United States District Court, E.D. California
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
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. §
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. §
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.
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).
Allegations in the Complaint
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.
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
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).”).
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.
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 § 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 ...