United States District Court, E.D. California
ORDER DIMISSING THE COMAPLINT WITH LEAVE TO AMEND OR
ALLOWING PLAINTIFF TO NOTIFY COURT OF WILLINGNESS TO PROCEED
ONLY ON CLAIMS FOUND TO BE COGNIZABLE AND NOT BARRED (DOC.
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
action, Plaintiff alleges that he was brutalized by police
officers when he was arrested, that he did not receive proper
medical treatment for his injuries, and that the brutality he
was subjected to during his arrest and various conditions of
his confinement were in retaliation for his family wining a
prior lawsuit against the Bakersfield Police Department
regarding the death of his cousin. Plaintiff has stated one
cognizable claim and may be able to correct the deficiencies
in his pleading on other claims. Thus, the Court will allow
Plaintiff to file a first amended complaint correcting the
deficiencies or to advise the Court that he is willing to
proceed only on the claims found cognizable herein.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally frivolous,
malicious, fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A(b)(1), (2);
28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
sets forth three claims against eight Doe defendants: (1) for
excessive force, unlawful detention, and illegal search and
seizure (Doc. 1, pp. 5-6): (2) for medical malpractice
(id., pp. 7-8); and (3) for cruel and unusual
punishment and retaliation (id., pp. 9-10). Though
Plaintiff is currently housed at the Central Valley Modified
Community Correctional Facility (CVMCCF) in McFarland,
California, the events underlying his claims in this action
occurred in Bakersfield, California.
has stated some cognizable claims and may be able to amend to
correct the deficiencies in his pleading as to others. Thus,
the Court provides the applicable standards related to his
purported claims and leave to file a second amended
complaint. Alternatively, Plaintiff may notify the Court that
he wishes to proceed only on the claims now cognizable.
Federal Rule of Civil Procedure 8(a)
8(a)'s simplified pleading standard applies to all civil
actions, with limited exceptions, ” none of which
applies to section 1983 actions. Swierkiewicz v. Sorema
N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 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. Pro. 8(a). “Such a statement
must simply give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.” Swierkiewicz, 534 U.S. at 512.
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), quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). Plaintiff must set forth “sufficient factual
matter, accepted as true, to ‘state a claim that is
plausible on its face.'” Iqbal, 556 U.S.
at 678, quoting Twombly, 550 U.S. at 555. Factual
allegations are accepted as true, but legal conclusions are
not. Iqbal. at 678; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009);
Twombly, 550 U.S. at 556-557.
“plaintiffs [now] face a higher burden of pleadings
facts . . ., ” Al-Kidd v. Ashcroft, 580 F.3d
949, 977 (9th Cir. 2009), the pleadings of pro se
prisoners are still construed liberally and are afforded the
benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338,
342 (9th Cir. 2010). However, “the liberal pleading
standard . . . applies only to a plaintiff's factual
allegations, ” Neitze v. Williams, 490 U.S.
319, 330 n.9 (1989), “a liberal interpretation of a
civil rights complaint may not supply essential elements of
the claim that were not initially pled, ” Bruns v.
Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th
Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d
266, 268 (9th Cir. 1982), and courts are not required to
indulge unwarranted inferences, Doe I v. Wal-Mart Stores,
Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal
quotation marks and citation omitted). The “sheer
possibility that a defendant has acted unlawfully” is
not sufficient, and “facts that are ‘merely
consistent with' a defendant's liability” fall
short of satisfying the plausibility standard.
Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949;
Moss, 572 F.3d at 969.
chooses to file a first amended complaint, Plaintiff should
make it as concise as possible. He should simply state which
of his constitutional rights he feels were violated by each
Defendant and factual basis. Where the allegations against
two or more Defendants are factually intertwined, Plaintiff
need not repeat the factual allegations separately against
each Defendant. Rather, Plaintiff should present his factual
allegations and identify the Defendants he feels are thereby
Civil Rights Act (42 U.S.C. § 1983) requires that there
be an actual connection or link between the actions of the
defendants and the deprivation alleged to have been suffered
by Plaintiff. See Monell v. Department of Social
Services, 436 U.S. 658 (1978); Rizzo v. Goode,
423 U.S. 362 (1976). The Ninth Circuit has held that
“[a] person ‘subjects' another to the
deprivation of a constitutional right, within the meaning of
section 1983, if he does an affirmative act, participates in
another's affirmative acts or omits to perform an act
which he is legally required to do that causes the
deprivation of which complaint is made.” Johnson v.
Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In order 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
must clearly identify which Defendant he feels is responsible
for each violation of his constitutional rights and the
factual basis for the claim so that each Defendant is placed
on notice of the claims against him or her. See Austin v.
Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).
Claim I (Doc. 1, pp. 5-6)
alleges that, on July 2, 2016, four Bakersfield police
officers entered his house through the front door, with their
guns drawn, without a warrant and without knocking. Plaintiff
was sitting on the floor by the front door when they came in.
Doe Officer #1 (D/O #1) ordered Plaintiff's mother,
father, and fiancé (who was holding their 3 year old
son) to get out of the house. D/O #1 held his family outside
with his gun drawn.
#2, #3, and #4 held Plaintiff inside, still sitting on the
floor. D/O #2 stood directly behind Plaintiff while D/Os #3
and #4 stood in front of Plaintiff to his right and left,
respectively. While standing behind Plaintiff, D/O #1 asked
Plaintiff's name, which Plaintiff stated. D/O #1 then
closed the front door and told Plaintiff to lay face down. As
Plaintiff complied, D/O #2 jumped on Plaintiff's back,
pulled his head all the way back, and sprayed Plaintiff in
the face with O.C. spray. At the same time, D/O #3 pulled out
his baton and started to hit Plaintiff's legs numerous
times -- ultimately breaking his left leg. While this was
going on, D/O #4 started to kick Plaintiff and grabbed
Plaintiff's left arm, breaking it with a hard twist.
During this, Plaintiff was choking and trying to yell for
help. At one point, D/O #2 stopped hitting Plaintiff's
legs with his baton and said to D/Os #3 and #4
“let's give him the Lopez treatment.” D/O #2,
#3, and #4 drew their guns at Plaintiff and D/O #4 yelled
“Gun!” At that very moment, Plaintiff's
fiancé moved past D/O #1 and came through the front
door. D/Os #2, #3, and #4 turned their guns toward her and
their son and D/O #4 told her “get the fuck out of here
or the same will happen to you.” D/O #2 put his gun
away, grabbed Plaintiff's arms and put him in handcuffs.
D/Os #2 and #4 grabbed Plaintiff's arms and drug him to
the squad car because he could not walk. D/O #3 came to the
Plaintiff in the care and told Plaintiff to tell him where
the DVR to Plaintiff's security camera was. Plaintiff did
not tell him. Thereafter, D/O #1 drove Plaintiff to kern
Medical Center Hospital to be treated.
Fourth Amendment prohibits unreasonable searches and
seizures. The use of excessive force to effect an arrest is
analyzed under the standards of the Fourth Amendment.
Graham v. Connor, 490 U.S. 386, 394 (1989) (citing
Tennessee v. Garner, 471 U.S. 1, 7-22 (1985)).
“[R]easonableness is always the touchstone of Fourth
Amendment analysis, ” Birchfield v. North
Dakota, 579 U.S. ___, ___, 136 S.Ct. 2160, 2186 (2016),
and “. . . is generally assessed by carefully weighing
the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the
importance of the governmental interests alleged to justify
the intrusion.'” Cty. of Los Angeles, Calif. v.
Mendez, ___ U.S. ___, 137 S.Ct. 1539, 1546-47 (2017)
(quoting Garner, 471 U.S. at 8).
Supreme Court's rulings have set forth a settled and
exclusive framework for analyzing whether the force used in
making a seizure complies with the Fourth Amendment.
Mendez, 137 S.Ct. at 1546-47 (citing
Graham, 490 U.S., at 395). “Determining
whether the force used to effect a particular seizure is
‘reasonable' ” requires balancing of the
individual's Fourth Amendment interests against the
relevant government interests. Graham., at 396, 109
S.Ct. 1865. The operative question in excessive force ...