United States District Court, N.D. California
ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE
DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION;
INSTRUCTIONS TO CLERK
J. DAVILA, UNITED STATES DISTRICT JUDGE
a California state prisoner, filed the instant pro
se civil rights action pursuant to 42 U.S.C. § 1983
against police officers at the Hercules Police Department
(“HPD”). Plaintiff’s motion for leave to
proceed in forma pauperis will be addressed in a
Standard of Review
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.
See 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. See id.
§ 1915A(b)(1), (2). Pro se pleadings must, however, be
liberally construed. See 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. See West v.
Atkins, 487 U.S. 42, 48 (1988).
claims that on January 29, 2012, while being detained at the
Hercules Police Department, Defendants Tafesse, Kim and
Vasquez took a blood sample by force when he refused to
submit to one. (Compl. Attach. at 1-4.) The force they
employed included slamming and squeezing Plaintiff’s
face into a concrete wall, and punching him in the head,
back, ribs and stomach. (Id. at 3.) Then Defendant
Duff, a phlebotomist, took two blood draws by sticking a
needle into Plaintiff’s right arm. (Id. at 4.)
Liberally construed, Plaintiff’s allegations are
sufficient to state a claim under the Fourth Amendment for an
unreasonable search and seizure, see Schmerber v.
California, 384 U.S. 757, 766-72 (1966); Ellis v.
City of San Diego, 176 F.3d 1183, 1191-92 (9th Cir.
1999), and under the Eight Amendment for excessive force,
see Pierce v. Multnomah County, Oregon, 76 F.3d
1032, 1043 (9th Cir. 1996), and denial of medical care,
see Estelle v. Gamble, 429 U.S. 97, 104 (1976).
also names Sergeant Eaves as a Defendant, claiming he
validated Defendant Tafesse’s “false”
police deport for driving under the influence, and he seeks
punitive damages against him. (Compl. Attach. at 7.) However,
this claim appears to attack the validity of a conviction
based on his allegation that the police report was falsified.
In order to recover damages for an allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a 42 U.S.C. § 1983 plaintiff must
prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a
writ of habeas corpus. Heck v. Humphrey, 512 U.S.
477, 486-487 (1994). A claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983. Id.
at 487. Accordingly, this claim for damages against Defendant
Eaves is DISMISSED as barred by Heck. Id.
also names as defendants an “U[n]known Captain”
and Chief of Police William Goswick, claiming that their
“failure to take action to curb the physical abuse of
arrestee’s violated the plaintiff’s rights under
the Fourth and Eighth Amendment.” (Compl. Attach. at
8.) A supervisor may be liable under § 1983 upon a
showing of (1) personal involvement in the constitutional
deprivation or (2) a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional
violation. Henry A. v. Willden, 678 F.3d 991,
1003-04 (9th Cir. 2012) (citing Starr v. Baca, 652
F.3d 1202, 1207 (9th Cir. 2011)); Starr v. Baca, 652
F.3d 1202, 1207 (9th Cir. 2011); Redman v. County of San
Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc).
Here, there is no allegation that the Defendants
“Captain” and Goswick were personally involved in
the forced blood draw or the denial of medical care
thereafter. Nor is there any allegation that these Defendants
were even aware of the incident such that they could have
intervened, and yet failed to do so. Furthermore, under no
circumstances is there respondeat superior liability under
section 1983. Or, in layman's terms, under no
circumstances is there liability under section 1983 solely
because one is responsible for the actions or omissions of
another. See Taylor v. List, 880 F.2d 1040, 1045
(9th Cir. 1989). Accordingly, the claims against these
defendants are DISMISSED for failure to state a claim.
reasons state above, the Court orders as follows:
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 complaint, all attachments
thereto, and a copy of this order upon Defendants Officers
Ezra D. Tafesse, J. Vasquez, and C. Kim at the Hercules
Police Department (111 Civic Drive, Hercules, CA 94547). The
Clerk shall also mail a copy of this Order to Plaintiff.
respect to Defendant Dianna L. Duff, Plaintiff describes her
as the “Phlebotomist of CML” and states that her
employment address is unknown. (Compl. at 2.) While
incarcerated plaintiffs proceeding IFP may rely on service by
the U.S. Marshals, see Puett v. Blandford, 912 F.2d
270, 275 (9th Cir. 1990), “a plaintiff may not remain
silent and do nothing to effectuate such service. At a
minimum, a plaintiff should request service upon the
appropriate defendant and attempt to remedy any apparent
defects of which [he] has knowledge.” Rochon v.
Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). If the
marshal is unable to effectuate service through no fault of
his own, e.g., because plaintiff failed to provide sufficient
information or because the defendant is not where plaintiff
claims, and plaintiff is informed, plaintiff must seek to
remedy the situation or face dismissal. See Walker v.
Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994), abrogated
on other grounds by Sandin v. Conner, 515 U.S. 472
(1995) (prisoner failed to show cause why prison official
should not be dismissed under Rule 4(m) because prisoner did
not prove that he provided marshal with sufficient
information to serve official or that he requested that
official be served). If service of the summons and complaint
is not made upon a defendant in 90 days after the filing of
the complaint, the action must be dismissed without prejudice
as to that defendant absent a showing of “good
cause.” Fed.R.Civ.P. 4(m). Ninety days have already
passed since the filing of this action on February 10, 2016.
(ECF No. 1.) Accordingly, the action may be dismissed without
prejudice as to Defendant Duff unless Plaintiff provides
sufficient information to enable the marshal to effectuate
service. Plaintiff is hereby directed to provide an address
where Defendant Duff may be served no later than twenty-eight
(28) days from the date this order is filed to avoid
dismissal of the claims against her under Rule 4(m).
at the Hercules Police Department are also requested to
provide an address where Defendant Duff may be served, if
known to them, in order ...