Perez v. Bell et al

Filing 10

ORDER (Service Packet), Defendant City of Mesa Police Department is dismissed without prejudice and Defendants Bell and Park must answer Count I (Doc. 9 ). The Clerk of Court must send Plaintiff a service packet including the First Amended Complain t (Doc. 9), this Order, and both summons and request for waiver forms for Defendants Bell and Park. Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. This matter is referred to Magistrate Judge Mark E. Aspey. Signed by Judge Robert C Broomfield on 9/28/11. (See attached PDF for complete information.)(KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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SERGIO AMARO PEREZ,
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Plaintiff,
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vs.
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DETECTIVE BELL, et al.,
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Defendants.
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No. CV 11-1068-PHX-RCB (MEA)
ORDER

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Plaintiff Sergio Amaro Perez, who is confined in the Arizona State Prison Complex,

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Central Unit, in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C.

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§ 1983, which the Court dismissed for failure to state a claim with leave to amend. (Doc. 1,

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7.) Plaintiff has filed a First Amended Complaint. (Doc. 9.) The Court will order

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Defendants Bell and Park to answer Count I of the First Amended Complaint and will

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dismiss the remaining Defendant without prejudice.

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I.

Statutory Screening of Prisoner Complaints

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The Court is required to screen complaints brought by prisoners seeking relief against

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a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

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claims that are legally frivolous or malicious, that fail to state a claim upon which relief may

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be granted, or that seek monetary relief from a defendant who is immune from such relief.

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28 U.S.C. § 1915A(b)(1), (2).

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TERMPSREF

A pleading 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) (emphasis added). While Rule 8 does not

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demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Id.

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

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allegations may be consistent with a constitutional claim, a court must assess whether there

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are other “more likely explanations” for a defendant’s conduct. Id. at 1951.

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But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

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must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th

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Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards

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than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,

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94 (2007) (per curiam)).

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II.

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First Amended Complaint
Plaintiff alleges one count for the excessive use of force.1 Plaintiff sues the Mesa

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Police Department and its Detectives Bell and Park.

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Plaintiff seeks injunctive and

compensatory relief.

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Plaintiff alleges the following facts: On February 24, 2009, Defendants Bell and Park

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ordered Plaintiff to “stop and get on the ground.” (Doc. 9 at 3.) As Plaintiff was doing so,

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On January 11, 2011, Plaintiff was convicted by a jury of three counts of
kidnapping, five counts of theft by extortion, three counts of aggravated assault, and one
count of theft of the means of transportation and sentenced to several decades in prison in the
Superior Court in Maricopa County, case# CR2009-113981. See http://www.courtminutes.
maricopa.gov/docs/Criminal/012011/m4547247.pdf (last visited July 5, 2011).
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Bell and Park threw him to the ground very hard and Bell slammed his knee into Plaintiff’s

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lower back. After being handcuffed and picked up to be led out of the house, Plaintiff was

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unable to walk due to pain. Park again threw Plaintiff to the ground. At that point,

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Plaintiff’s legs and feet went numb. Plaintiff was dragged out and transported to jail without

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being taken to a hospital despite Bell and Park’s knowledge that Plaintiff was in pain and the

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“uselessness of [his] legs & feet.” (Id.) At some point, Plaintiff was taken to Maricopa

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County Hospital, which confirmed that he was injured, allegedly due to being kneed in the

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back twice by Detectives Bell and Park. Plaintiff alleges that as a consequence of being

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twice thrown on the ground by Bell and Park and kneed in the back, he has severe nerve

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damage, lower lumbar separation, and back pain. Plaintiff contends that he at no time

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struggled or resisted Bell and Park and that they used objectively unreasonable force against

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him.

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III.

Failure to State a Claim

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To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the

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conduct about which he complains was committed by a person acting under the color of state

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law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v.

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Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, a plaintiff must allege that he

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suffered a specific injury as a result of the conduct of a particular defendant and he must

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allege an affirmative link between the injury and the conduct of that defendant. Rizzo v.

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Goode, 423 U.S. 362, 371-72, 377 (1976).

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department is not a “person” within the meaning of § 1983. See e.g., Petaway v. City of New

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Haven Police Dep’t, 541 F. Supp.2d 504 (D. Conn. 2008); Pahle v. Colebrookdale Tp., 227

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F. Supp.2d 361 (E.D. Pa. 2002). However, a municipality is a “person” for purposes of

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§ 1983, i.e., a municipality such as a city or county, may be sued. See Leatherman v.

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Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993);

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Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). To state a claim against a

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Plaintiff names the Mesa Police Department as a Defendant. A municipal police

municipality under § 1983, a plaintiff must allege facts to support that his constitutional
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rights were violated pursuant to a policy or custom of the municipality. Cortez v. County of

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Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001) (citing Monell, 436 U.S. at 690-91);

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Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989)). Thus, a

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municipality may not be sued solely because an injury was inflicted by one of its employees

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or agents. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Therefore,

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a § 1983 claim against a municipal defendant “cannot succeed as a matter of law” unless a

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plaintiff: (1) contends that the municipal defendant maintains a policy or custom pertinent

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to the plaintiff’s alleged injury; and (2) explains how such policy or custom caused the

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plaintiff’s injury. Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006) (affirming

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dismissal of a municipal defendant pursuant to Fed. R. Civ. P. 12(b)(6)).

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The City of Mesa Police Department is not a proper Defendant and it will be

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dismissed. To the extent that Plaintiff sues the City of Mesa, he fails to allege facts to

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support that the City of Mesa maintained a policy or custom that resulted in the violation of

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Plaintiff’s federal constitutional rights or to explain how his injuries were caused by any

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municipal policy or custom. Accordingly, Plaintiff also fails to state a claim against the City

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of Mesa.

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IV.

Claim for Which an Answer Will be Required

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Plaintiff alleges that Detectives Bell and Park used excessive force against him during

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an arrest, when Plaintiff was complying with their orders, and after he was cuffed. Plaintiff

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alleges that he sustained serious injuries as a consequence. Defendants Bell and Park will

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be required to respond to the First Amended Complaint.

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V.

Warnings

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A.

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Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.

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Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay

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the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result

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in dismissal of this action.

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B.

Release

Address Changes
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Plaintiff must file and serve a notice of a change of address in accordance with Rule

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83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other

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relief with a notice of change of address. Failure to comply may result in dismissal of this

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action.

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C.

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Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy

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of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate

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stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit

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an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply

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Copies

may result in the filing being stricken without further notice to Plaintiff.

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D.

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If Plaintiff fails to timely comply with every provision of this Order, including these

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warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet,

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963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to

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comply with any order of the Court).

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IT IS ORDERED:

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(1)

Possible Dismissal

Defendant City of Mesa Police Department is dismissed without prejudice.

(Doc. 9.)

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(2)

Defendants Bell and Park must answer Count I. (Doc. 9.)

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(3)

The Clerk of Court must send Plaintiff a service packet including the First

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Amended Complaint (Doc. 9), this Order, and both summons and request for waiver forms

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for Defendants Bell and Park.

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(4)

Plaintiff must complete and return the service packet to the Clerk of Court

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within 21 days of the date of filing of this Order. The United States Marshal will not provide

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service of process if Plaintiff fails to comply with this Order.

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(5)

If Plaintiff does not either obtain a waiver of service of the summons or

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complete service of the Summons and the First Amended Complaint on a Defendant within
120 days of the filing of the Complaint or within 60 days of the filing of this Order,
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whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ.

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P. 4(m); LRCiv 16.2(b)(2)(B)(i).

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(6)

The United States Marshal must retain the Summons, a copy of the First

Amended Complaint, and a copy of this Order for future use.
(7)

The United States Marshal must notify Defendants of the commencement of

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this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal

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Rules of Civil Procedure. The notice to Defendants must include a copy of this Order. The

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Marshal must immediately file signed waivers of service of the summons. If a waiver

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of service of summons is returned as undeliverable or is not returned by a Defendant

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within 30 days from the date the request for waiver was sent by the Marshal, the

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Marshal must:

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(a) personally serve copies of the Summons, First Amended Complaint, and

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this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil

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Procedure; and

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(b) within 10 days after personal service is effected, file the return of service

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for Defendant, along with evidence of the attempt to secure a waiver of service of the

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summons and of the costs subsequently incurred in effecting service upon Defendant.

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The costs of service must be enumerated on the return of service form (USM-285) and

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must include the costs incurred by the Marshal for photocopying additional copies of

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the Summons, First Amended Complaint, or this Order and for preparing new process

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receipt and return forms (USM-285), if required. Costs of service will be taxed

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against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules

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of Civil Procedure, unless otherwise ordered by the Court.

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(8)

A Defendant who agrees to waive service of the Summons and First

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Amended Complaint must return the signed waiver forms to the United States Marshal,

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not the Plaintiff.

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(9)

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Defendant must answer the First Amended Complaint or otherwise respond by

appropriate motion within the time provided by the applicable provisions of Rule 12(a) of
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the Federal Rules of Civil Procedure.
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Any answer or response must state the specific Defendant by name on whose

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behalf it is filed. The Court may strike any answer, response, or other motion or paper that

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does not identify the specific Defendant by name on whose behalf it is filed.

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(11)

This matter is referred to Magistrate Judge Mark E. Aspey pursuant to Rules

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72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized

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under 28 U.S.C. § 636(b)(1).

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DATED this 28th day of September, 2011.

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