Cunnie (#2324), Hui, and Liberta. The Clerk shall also mail a copy of the amended complaint and a copy of this Order to the City Attorney's Office in San Francisco. Additionally, the Clerk shall mail a copy of this Order to Plaintiff.
4. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure requires them to cooperate in saving unnecessary costs of service of the summons and amended complaint. Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of such service unless good cause be shown for their failure to sign and return the waiver form. If service is waived, this action will proceed as if Defendants had been served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer before sixty (60) days from the date on which the request for waiver was sent. (This allows a longer time to respond than would be required if formal service of summons is necessary.) Defendants are asked to read the statement set forth at the foot of the waiver form that more completely describes the duties of the parties with regard to waiver of service of the summons. If service is waived after the date provided in the Notice but before Defendants have been personally served, the Answer shall be due sixty (60) days from the date on which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever is later.
5. Defendants shall answer the amended complaint in accordance with the Federal Rules of Civil Procedure. The following briefing schedule shall govern dispositive motions in this action:
a. No later than sixty (60) days from the date their answer is due, Defendants shall file a motion for summary judgment or other dispositive motion. The motion must be supported by adequate factual documentation, must conform in all respects to Federal Rule of Civil Procedure 56, and must include as exhibits all records and incident reports stemming from the events at issue. A motion for summary judgment also must be accompanied by a Rand  notice so that Plaintiff will have fair, timely and adequate notice of what is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out in Rand must be served concurrently with motion for summary judgment). A motion to dismiss for failure to exhaust available administrative remedies must be accompanied by a similar notice. However, the Court notes that under the new law of the circuit, in the rare event that a failure to exhaust is clear on the face of the amended complaint, Defendants may move for dismissal under Rule 12(b)(6) as opposed to the previous practice of moving under an unenumerated Rule 12(b) motion. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that failure to exhaust available administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a defendant as an unenumerated Rule 12(b) motion). Otherwise if a failure to exhaust is not clear on the face of the amended complaint, Defendants must produce evidence proving failure to exhaust in a motion for summary judgment under Rule 56. Id. If undisputed evidence viewed in the light most favorable to Plaintiff shows a failure to exhaust, Defendants are entitled to summary judgment under Rule 56. Id. But if material facts are disputed, summary judgment should be denied and the district judge rather than a jury should determine the facts in a preliminary proceeding. Id. at 1168.
If Defendants are of the opinion that this case cannot be resolved by summary judgment, they shall so inform the Court prior to the date the summary judgment motion is due. All papers filed with the Court shall be promptly served on Plaintiff.
b. Plaintiff's opposition to the dispositive motion shall be filed with the Court and served on Defendants no later than twenty-eight (28) days after the date on which Defendants' motion is filed.
c. Plaintiff is advised that a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact - that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your amended complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradicts the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 F.3d at 962-63.
Plaintiff also is advised that - in the rare event that Defendants argue that the failure to exhaust is clear on the face of the amended complaint - a motion to dismiss for failure to exhaust available administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without prejudice. To avoid dismissal, you have the right to present any evidence to show that you did exhaust your available administrative remedies before coming to federal court. Such evidence may include: (1) declarations, which are statements signed under penalty of perjury by you or others who have personal knowledge of relevant matters; (2) authenticated documents - documents accompanied by a declaration showing where they came from and why they are authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements in your amended complaint insofar as they were made under penalty of perjury and they show that you have personal knowledge of the matters state therein. As mentioned above, in considering a motion to dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168.
(The notices above do not excuse Defendants' obligation to serve similar notices again concurrently with motions to dismiss for failure to exhaust available administrative remedies and motions for summary judgment. Woods, 684 F.3d at 935.)
d. Defendants shall file a reply brief no later than fourteen (14) days after the date Plaintiff's opposition is filed.
e. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the Court so orders at a later date.
6. Discovery may be taken in this action in accordance with the Federal Rules of Civil Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to depose Plaintiff and any other necessary witnesses confined in prison.
7. All communications by Plaintiff with the Court must be served on Defendants or their counsel, once counsel has been designated, by mailing a true copy of the document to them.
8. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court informed of any change of address and must comply with the Court's orders in a timely fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes while an action is pending must promptly file a notice of change of address specifying the new address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail directed to the pro se party by the Court has been returned to the Court as not deliverable, and (2) the Court fails to receive within sixty days of this return a written communication from the pro se party indicating a current address. See L.R. 3-11(b).
9. Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than fourteen (14) days prior to the deadline sought to be extended.
IT IS SO ORDERED.