United States District Court, E.D. California
ORDER DENYING DEFENDANT CITY OF TULARE'S MOTION
TO DISMISS AS MOOT AND REQUIRING PLAINTIFF TO EITHER FILE
AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED
ONLY ON EXCESSIVE FORCE AND UNREASONABLE SEARCH AND SEIZURE
CLAIMS AGAINST JOSE COLEGIO TWENTY-ONE (21) DAY DEADLINE
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Randy Langley, is a prisoner in the custody of the California
Department of Corrections and Rehabilitation and is housed at
the Sierra Conservation Center. On February 5, 2016,
Plaintiff, proceeding pro se, filed a civil rights
complaint in the Superior Court of California, County of
Tulare, against Defendants “Tulare Police Department,
” “Officer Colejio, ” and “Doe
1.” (Doc. 2, Ex. 1 at 7-11.) Defendant City of Tulare
(erroneously named as “Tulare Police Department”)
filed its answer in state court and, on March 10, 2016,
removed the action to this Court. (Doc. 2.) On July 20, 2017,
Plaintiff filed an application to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915, which was
granted on August 4, 2017. (Doc. 49.) The Court then vacated
the dates set in the Court's scheduling order until the
Complaint had been screened and cognizable claims had been
found on which Plaintiff may proceed. (See id.)
September 19, 2017, the undersigned found that Plaintiffs
Complaint failed to state a cognizable federal claim. (Doc.
56.) Plaintiff was provided with the applicable legal
standards so that he could determine if he would like to
pursue his case, and was granted thirty (30) days leave to
file an amended complaint curing the pleading deficiencies
identified in the order. (Id.) On October 20, 2017,
Plaintiff filed a First Amended Complaint against “Jose
Colegio” and “Tulare Police Department”
(collectively “Defendants”). (Doc. 57
(“First Am. Compl.”).) On November 3, 2017,
Defendant City of Tulare filed a Motion to Dismiss Plaintiffs
First Amended Complaint pursuant to Fed. R. 12(b)(6). (Doc.
First Amended Complaint is now before the Court for
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).
Plaintiffs First Amended Complaint, or any portion thereof,
is subject to dismissal if it is frivolous or malicious, if
it fails to state a claim upon which relief may be granted,
or if it seeks 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)-(ii). If an action is
dismissed on one of these three bases, a strike is imposed
per 28 U.S.C. § 1915(g). An inmate who has had three or
more prior actions or appeals dismissed as frivolous,
malicious, or for failure to state a claim upon which relief
may be granted, and has not alleged imminent danger of
serious physical injury does not qualify to proceed in
forma pauperis. See 28 U.S.C. § 1915(g); Richey
v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015).
1983 “provides a cause of action for the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws of the United States.” Wilder
v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)
(quoting 42 U.S.C. § 1983). Section 1983 is not itself a
source of substantive rights, but merely provides a method
for vindicating federal rights conferred elsewhere.
Graham v. Connor, 490 U.S. 386, 393-94 (1989).
state a claim under § 1983, a plaintiff must allege two
essential elements: (1) the violation of a right secured by
the Constitution or laws of the United States, and (2) 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); Ketchum v. Alameda Cnty., 811 F.2d 1243,
1245 (9th Cir. 1987).
Summary of the First Amended Complaint
is currently in state custody at Sierra Conservation Center.
Plaintiff complains of acts that occurred prior to being in
custody, which Plaintiff avers are “unrelated to the
present charges convictions” for which he is presently
incarcerated. (First Am. Compl. at 8.) Plaintiff names Jose
Colegio and City of Tulare (erroneously named as
“Tulare Police Department”) as defendants in this
action and seeks monetary damages and that a
“restraining order be put in place protecting him and
his family from future harassment from Tulare Police
Department officers.” (Id. at 5.)
alleges that on March 25, 2015, Plaintiff was stopped by
Defendant Jose Colegio, an officer with the Tulare Police
Department, who “asked” to speak with him with
“no warrant, no suspect” [sic] “under the
pretense of consensual conversation” and without
informing him of the reason for his detention. (First Am.
Compl. at 7, 8.) According to Plaintiff, Defendant Colegio
“had no prior contact with Plaintiff nor knowledge of
Plaintiff[‘s] status of PCRST probation/parole, ”
and informed Plaintiff he “was not being detained nor
under arrest.” (Id. at 7.) Plaintiff alleges
that when he attempted to leave, Defendant Colegio grabbed
Plaintiffs arm and attempted a “leg sweep.”
(Id.at 8.) Plaintiff contends that when he asked
Defendant Colegio “what's going on?, ”
Defendant Colegio pulled his police-issued taser and pointed
it at Plaintiff. (Id.) According to Plaintiff, he
then put his hands on top of his head with his legs spread
and was in a “non-combative, visual pat down stance,
” whereupon Defendant Colegio fired his taser at
Plaintiff, striking him in the face and lower abdomen.
(Id. at 7, 8.) Plaintiff alleges that he had no
warrants, was not a suspect, and was not wanted by any law
enforcement agency at the time of the incident.
alleges that Defendant City of Tulare “failed to hold
[Defendant Colegio] accountable” and “failed to
train [Defendant Colegio] in proper administration of law
enforcement techniques and protection of its citizens.”
(First Am. Compl. at 2.) Plaintiff alleges further that
Defendant City of Tulare “is responsible for the
deprivation of Plaintiff s rights” because it
“failed to adequately train [Defendant Colegio]”
and for “maintaining unconstitutional customs,
practices, or policies.” (Id. at 3.)
allegations state cognizable claims for excessive force and
unreasonable search and seizure in violation of the Fourth
Amendment against Defendant Jose Colegio, on which he should
be allowed to proceed. However, for the reasons discussed in
detail below, Plaintiff fails to state any other cognizable
claims. He is provided the applicable legal standards for his
stated claims and an opportunity to file an amended complaint
to attempt to cure the defects in his pleading. Thus,
Plaintiff may choose to proceed on his excessive force and
unreasonable search and seizure claims against Defendant
Colegio, or he may attempt to cure the defects in his
pleading by filing a second amended complaint.
Federal Rule of Civil Procedure 8(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)).
While a plaintiffs allegations are taken as true, 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). 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.
proceeding pro se are entitled to have their pleadings
liberally construed and to have any doubt resolved in their
favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.
2010) (citations omitted). However, “the liberal
pleading standard . . . applies only to a plaintiffs 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, 572 F.3d at 681. To survive screening,
Plaintiffs claims must be facially plausible, which requires
sufficient factual detail to allow the Court to reasonably
infer that each named defendant is liable for the misconduct
alleged. Iqbal, 556 U.S. at 678 (quotation marks
omitted); Moss v. United States Secret Service, 572
F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a
defendant acted unlawfully is not sufficient, and mere
consistency with liability falls short of satisfying the
plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
chooses to file a second amended complaint, Plaintiff should
make it as concise as possible. Plaintiff should state which
of his constitutional rights he believes were violated by
each Defendant and the facts that support each contention.
Plaintiff need not and should not cite legal authority for
his claims in a second amended complaint. If Plaintiff files
a second amended complaint, his factual allegations will be
screened under the legal standards and authorities set forth
in this order.