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Sienze v. Madera County Sheriff's Office

United States District Court, E.D. California

June 5, 2017

VICTOR M. SIENZE, Plaintiff,
v.
MADERA COUNTY SHERIFF'S OFFICE, Defendants.

          ORDER REQUIRING PLAINTIFF TO FILE A FIRST AMENDED COMPLAINT OR NOTIFY THE COURT OF INTENT TO PROCEED ON CLAIM FOUND TO BE COGNIZABLE (ECF No. 1)

         Plaintiff Victor M. Sienze is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff's complaint, filed May 30, 2017.

         I.

         SCREENING REQUIREMENT

         Nothwithstanding any filing fee, the district court must perform a preliminary screening and must dismiss a case if at any time the Court determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a claim). In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 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)(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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         In reviewing the pro se complaint, the Court is to liberally construe the pleadings and accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] complaint [that] pleads facts that are ‘merely consistent with' a defendant's liability . . . ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Therefore the complaint must contain sufficient factual content for the court to draw the reasonable conclusion that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678.

         II.

         COMPLAINT ALLEGATIONS

         Plaintiff is 72 years old, weighs 230 pounds, and is one hundred percent disabled. (Compl. 10, [1] ECF No. 1.) On May 24, 2016, Plaintiff's grandson was having seizures, hallucinations, and had quit breathing three times and Plaintiff had resuscitated him. (Compl. 10.) Plaintiff had called for an ambulance to get medical attention for his grandson. (Compl. 10.) Ambulance personnel called for sheriff's deputies although Plaintiff told them that the sheriff was not needed. (Compl. 10.)

         Officer Kutz drove up in his patrol vehicle and approached Plaintiff who had his 157 pound grandson on the grass. (Compl. 10.) Plaintiff was kneeling straddled across his grandson's waist and had his grandson's wrists pinned to the grass. (Compl. 10.) After his grandson was handcuffed with his hands behind his back and his legs hobbled together, Plaintiff's grandson was left face down on the grass. (Compl. 10.) Officer Kutz asked Plaintiff if this was his grandson three times and then asked if he was adopted. (Compl. 10.) Officer Kutz then asked for a gurney to be brought closer to the grandson. (Compl. 10.) Plaintiff's grandson was picked up and laid on the gurney on his stomach. (Compl. 10.) Plaintiff's grandson was in a slightly fetal position and Officer Kutz was pressing down on his backside and low back to try to flatten him out and ambulance personnel were pulling on his legs to help flatten his grandson out on his stomach face down. (Compl. 10.)

         Officer Kutz caused Plaintiff's grandson respiratory distress by placing his right knee across the side of his grandson's neck and throat while his grandson was offering no resistance. (Compl. 10.) Plaintiff expressed concern three times and told Officer Kutz that his grandson had stopped breathing three times and had to be resuscitated. (Compl. 10.) Plaintiff was deeply concerned for his grandson's life. (Compl. 10.) Plaintiff asked Officer Kutz if he was on antibiotic steroids as his reasoning seemed to be cognitively impaired. (Compl. 10.) Plaintiff told Officer Kutz that he was not going to stand by and watch Officer Kutz kill his grandson. (Compl. 10.)

         Plaintiff had been trained as a first responder in the military, as well as when working in mines here in California. (Compl. 10-11.) Plaintiff knows what to do in an emergency situation and knew that Officer Kutz was virtually doing everything wrong and was not acting in the scope of his duties. (Compl. 11.) Being forced to protect his grandson, Plaintiff reached over and pushed Officer Kutz on the shoulder with enough force so that Officer Kutz would step off of Plaintiff's grandson's neck and throat. (Compl. 11.)

         Plaintiff was then attacked by Officer Kutz who was joined by Sergeant Kebler. (Compl. 11.) Plaintiff told them that he was a disabled senior citizen, was on medication, and to get off of him because they were hurting him. (Compl. 11.) Plaintiff was face down on the grass and the officers were trying to force his hands behind his back. (Compl. 11.) Plaintiff told the officers that his arms did not bend behind his back and they were hurting him. (Compl. 11.)

         After Plaintiff was on handcuffed on the ground with his hands behind his back, Officer Kutz went over to his grandson behind the ambulance and placed his hand on the grandson's nose and with all the weight he could muster, smeared his grandson's nose all over his face and huffed at him. (Compl. 11.) Plaintiff was placed in the car face first with his hand tightly cuffed behind his back. (Compl. 11.) An officer forcefully smashed “endorser will times into his head” damaging his head and neck. (Compl. 11.)

         Plaintiff brings this action against Officer Kutz, Madera County Sheriff's Office, Deputy Roth, Sergeant Kerber, Sergeant Clark, and Officer Thomas alleging unreasonable search and seizure in violation of the Fourth Amendment, cruel and unusual punishment in violation of the Eighth Amendment, and elder abuse in violation of 42 U.S.C. § 3058i. Plaintiff is seeking monetary damages.

         III.

         DISCUSSION

         A. Defendant Liability

         Section 1983 provides a cause of action for the violation of a plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There is no respondeat superior liability under section 1983, and therefore, each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 677. To state a claim under section 1983, a plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Id.; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. This requires plaintiff to plead that the official has violated the Constitution through his own individual actions. Iqbal, 556 U.S. at 676; OSU Student Alliance v. Ray, 699 F.3d 1053, 1069 (9th Cir. 2012). In other words, to state a claim for relief under section 1983, Plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of Plaintiff's federal rights.

         Plaintiff's complaint is devoid of any factual allegations regarding Deputy Roth, Sergeant Clark, and Officer Thomas. As there are no factual allegations to show any act or failure to act on the part of these defendants, Plaintiff has failed to state a claim against Deputy Roth, Sergeant Clark, and Officer Thomas.

         Further, a local government unit may not be held responsible for the acts of its employees under a respondeat superior theory of liability. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Under Monell, 436 U.S. 658, “a municipality cannot be held liable under § 1983 solely because it employs a tortfeasor . . . in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” A municipality can only be held liable for injuries caused by the execution of its policy or custom or by those whose edicts or acts may fairly be said to represent official policy. Id. at 694. “A plaintiff may also establish municipal liability by demonstrating that (1) the constitutional tort was the result of a ‘longstanding practice or custom which constitutes the standard operating procedure of the local government entity;' (2) the tortfeasor was an official whose acts fairly represent official policy such that the challenged action constituted official policy; or (3) an official with final policy-making authority ‘delegated that authority to, or ratified the decision of, a subordinate.' ” Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (quoting Ulrich v. City & County of San Francisco, 308 F.3d 968, 984-85 (9th Cir.2002)).

         Plaintiff has not alleged that a policy existed that was the moving force behind his injury and the complaint includes no facts by which the Court can reasonably infer that any policy of the Madera County Sheriff's Department caused a violation of his federal rights. ...


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