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Raymond v. Martin

United States District Court, E.D. California

May 2, 2018

JAMES RAYMOND, successor in interest to decedent Augustus Joshua Crawford, Plaintiff,
WARREN MARTIN, et al., Defendants.



         James Raymond seeks to proceed pro se and in forma pauperis in this action as the successor in interest to his deceased son, Augustus Joshua Crawford. Plaintiff asserts officers with the Bakersfield Police Department were pursuing Crawford, who exited his vehicle “and began running from pursuing law enforcement officers in attempting to elude arrest.” (Doc. 1 at 2-3) Plaintiff contends Warren Martin became enraged that he could not catch up to Crawford, so he shot Crawford in the back. (Id. at 2) Plaintiff asserts the defendants are liable for negligence, assault, battery, and violations of Crawford's civil rights arising under the Fourth and Fourteenth Amendments to the United States Constitution.

         For the reasons set forth below, Plaintiff's motion to proceed in forma pauperis is granted. In addition, the Court finds Plaintiff alleges facts sufficient to support his claim for a violation of Crawford's constitutional rights to be free from the use of excessive force. However, he fails to allege cognizable claims under state law due to his failure to plead compliance with the Tort Claims Act. Therefore, Plaintiff is instructed to either file a First Amended Complaint or notify the Court of his willingness to proceed only on the cognizable claim.

         I. Proceeding in forma pauperis

         The Court may authorize the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such person . . . possesses [and] that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a). The Court reviewed the financial status affidavit (Doc. 3), and finds the requirements of 28 U.S.C. § 1915(a) are satisfied. Therefore, Plaintiff's request to proceed in forma pauperis is GRANTED.

         II. Screening Requirement

         When an individual seeks to proceed in forma pauperis, the Court is required to review the complaint and shall dismiss a complaint, or portion of the complaint, if it is “frivolous, malicious or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2).

         A plaintiff's claim is frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). In other words, a complaint is frivolous where the litigant sets “not only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

         III. Pleading Standards

         General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A complaint must include a statement affirming the court's jurisdiction, “a short and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may include relief in the alternative or different types of relief.” Fed.R.Civ.P. 8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to “less stringent standards” than those drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972).

         A complaint must state the elements of the plaintiff's claim in a plain and succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The purpose of a complaint is to give the defendant fair notice of the claims against him, and the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). The Court clarified further,

[A] complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Citation.] A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation.] The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation.] Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'

Iqbal, 556 U.S. at 678 (citations omitted). If factual allegations are well-pled, a court should assume their truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in the pleading are not entitled to the same assumption of truth. Id.

         The Court has a duty to dismiss a case at any time it determines an action fails to state a claim. 28 U.S.C. § 1915e(2). Accordingly, a court “may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a claim.” See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1357 at 593 (1963)). However, the Court may grant leave to amend a complaint to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).

         IV. Plaintiff's Standing

         A. Survivor Claims

         “In a survival action, a decedent's estate may recover damages on behalf of the decedent for injuries that the decedent has sustained.” Davis v. Bender Shipbuilding & Repair Co., 27 F.3d 426, 429 (9th Cir. 1994). Plaintiff seeks to state a Section 1983 claim for violations of the Fourth and Fourteenth Amendments on behalf of his deceased son, Augustus Joshua Crawford. See Hayes, 736 F.3d at 1128-29. Survivors of an individual may bring claims arising under 42 U.S.C. § 1983 “if the relevant state's law authorizes a survival action.” Hayes v. County of San Diego, 736 F.3d 1223, 1228 (9th Cir. 2013) (quoting Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998)). “The party seeking to bring a survival action bears the burden of demonstrating that a particular state's law authorizes a survival action and that the plaintiff meets that state's requirements for bringing a survival action.” Id., 736 F.3d at 1228-29.

         To determine whether a plaintiff may bring a survivor action, the Ninth Circuit instructs that the Court rely upon California Code of Civil Procedure Section 377.30 rather than Section 377.60. Hayes, 736 F.3d at 1129. In relevant part, Section 377.30 provides that “[a] cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest ... and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest.” Cal. Code Civ. P. § 377.30. Thus, a Section1983 survival claim may be prosecuted by a successor in interest “[w]here there is no personal representative for the estate” and “if the person purporting to act as a successor in interest satisfies the requirements of California law.” Tatum v. City & County of S.F., 441 F.3d 1090, 1093 n.2 (9th Cir. 2006).

         California law requires any person seeking to commence an action pursuant to section 377.30 execute and file an affidavit setting forth that person's qualifications as a successor. Cal. Civ. Proc. Code § 377.32. See also Nishimoto v. Cnty. of San Diego, 2016 WL 8737349, at *4 (S.D. Cal. Nov. 4, 2016) (finding the plaintiff had sufficiently alleged she had standing to bring claims as successor in interest for her deceased son because she submitted a declaration that complied with the requirements of section 377.32). Specifically, California law provides:

         The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

(1) The decedent's name.
(2) The date and place of the decedent's death.
(3) “No proceeding is now pending in California for administration of the decedent's estate.”
(4) If the decedent's estate was administered, a copy of the final order showing the distribution of the decedent's cause of action to the successor in interest.
(5) Either of the following, as appropriate, with facts in support thereof:
(A) “The affiant or declarant is the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent's interest in the action or proceeding.”
(B) “The affiant or declarant is authorized to act on behalf of the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent's interest in the action or proceeding.”

Cal. Civ. Proc. Code § 377.32(a). In addition, the affiant must affirm that “[n]o other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.” Id., ยง 377.32(a)(6). A certified copy of the decedent's death ...

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