Gonzales v. Mesa, City of et al

Filing 9

ORDER: Plaintiff's April 7, 2014 Motion for Leave to Amend Complaint 6 is granted; the Clerk of Court must file the First Amended Complaint. The First Amended Complaint is dismissed for failure to state a claim. Plaintiff has 30 days from th e date this Order is filed to file a second amended complaint in compliance with this Order. If Plaintiff fails to file a second amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of thi s action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g). The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Signed by Judge Steven P Logan on 7/2/2014. (Attachments: # 1 Cicil Rights Complaint by Prisoner)(ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jesse Gonzales, Jr.,

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No. CV 14-00485-PHX-SPL (LOA)
Plaintiff,

vs.

ORDER

City of Mesa, et al.,

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Defendants.

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On March 18, 2013, Plaintiff Jesse Gonzales, Jr., who is confined in the Arizona

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State Prison Complex-Yuma, filed a pro se civil rights Complaint in the Maricopa

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County Superior Court. On March 11, 2014, Defendants Ferrell, City of Mesa Police

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Department, Higgins, and Sherwood removed the action to this Court.

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On April 7, 2014, Plaintiff filed a Motion for Leave to Amend Complaint (Doc. 6)

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and lodged a First Amended Complaint. The Court will grant the Motion for Leave to

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Amend, direct the Clerk of Court to file the First Amended Complaint, and dismiss the

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First Amended Complaint with leave to amend.

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I.

Removal to Federal Court

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court over which the federal district courts would have original jurisdiction. “Only . . .

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actions that originally could have been filed in federal court may be removed to federal

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court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Absent

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Title 28 U.S.C. § 1441 authorizes removal of any civil action brought in the state

diversity of citizenship (not present here), federal question jurisdiction is required.

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Federal district courts have original jurisdiction over all civil actions arising under the

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Constitution of the United States pursuant to 28 U.S.C. § 1331, including those actions

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where the plaintiff has requested a remedy under state law for an alleged violation of a

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federal substantive right. Smith v. Kansas City Title & Trust, 255 U.S. 180, 199 (1921).

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Plaintiff claims violations of his constitutional rights and has not objected to

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removal. The Court finds removal was proper.

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II.

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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If the Court determines that a pleading could be cured by the allegation of other

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facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal

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of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).

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Plaintiff’s First Amended Complaint will be dismissed for failure to state a claim, but

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because it may possibly be amended to state a claim, the Court will dismiss it with leave

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to amend.

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III.

First Amended Complaint

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In his four-count First Amended Complaint, Plaintiff names the following

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Defendants: Mesa Police Officers Ferrell, Savage, Higgins, and Sherwood; Supervisors J.

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Calkins, and J. Woodards; and Detective S. Van Coillie.

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In Count One, Plaintiff claims his Fourth Amendment rights were violated when

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Defendants illegally searched a vehicle in which Plaintiff was a passenger during a traffic

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stop.

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In Count Two, Plaintiff claims his Eighth Amendment rights were violated when
Defendant Ferrell used excessive force on him during arrest.

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In Count Three, Plaintiff alleges his Fourteenth Amendment rights were violated
when he was wrongfully arrested for possessing a gun.

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In Count Four, Plaintiff claims his Fourteenth Amendment rights were violated
when he was subjected to malicious prosecution and false imprisonment.

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Plaintiff seeks money damages.
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IV.

Failure to State a Claim

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A.

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A prisoner’s claim for damages cannot be brought under 42 U.S.C. § 1983 if “a

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judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction

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or sentence,” unless the prisoner demonstrates that the conviction or sentence has

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previously been reversed, expunged, or otherwise invalidated. Heck v. Humphrey, 512

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U.S. 477, 486-87 (1994). Plaintiff’s claims in Count One, Three, and Four directly

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challenge the validity of his conviction and Plaintiff has not alleged that his conviction

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has been reversed, expunged, or otherwise invalidated. Plaintiff’s claims are therefore

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Count One, Three, and Four

barred by Heck and will be dismissed.

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B.

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The use of excessive force by police officers in the course of an arrest can violate

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the arrestee’s Fourth Amendment right to be free from unreasonable seizures. See White

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by White v. Pierce County, 797 F.2d 812, 816 (9th Cir. 1986). The Fourth Amendment

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does not prohibit the use of reasonable force. Tatum v. City & County of San Francisco,

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441 F.3d 1090, 1095 (9th Cir. 2006). Whether the force was excessive depends on

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“whether the officers’ actions [were] ‘objectively reasonable’ in light of the facts and

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circumstances confronting them, without regard to their underlying intent or motivation.”

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Graham v. Connor, 490 U.S. 386, 397 (1989); Tatum, 441 F.3d at 1095; Lolli v. County

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of Orange, 351 F.3d 410, 415 (9th Cir. 2003). The Court must balance the nature and

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quality of the intrusion against the countervailing governmental interests at stake.

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Graham, 490 U.S. at 396; Lolli, 351 F.3d at 415. Moreover,

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Count Two

[t]he “reasonableness” of a particular use of force must be
judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight. . . . .
“Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers,” violates the
Fourth Amendment.
Graham, 490 U.S. at 396 (citations omitted). “Whether a particular use of force was
‘objectively reasonable’ depends on several factors, including the severity of the crime

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that prompted the use of force, the threat posed by a suspect to the police or to others, and

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whether the suspect was resisting arrest.” Tatum, 441 F.3d at 1095.

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Plaintiff alleges that at the time of his arrest he had been recently released from the

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hospital for treatment of gunshot wounds. Plaintiff states that his ribs were shattered, his

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spleen and lung were “stitched up inside and [he] had staples starting at his waist all the

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way up to inches away from [his] sternum.” Plaintiff states that when Defendant Ferrell

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told him to step out of the car, he showed Defendant Ferrell the staples and said that he

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could not get out. Defendant Ferrell allegedly replied that he “didn’t care” and told

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Plaintiff to get out of the vehicle and keep his hands up. Plaintiff complied. Defendant

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Ferrell then conducted a pat-down search of Plaintiff. Plaintiff states that Defendant

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Ferrell “began slap patting me on my stomach and chest, during that I asked him to do it

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a little lighter because it hurted with the force [he] was admitting.” Plaintiff states that he

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was then handcuffed too tightly, behind his back, and was subjected to two further pat-

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down searches. Plaintiff also states in other claims that Defendants found two guns in the

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possession of Plaintiff’s friend who was driving the car.

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Plaintiff’s facts are simply insufficient to demonstrate that Defendant Ferrell’s use

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of force was not objectively reasonable. Plaintiff has therefore failed to state a claim in

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Count Two.

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V.

Leave to Amend

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For the foregoing reasons, Plaintiff’s First Amended Complaint will be dismissed

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for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff

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may submit a second amended complaint to cure the deficiencies outlined above. The

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Clerk of Court will mail Plaintiff a court-approved form to use for filing a second

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amended complaint. If Plaintiff fails to use the court-approved form, the Court may

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strike the second amended complaint and dismiss this action without further notice to

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Plaintiff.

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Plaintiff must clearly designate on the face of the document that it is the “Second
Amended Complaint.” The second amended complaint must be retyped or rewritten in

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its entirety on the court-approved form and may not incorporate any part of the original

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Complaint or First Amended Complaint by reference. Plaintiff may include only one

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claim per count.

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A second amended complaint supersedes the original Complaint and First

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Amended Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal

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Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After

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amendment, the Court will treat the original Complaint and First Amended Complaint as

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nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the

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original complaint or first amended complaint and that was voluntarily dismissed or was

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dismissed without prejudice is waived if it is not alleged in a second amended complaint.

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Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).

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VI.

Warnings

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A.

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

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dismissal of this action.

Address Changes

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B.

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

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

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notice to Plaintiff.

Copies

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Because the First Amended Complaint has been dismissed for failure to state a

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claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies

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identified in this Order, the dismissal may count as a “strike” under the “3-strikes”

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provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring

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a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the

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C.

prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility,

Possible “Strike”

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brought an action or appeal in a court of the United States that was dismissed on the

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grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be

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granted, unless the prisoner is under imminent danger of serious physical injury.” 28

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U.S.C. § 1915(g).

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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, 963

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F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any

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order of the Court).

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IT IS ORDERED:

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(1)

Possible Dismissal

Plaintiff’s April 7, 2014 Motion for Leave to Amend Complaint (Doc. 6) is

granted; the Clerk of Court must file the First Amended Complaint.
(2)

The First Amended Complaint is dismissed for failure to state a claim.

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Plaintiff has 30 days from the date this Order is filed to file a second amended complaint

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in compliance with this Order.

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(3)

If Plaintiff fails to file a second amended complaint within 30 days, the

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Clerk of Court must, without further notice, enter a judgment of dismissal of this action

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with prejudice that states that the dismissal may count as a “strike” under 28 U.S.C.

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§ 1915(g).

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(4)

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The Clerk of Court must mail Plaintiff a court-approved form for filing a

civil rights complaint by a prisoner.
Dated this 2nd day of July, 2014.

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Honorable Steven P. Logan
United States District Judge

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