United States District Court, E.D. California
ORDER GRANTING PLAINTIFF LEAVE TO FILE A SECOND
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
Joe Pearson is proceeding pro se and in forma
pauperis with an action for a violation of his civil
rights against the Bakersfield Police Department, asserting
its officers used excessive force after he surrendered to an
arrest. (Doc. 7) Because Plaintiff fails to identify facts
sufficient to support his claims against the defendants
identified, the Court will grant him leave to file a second
individual seeks to proceed in forma pauperis, the
Court is required to review the complaint and shall dismiss a
complaint or claim, 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 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).
Court must review Plaintiff's First Amended Complaint
because it supersedes the previously filed complaint. See
Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997);
King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
rules for pleading complaints are governed by the Federal
Rules of Civil Procedure. A pleading 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).
complaint must give fair notice and 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 the complaint is to
inform the defendant of 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, 678-79 (2009)
(internal quotation marks and citations omitted). Vague and
conclusory 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 679 (citations
omitted). When factual allegations are well-pled, a court
should assume their truth and determine whether the facts
would make the plaintiff entitled to relief; legal
conclusions are not entitled to the same assumption of truth.
Id. 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).
asserts he was arrested by officers with the Bakersfield
Police Department's Violent Criminal Apprehension Team
(“VCAT”) on April 4, 2017. (Doc. 7 at 10)
According to Plaintiff, he exited a motel room to smoke a
cigarette, when he “noticed a suspicious SUV with
blacked out tinted windows slowly approaching in [his]
direction.” (Id.) Plaintiff alleges when the
doors of the vehicle opened, he saw guns and heard someone
say, “Get the fuck on the ground.” (Id.)
He asserts that he “immediately [got] on the ground in
a prone out position and yell[ed] that [he was]
alleges that once the officers reached him, an officer kneed
him in the face, while another officer got on Plaintiff's
back and handcuffed his hands behind his back. (Doc. 7 at 10)
He asserts that once “4 or 5 officers” were
around him, an officer said “Welcome to the
party” and started hitting Plaintiff “with his
retractable police baton repeatedly while [he] was already
handcuffed and held down.” (Id.) Plaintiff