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Langley v. Tulare Police Department

United States District Court, E.D. California

November 14, 2017

RANDY LANGLEY, Plaintiff,
v.
TULARE POLICE DEPARTMENT and JOSE COLEGIO, Defendants.

          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 (DOC. 58)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Plaintiff, 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.)

         On 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. 58.)

         Plaintiffs First Amended Complaint is now before the Court for screening.

         II. SCREENING REQUIREMENT

         The 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).

         Section 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).

         To 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).

         III. DISCUSSION

         A. Summary of the First Amended Complaint

         Plaintiff 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.)

         Plaintiff 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. (Id.)

         Plaintiff 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.)

         Plaintiffs 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.

         B. Pleading Requirements

         1. 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)). 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.

         Persons 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.

         If he 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.

         2. ...


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