United States District Court, E.D. California
ORDER REQUIRING PLAINTIFF TO EITHER FILE FIRST
AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED
ONLY ON FAILURE TO PROVIDE MEDICAL ASSISTANCE CLAIM (DOC.
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
August 9, 2019, Plaintiff Cesar Pimentel, proceeding pro
se, filed a civil complaint against Hanford Police
Officers Alfred Rivera (“Officer Rivera”) and
Mark Carrillo (“Officer Carrillo”) (collectively
“Defendants”). (Doc. 1 (“Compl.”).)
Plaintiff also filed an application to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915, which was
granted on August 19, 2019. (Docs. 2 & 3.) As discussed
below, Plaintiff has stated a cognizable claim for failure to
provide medical assistance in Claim I on which he may proceed
and may be able to correct the deficiencies in his pleading
for his other claim. Thus, Plaintiff may either file a first
amended complaint correcting the deficiencies or advise the
Court that he is willing to proceed only on his failure to
provide medical assistance claim.
Screening Requirement and Standard
cases where the plaintiff is proceeding in forma
pauperis, the Court is required to screen each case, and
shall dismiss the case at any time if the Court determines
that the allegation of poverty is untrue, or the action or
appeal is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief against
a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2). If the Court determines that the complaint fails
to state a claim, leave to amend may be granted to the extent
that the deficiencies of the complaint can be cured by
amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th
Cir. 2000) (en banc).
Court’s screening of the Complaint under 28 U.S.C.
§ 1915(e)(2) is governed by the following standards. A
complaint may be dismissed as a matter of law for failure to
state a claim for two reasons: (1) lack of a cognizable legal
theory; or (2) insufficient facts under a cognizable legal
theory. See Balistreri v. Pacifica Police
Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
Plaintiff must allege a minimum factual and legal basis for
each claim that is sufficient to give each defendant fair
notice of what plaintiff’s claims are and the grounds
upon which they rest. See, e.g., Brazil v. U.S.
Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir.
1995); McKeever v. Block, 932 F.2d 795, 798 (9th
Summary of the Complaint
alleges that on January 8, 2019, he was pulled over by
Defendants. (Compl. at 3, 5.) Due to Plaintiff being under
community supervision, Defendants conducted a search of
Plaintiff’s person and vehicle. (Id.)
According to Plaintiff, prior to being searched, he
“swallowed a large quantity of drugs.”
(Id. at 3.) During the search, Defendants found on
Plaintiff’s person “a glass pipe, a bindle of
meth, and pills, ” as well as $2, 909.00. (Id.
at 3, 5) Plaintiff alleges Defendants located “two
cellphones and ‘various amounts of cash’”
when searching Plaintiff’s vehicle.
alleges that upon being detained and placed in the back of
Defendants’ squad car, he began to feel the effects of
the drugs and advised Defendants he had swallowed them.
(Compl. at 3.) He “continuously yelled, begged, and
pleaded to be taken to the hospital, ” but was ignored
by Defendants. (Id.) According to Plaintiff, he told
Defendants, “I can’t see, I can’t
breath[e]. I swallow[ed] an ounce of dope.”
(Id.) Plaintiff alleges that instead of calling for
emergency medical services, Defendants “ignored my
pleas for help for an ambulance and stood by while they
waited for a tow truck.” (Id. at 3–4.)
Defendants then transported Plaintiff to the jail and
“forcibly placed [him] in a restraint chair with a spit
mask.” (Id. at 4.)
the jail, the nurse “refused to clear” Plaintiff
and “advised to call [emergency medical
services].” (Compl. at 4.) According to Plaintiff, he
was then “rushed” to the emergency room, where he
was admitted with a body temperature of approximately 108
degrees and was hospitalized for a total of 10 days.
(Id. at 3–4.) Plaintiff alleges that more than
two hours elapsed from the time he asked Defendants for
medical attention and the time of his admission to the
hospital. (Id. at 4.) Plaintiff contends in Claim I
that Defendants’ failure to seek or supply immediate
medical attention violated his rights under the Fourteenth
Amendment to the United States Constitution. (Id. at
Claim II, Plaintiff alleges that Officer Rivera collected
only the two cell phones as evidence from the search of
Plaintiff’s vehicle, leaving Plaintiff’s wallet,
ATM card, credit cards, and cash in the car, which was towed.
(Compl. at 5.) Plaintiff’s alleges that these items
were “lost and unaccounted for, ” and Officer
Rivera’s failure to collect these items as evidence
constitutes a violation of Plaintiff’s due process
rights under the Fourteenth Amendment. (Id.)
Plaintiff seeks compensatory and punitive damages. (Compl. at
discussed in detail below, Plaintiff’s allegations in
Claim I state a cognizable claim for failure to provide
medical assistance against Defendants on which he should be
allowed to proceed. However, Plaintiff does not state a
cognizable claim in Claim II. Thus, Plaintiff may choose to
proceed on the failure to provide medical assistance claim
identified in Claim I, or he may attempt to cure the defects
in his pleading by filing a first amended complaint.
Federal Rule of ...