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Silverman v. Lane

United States District Court, N.D. California

August 27, 2019

DORSEY LANE, et al., Defendants.



         Plaintiff, a California state pretrial detainee, filed a pro se civil rights complaint under 42 U.S.C. § 1983, against prison officials at the Humboldt County Correctional Facility (“HCCF”). The Court found the complaint, (Docket No. 1), stated cognizable claims for excessive force and failure to protect prisoner's safety, and ordered the matter served on Defendants Corporal Lane, Deputy Ayala, and Deputy Twitchell. (Docket No. 13 at 2.) Defendants Davin Twitchell and Brenda Ayala filed a motion to dismiss the claims against them for failure to plead sufficient facts to establish liability.[1] (Docket No. 33, hereinafter “Mot.”) Plaintiff filed an opposition, (Docket No. 26), and Defendants filed a reply, (Docket No. 28).[2] There are also numerous motions that are addressed below.

         For the reasons discussed below, Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART.

         I. DISCUSSION

         A. Plaintiff's Claims

         At the time of the underlying incidents, Plaintiff was a pretrial detainee housed at HCCF.[3] Plaintiff claims that on June 24, 2018, his “forearm/hand was grabbed with force [and] pushed and tugged by surprise” by Defendant Deputy Twitchell through a tray slot while he was trying to acquire water. (Compl. at 3; Docket No. 17.[4]) Plaintiff claims that while this was happening, “Defendant Ayala had a tazer harnessed in hand.” (Id.) Plaintiff claims that on July 1, 2018, his forearm/hand was atop the tray slot when Defendant Corporal Lane tazed him while Defendant Deputy Ayala was standing beside Defendant Lane. (Id. at 3, 4.) Plaintiff claims that Deputy Ayala owed him a duty of protection from excessive force but merely “smiled afterwards and to others.” (Id. at 3.) Plaintiff claims that “[b]oth relished in this tazing with malicious sadistic evil illegal spirits.” (Id.) Plaintiff claims that his hand is “numb in 2 fingers all the way down to the wrists, and tightened internally somehow, ” and seeks damages for “pain, shock, discomfort, trauma, worry, anatomical dysfunction in hand damage.” (Id.) Liberally construed, the Court found these allegations were sufficient to state cognizable claims for excessive force and failure to protect prisoner's safety. (Docket No. 13 at 2.)

         Plaintiff also claims that he was “subjected to water deprivation.” (Compl. at 3.) According to a copy of the inmate grievance Plaintiff filed in connection with this incident, it appears that the water was turned off in his cell on June 24, 2018, and when he requested water to drink and to wash his hands, Defendant Ayala only gave him two half-filled cups of water. (Id. at 5.) The Court will discuss whether this claim is cognizable below.

         B. Motion to Dismiss

         1. Standard of Review

         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) and a complaint that fails to do so is subject to dismissal pursuant to Rule 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id.

         In the Ninth Circuit, courts “construe pro se filings liberally when evaluating them under Iqbal. However, a court will not “supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         In reviewing a Rule 12(b)(6) motion, a district court must accept as true all facts alleged in the complaint and draw all reasonable inferences in favor of the Plaintiff. See al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). If the Court dismisses a complaint, it must decide whether to grant leave to amend. The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).

         2. Excessive Force

         The Due Process Clause of the Fourteenth Amendment protects a post-arraignment pretrial detainee from the use of excessive force that amounts to punishment. Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (citing Bell v. Wolfish, 441 U.S. 520, 535-39 (1979)); cf. Pierce v. Multnomah County, Oregon, 76 F.3d 1032, 1043 (9th Cir. 1996) (Fourth Amendment reasonableness standard applies to allegations of use of excessive force against pre-arraignment detainee). To prove an excessive force claim under § 1983, a pretrial detainee must show only that the “force purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015). “A court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Id. “A court (judge or jury) cannot apply this standard mechanically.” Id. “[O]bjective reasonableness turns on the ‘facts and circumstances of each particular case.'” Id. (quoting Graham v. Connor, 490 U.S. at 396).

         A non-exhaustive list of considerations that may bear on the reasonableness of the force used include “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” Kingsley, 135 S.Ct. at 2473.

         Because the Kingsley standard applicable to excessive force claims by pretrial detainees is purely objective, it does not matter whether the defendant understood that the force used was excessive or intended it to be excessive. Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1069 (9th Cir. 2016) (en banc). A pretrial detainee can prevail by providing “‘objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.'” Id. (quoting Kingsley, 135 S.Ct. at 2473-74)) (emphasis in original).

         Defendants assert that on June 24, 2018, the only force that was used was the grabbing, pushing, and tugging of Plaintiff's forearm/hand by Defendant Twitchell. (Mot. at 4.) Defendants assert that Plaintiff does not allege any facts demonstrating that Defendant's Twitchell's conduct was “in fact unreasonable given the circumstances.” (Id.) They also argue that there are no allegations that Defendant Ayala engaged in any conduct constituting a constitutional violation. (Id. at 5.) The only allegation against Defendant Ayala is that she “had a tazer harnessed in hand, ” which Defendants assert does not rise to a claim of excessive force. (Id.) Defendants also assert that Plaintiff does not allege that he suffered any injury as a result of their alleged conduct. (Id.)

         In opposition, Plaintiff asserts that he filed an amended complaint, and requests that the Court grant that his “initial complaint to be replaced by the amended complaint and that the initial complaint's grievance evidence exhibits be bound over into the amended complaint's evidence.” (Docket No. 26.) Accordingly, the Court construes Plaintiff's request as an admission that the allegations in the original complaint are insufficient. In reply, Defendants assert that Plaintiff has not pled any facts to show that any force used by Defendant Twitchell was objectively unreasonable under the circumstances. (Reply at 3.)

         Based on the foregoing, it is undisputed that the original complaint fails to allege sufficient facts to state an excessive force claim against Defendant Twitchell based on the grabbing, pushing, and tugging of Plaintiff's forearm/hand through the tray slot. As Defendants point out, there is no allegation that the force used by Defendant Twitchell was objectively unreasonable under the circumstances. See Kingsley, 135 S.Ct. at 2473. Other than the allegation that the force was “by surprise, ” Plaintiff makes no allegation that Defendant Twitchell's actions were unnecessary, that Plaintiff was not resisting, and that he suffered any injuries due to the force. Id. Furthermore, the Court has reviewed the proposed amended complaint and finds that it fails to correct this deficiency because the allegations contained therein are virtually identical to those in the original complaint. (Compare Compl. at 3 with Am. Compl. at 1, Docket No. 21.)

         Plaintiff also fails to state a claim against Defendant Ayala based on the June 24, 2018 incident where she merely threatened to use force as indicated by the allegation that she “harnessed a tazer in her hand” and no more. (Compl. at 3.) It simply cannot be said that Defendant Ayala subjected Plaintiff to excessive force where no force was actually applied. Plaintiff has also failed to remedy this deficiency in the proposed amended complaint because the factual allegations against Defendant Ayala are identical to those in the original complaint. (Am. Compl. at 1.)

         Based on the foregoing, Defendants' motion to dismiss the excessive force claim against Defendants Twitchell and Ayala based on their actions on the June 24, 2018 incident is GRANTED for failure to state a claim.[5] In opposition, Plaintiff rests on the allegations made in his amended complaint, which he requests replace the initial complaint. (Opp. at 1.) However, as discussed above, the amended complaint fails to remedy the deficiencies asserted by Defendants, and Plaintiff fails to set forth any new allegations in his opposition that would remedy the deficiencies. Accordingly, the dismissal is without leave to amend as another amendment would be futile.

         3. Failure to Protect

         In the context of claims for failure to protect, the standard under the Eighth Amendment to prove deliberate indifference is different than the standard to prove deliberate indifference under the Fourteenth Amendment. Whereas a convicted prisoner must prove an individual defendant's subjective awareness of a risk of harm in order to prevail on a failure-to-protect claim under the Eighth Amendment, a pretrial detainee need not do the same in order to prevail on a failure-to-protect claim under the Fourteenth Amendment. Castro, 833 F.3d at 1068-70 (holding that objective standard of Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015), applicable to excessive force claims brought by pretrial detainees, also applies to failure-to-protect claims brought by pretrial detainees). Specifically, a pretrial detainee need not “prove an individual defendant's subjective intent to punish in the context of a . . . failure-to protect claim.” Id. at 1070. A pretrial detainee who asserts a due process claim for failure to protect instead must prove “more than negligence but less than subjective intent - something akin to reckless disregard.” Id. at 1071.

         With respect to the July 1, 2018 incident, Plaintiff alleges that Defendant Lane tazed him, and that Defendant Ayala stood by. (Compl. at 3.) Defendants assert that this allegation is insufficient to demonstrate that Defendant Ayala's conduct constituted a constitutional violation. (Mot. at 5.) Defendants assert that the complaint is devoid of facts indicating that Defendant Ayala participated in the tazing, and that she cannot be held liable for the conduct of another prison official, particularly her superior. (Id.)

         In opposition, Plaintiff cites to caselaw from another circuit that states “[a]n officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer's use of excessive force can be held liable for his nonfeasance.” (Opp. at 2, citing Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996).) The law of this circuit is the same: an official can be liable for failing to intervene if he or she is present when another official uses excessive force against a prisoner. Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995); see also Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir. 2003) (evidence of sergeant's presence during the use of excessive force and sergeant's failure to bring his subordinates under control could support liability under ยง 1983). Accordingly, if Defendant Lane's actions amount to excessive force, then Defendant Ayala can also be held liable for failing to intervene because she was present during the incident. Although Defendants argue in reply that Plaintiff has to plead facts showing that Defendant Ayala had an opportunity ...

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