United States District Court, E.D. California
VICTOR M. SIENZE, Plaintiff,
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)
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.
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)).
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.
is 72 years old, weighs 230 pounds, and is one hundred
percent disabled. (Compl. 10,  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.
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.)
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.)
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.)
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.)
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.)
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.
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.
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
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)).
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. ...