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Smith v. Aubuchon

United States District Court, E.D. California

August 31, 2017

WILLIAM GRANVILLE SMITH, Plaintiff,
v.
B. AUBUCHON, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          CRAIG M. KELLISON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' unopposed motion to dismiss (Doc. 61).

         I. PLAINTIFF'S ALLEGATIONS

         This action proceeds on plaintiff's second amended complaint, captioned “Second Amended Complaint as to Genuine Facts of Excessive Force - “Taser Use” (underlining in original). Attached to the amended complaint and incorporated by reference is a “Supplemental Report” prepared by defendant James, a police officer with the Sacramento County Sheriff's Department. The report states:

1432 Hrs, 1-4-2011, I, Officer M. James . . . was on patrol when a dispatch call of an armed bank robbery was dispatched from the First Bank located at 2880 Sunrise Bl.
I asked dispatch for the nearest cross street and advised I would be checking the area. Dispatch advised the suspect was a black male adult wearing a gray suit with stripes and armed with a large handgun.
I check the businesses in the surrounding area north of the bank. An officer advised radio dispatch to contract the RT light rail and have them check their cameras. At that time, I drove to the corner of Sunrise Gold Center and Sunrise Bl. and noticed what appeared to be a black male adult, later identified as S-1 William GRANVILLE, standing inside the business at the time. I saw GRANVILLE was wearing an oversize coat and hair pulled back in a pony tail. As I drove north in Sunrise Bl. I also saw a bicycle laying down in front of the business.
I then rode to the RT light rail station to check for the person matching the description. I did not see anyone matching that description. At that time, Officer Aubuchon . . . met up with me and I relayed to him the information regarding the subject inside the restaurant. Officer Aubuchon and I then rode back to the business, riding through the parking lot from the south around to the front. GRANVILLE was still inside and Officer Aubuchon thought he to be wearing jeans. We drove to the front of the business and parked in the parking lot just north, waiting for the person to exit.
1451 HRS: GRANVILLE exited the business, carrying a food bag. He picked up the bicycle that was placed near the front door. At that time, Officer Aubuchon noticed GRANVILLE to be wearing gray striped slacks which was the description given in the call. As GRANVILLE rode north through the parking lot, Officer Aubuchon asked if he could talk to him. GRANVILLE looked back at us and continued to ride away from us. Officer Aubuchon, this time using his PA, asked GRANVILLE if we could speak with him. GRANVILLE started pedaling faster as he rode up and over the grassy knoll and continued north on Sunrise Bl.
We then rode our marked police motorcycles over the same grassy knoll and drove north. I was in front of Officer Aubuchon as he radioed dispatch that we had a person matching the description riding a bicycle away from us. As I was closing in on GRANVILLE, I could see he was reaching towards his waistband with his right hand as he controlled the handlebars with his left. I caught up to him as he placed both hands on the handlebars and I ordered him to stop his bicycle. GRANVILLE continued pedaling faster away. I positioned my motorcycle as close to the sidewalk as I could and I pushed GRANVILLE in his left shoulder with my right hand. GRANVILLE rode towards the edge of the sidewalk and off into the field causing him to flip over the handlebars where he came to rest on his stomach.
Officer Aubuchon and I parked in the gas station parking lot and dismounted. GRANVILLE was now on his feet and trying to retrieve his bicycle from the tangled weeds and grass. GRANVILLE had his back to us and I could not see his front side or his hands. We ordered GRANVILLE to get on the ground which he did not comply. Officer Aubuchon had GRANVILLE at gunpoint as I drew my taser. I ordered GRANVILLE to get on the ground which he did not comply. At that timed, I yelled taser, taser, taser to let Officer Aubuchon know I was deploying my taser. I deployed my taser . . . from approximately 10 feet away. GRANVILLE then fell forward onto the ground with his arms under his torso. Officer Aubuchon along with Officer Baldwin then approached GRANVILLE, still ordering him to show his hands. I maintained taser trigger pull due to the fact GRANVILLE would not show his hands and the call had indicated a large firearm was seen in the waistband. Officer Aubuchon handcuffed GRANVILLE without further incident.

         It is worth noting that plaintiff was granted leave to file a second amended complaint following this court's denial of defendants' prior motion to dismiss. Specifically, while the court agreed with defendants that plaintiff's first amended complaint failed to state any claims for relief, plaintiff had alleged new facts in opposition to defendants' prior motion warranting leave to amend. The court observed:

. . . In his opposition, plaintiff argues:
Defendants James and Aubuchon use of excessive force is shown by not properly call for an ambulance or seek any medical for the ...

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