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Narcisse v. Tafesse

United States District Court, N.D. California

July 5, 2016

DJOLIBA NARCISSE, Plaintiff,
v.
EZRA D. TAFESSE, et al., Defendants.

          ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK

          EDWARD J. DAVILA, UNITED STATES DISTRICT JUDGE

         Plaintiff, 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 separate order.

         DISCUSSION

         A. 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. 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).

         B. Plaintiff’s Claims

         Plaintiff 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).

         Plaintiff 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.

         Plaintiff 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.

         CONCLUSION

         For the reasons state above, the Court orders as follows:

         1. 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 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.

         With 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).

         Defendants at the Hercules Police Department are also requested to provide an address where Defendant Duff may be served, if known to them, in order ...


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