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Michoff v. EL Dorado County

United States District Court, E.D. California

May 31, 2018

STEVEN DAVID MICHOFF, Plaintiff,
v.
EL DORADO COUNTY, et al., Defendants.

          ORDER

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has paid the appropriate filing fee. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

         I.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). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

         A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

         In order to avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions, ” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, “[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). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “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.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

         II. Allegations in the Complaint

         In his complaint, plaintiff alleges that El Dorado County Deputy Sheriff Colburn used excessive force to arrest him at his mother's house on two occasions by deploying a K9 officer even though plaintiff was on the ground, complying with orders, and was unarmed. ECF No. 1 at 3. According to plaintiff, defendant Colburn callously used his K9 partner to inflict harm on plaintiff. Id. Based on this conduct, plaintiff alleges that defendant Colburn violated plaintiff's rights under the Fourth Amendment and committed assault and battery on plaintiff, presumably in violation of California law. Plaintiff suffered wounds to his side, arms, wrists, legs and ankles as a result. Id. Following the second incident on May 21, 2017, plaintiff was transported by ambulance to the hospital for treatment. ECF No. 1 at 4.

         Plaintiff also alleges that other unnamed officers from the Sheriff's Department were present during both incidents, but failed to intervene. ECF No. 1 at 4. El Dorado County Sheriff Agostini and defendant Does 1-10 are also alleged to have failed to properly supervise and train Deputy Colburn on the use of force. ECF No. 1 at 6. Plaintiff also sues El Dorado County based on “the blue wall of silence or blue code among deputies and employees of the El Dorado County Sheriff's Department.” ECF No. 1 at 8. By way of relief, plaintiff is seeking monetary and punitive damages.

         III. Analysis

         Plaintiff's complaint states a cognizable claim for the excessive use of force under the Fourth Amendment and 28 U.S.C. § 1915A(b) against defendant Deputy Colburn. See Graham v. Connor, 490 U.S. 386, 395 (1989). The complaint appears to allege a separate cause of action for assault and battery under California law. Since the Fourth Amendment claim against defendant Deputy Colburn is cognizable, the state law claim for assault and battery against him is also cognizable. In any civil action in which the district court has original jurisdiction, the district court also has supplemental jurisdiction over all other claims that are part of the same case or controversy except as provided in subsections (b) and (c) of 28 U.S.C. § 1367. Since the court has found a cognizable excessive force claim against defendant Deputy Colburn, the court will exercise its discretion to retain supplemental jurisdiction over the assault and battery claim under California law. See Acri v. Varian Assoc., Inc., 114 F.3d 999 (9th Cir. 1997) (en banc) (holding that once original jurisdiction is established, a district court may exercise supplemental jurisdiction over state law claims “without sua sponte addressing whether it should be declined under § 1367(c).”).

         However, the claims against the remaining defendants fail to state a claim upon which relief may be granted for the reasons outlined below. The court will grant leave to amend because it appears that plaintiff may be able to allege facts to remedy the deficiencies in the remaining claims.

         A. Municipal Liability

         Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where official policy or custom causes a constitutional tort. See Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978). However, a city or county may not be held vicariously liable for the unconstitutional acts of its employees under the theory of respondeat superior. See Board of County Comm'rs v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). To impose municipal liability under ยง 1983 for a violation of constitutional rights, a plaintiff must show: (1) that the plaintiff possessed a constitutional right of which he or she was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference ...


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