Tomlin v. Gafvert et al

Filing 19

ORDER (Service Packet), the Clerk must send Plaintiff a service packet including the Third Amended Complaint 16 , this Order, and both summons and request for waiver forms for Defendants Gafvert and Gillis; Plaintiff must complete and return the service packet to the Clerk within 21 days; this matter is referred to Magistrate Judge Eileen S Willet for all pretrial proceedings. Signed by Senior Judge Stephen M McNamee on 12/17/14. (REW)

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SKC

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Henry Tomlin,

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No. CV 13-1980-PHX-SMM (ESW)
Plaintiff,

v.

ORDER

Nathaniel E. Gafvert & Kevin Gillis,

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Defendants.

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Plaintiff John Henry Tomlin, who is confined in the Arizona State Prison

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Complex-Florence, East Unit, in Florence, Arizona, filed a pro se civil rights Complaint

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in Maricopa County Superior Court. On September 30, 2013, Defendant Nathaniel E.

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Gafvert removed the action to this Court and paid the $400.00 filing fee.

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In a January 15, 2014 Order, the Court dismissed the Complaint with leave to

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amend because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to

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file an amended complaint that cured the deficiencies identified in the Order.

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On February 12, 2014, Plaintiff filed his First Amended Complaint (Doc. 8), and
Defendant Nathaniel E. Gafvert filed an answer.

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On March 17, 2014, Plaintiff filed a Motion to Amend/Correct the First Amended

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Complaint and lodged a Second Amended Complaint. In a June 26, 2014 Order, the

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Court granted Plaintiff’s Motion to Amend, directed the Clerk of the Court to lodge the

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Second Amended Complaint, and dismissed that Complaint because Plaintiff had failed

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to state a claim. The Court gave Plaintiff 30 days to file a third amended complaint that

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cured the deficiencies identified in the Order.

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On July 29, 2014, Plaintiff filed a Third Amended Complaint (Doc. 16). The

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Court will require Defendants to answer the Third Amended Complaint.

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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

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against a governmental entity or an officer or an employee of a governmental entity. 28

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U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff

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has raised claims that are legally frivolous or malicious, that fail to state a claim upon

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which relief may be granted, or that seek monetary relief from a defendant who is

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immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2).

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A pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8

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does not demand detailed factual allegations, “it demands more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.”

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(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id.

Ashcroft v. Iqbal, 556 U.S. 662, 678

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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

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

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

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claim for relief [is] . . . a context-specific task that requires the reviewing court to draw

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on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s

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specific factual allegations may be consistent with a constitutional claim, a court must

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assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

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at 681.

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

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

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342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

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stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

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Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

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II.

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Third Amended Complaint
Plaintiff names Mesa Police Officers Nathaniel E. Gafvert and Kevin Gillis as

Defendants in his Third Amended Complaint.

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Plaintiff raises one claim for excessive use of force in violation of the Fourth

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Amendment. Plaintiff alleges that at approximately 9:20 p.m. on January 3, 2012, he was

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walking with his bicycle from a market in Mesa where he had purchased some food

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items, and he stopped a short distance from the store to throw away some consumed food

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trash. He alleges that Defendant Gafvert, who was driving an un-marked police truck,

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suddenly stopped, exited the truck, and approached Plaintiff. Defendant Gafvert inquired

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about what Plaintiff was doing, and Plaintiff told him he was just throwing away some

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trash. Defendant Gillis then arrived on the scene in another un-marked police vehicle.

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Plaintiff alleges that Defendant Gafvert suddenly and forcefully knocked Plaintiff to the

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ground and hit him on the head with something sharp. Defendants handcuffed Plaintiff

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while he was semi-conscious, and he awakened to see three undercover police officers

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searching the surrounding area with flashlights. Plaintiff alleges that he heard Defendant

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Gafvert say that he knew who Plaintiff was and “there has to be something around here.”

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Plaintiff advised the officers that they had “jumped him for nothing.” Plaintiff was

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arrested and taken to the Mesa City Jail where he learned that Defendant Gafvert had

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charged him with five offenses. Plaintiff alleges that the arrest took place on a long, dark

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street and no others were present. He alleges that he had not committed a crime to

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prompt the use of force, he posed no threat to Defendants, and he had no weapon. He

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further alleges that he did not resist arrest and was surprised by the attack. He alleges

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various injuries, including a large wound to his right shoulder; a lower back injury that

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makes it difficult to walk and that required him to seek emergency medical care; head

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injuries that became infected and that cause him headaches; and mental and emotional

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damage, including nightmares and a fear of being attacked.

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Plaintiff seeks monetary and injunctive relief.

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In its June 26, 2014 Order dismissing Plaintiff’s Second Amended Complaint, the

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Court stated that Plaintiff had failed to allege sufficient facts for the Court to assess

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whether the force used during his arrest was reasonable. Specifically, Plaintiff had not

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alleged facts showing whether he posed a threat to the officers or others, or whether he

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was resisting arrest. Plaintiff adds to his previous allegations that no one else was present

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when both Defendants stopped and approached him; Plaintiff had no weapon and had not

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committed a crime to prompt the use of force; he posed no threat and did not resist arrest;

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and he was “surprisingly attacked and injured” when Defendant Gafvert knocked him to

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the ground and hit him on the head. Plaintiff also adds specific allegations about his

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resulting injuries, including that he suffered a wound to the head that became infected

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and injuries to his lower back that make it difficult to walk. Liberally construed, Plaintiff

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states a claim of excessive use of force against Defendants Gafvert and Gillis, and

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Defendants will be required to respond to the allegations in the Third Amended

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Complaint.

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IV.

Warnings

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A.

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If Plaintiff is released while this case remains pending, and the filing fee has not

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been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court

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that he intends to pay the unpaid balance of his filing fee within 120 days of his release or

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(2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may

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result in dismissal of this action.

Release

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B.

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

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

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Address Changes

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for other relief with a notice of change of address. Failure to comply may result in

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dismissal of this action.

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C.

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

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

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

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Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv

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5.4. Failure to comply may result in the filing being stricken without further notice to

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Plaintiff.

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D.

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

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

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

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for failure to comply with any order of the Court).

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IT IS ORDERED:

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(1)

Copies

Possible Dismissal

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

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Amended Complaint (Doc. 16), this Order, and both summons and request for waiver

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forms for Defendants Gafvert and Gillis.

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(2)

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

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

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(3)

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

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complete service of the Summons and Complaint on a Defendant within 120 days of the

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filing of the Complaint or within 60 days of the filing of this Order, whichever is later,

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the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m);

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LRCiv 16.2(b)(2)(B)(i).

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(4)

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

Complaint, and a copy of this Order for future use.

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(5)

The United States Marshal must notify Defendants of the commencement

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

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

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Order.

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summons. If a waiver of service of summons is returned as undeliverable or is not

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returned by a Defendant within 30 days from the date the request for waiver was

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sent by the Marshal, the Marshal must:

The Marshal must immediately file signed waivers of service of the

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(a)

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personally serve copies of the Summons, Complaint, and this Order

upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure;

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and

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(b)

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

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

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service of the summons and of the costs subsequently incurred in effecting service

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upon Defendant. The costs of service must be enumerated on the return of service

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form (USM-285) and must include the costs incurred by the Marshal for

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photocopying additional copies of the Summons, Complaint, or this Order and for

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preparing new process receipt and return forms (USM-285), if required. Costs of

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service will be taxed against the personally served Defendant pursuant to Rule

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4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the

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Court.

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(6)

A Defendant who agrees to waive service of the Summons and

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Complaint must return the signed waiver forms to the United States Marshal, not

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the Plaintiff.

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(7)

Defendants must answer the Complaint or otherwise respond by

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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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(8)

Any answer or response must state the specific Defendant by name on

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

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

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(9)

This matter is referred to Magistrate Judge Eileen S. Willet pursuant to

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

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authorized under 28 U.S.C. § 636(b)(1).

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DATED this 17th day of December, 2014.

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