Michaell Joseph Hullings v. Chad Johnson et al

Filing 11

MEMORANDUM AND ORDER by Magistrate Judge John E. McDermott 5 . the Complaint is DISMISSED WITH LEAVE TOAMEND. If Plaintiff desires to pursue this action, he is ORDERED to file a First Amended Complaint within thirty (30) days of the date of this Order. [See Order for details.] Set deadlines( Amended Pleadings due by 7/30/2014.) (san)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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MICHAEL JOSEPH HULLINGS,
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Plaintiff,
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v.
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DEPUTY CHAD JOHNSON, et al.,
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Defendants.
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Case No. EDCV 13-2320-R (JEM)
MEMORANDUM AND ORDER
DISMISSING COMPLAINT
WITH LEAVE TO AMEND

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On January 9, 2014, Michael Joseph Hulling (“plaintiff”), proceeding pro se
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and in forma pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983
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(“Complaint”).1
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SCREENING STANDARDS
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In accordance with the provisions governing in forma pauperis proceedings, the
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Court must screen the Complaint before ordering service to determine whether the action:
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(1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3)
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seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §
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1915(e)(2). This screening is governed by the following standards:
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Plaintiff initially filed his Complaint in the United States District Court for the Southern District
of California, which transferred the action to this judicial district.

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A complaint may be dismissed as a matter of law for failure to state a claim for two

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reasons: (1) the plaintiff fails to state a cognizable legal theory; or (2) the plaintiff has

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alleged insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't,

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901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim on

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which relief may be granted, allegations of material fact are taken as true and construed in

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the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir.

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1988). However, “the liberal pleading standard . . . applies only to a plaintiff’s factual

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allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). “‘[A] liberal interpretation of

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a civil rights complaint may not supply essential elements of the claim that were not initially

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pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting

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Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

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Although a complaint "does not need detailed factual allegations" to survive

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dismissal, a plaintiff must provide “more than mere labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007) (rejecting the traditional “no set of facts” standard set forth in

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Conley v. Gibson, 355 U.S. 41 (1957)). The complaint must contain factual allegations

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sufficient to rise above the “speculative level,” Twombly, 550 U.S. at 555, or the merely

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possible or conceivable. Id. at 557, 570.

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Simply put, the complaint must contain "enough facts to state a claim to relief that is

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plausible on its face." Twombly, 550 U.S. at 570. A claim has facial plausibility when the

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complaint presents enough facts “to draw the reasonable inference that the defendant is

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liable.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard is not a probability

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requirement, but “it asks for more than a sheer possibility that a defendant has acted

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unlawfully.” Id. A complaint that pleads facts that are merely consistent with liability stops

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short of the line between possibility and plausibility. Id.

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In a pro se civil rights case, the complaint must be construed liberally to afford

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plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dept, 839 F.2d 621,

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623 (9th Cir. 1988). Unless it is clear that the deficiencies in a complaint cannot be cured,
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pro se litigants are generally entitled to a notice of a complaint’s deficiencies and an

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opportunity to amend prior to the dismissal of an action. Lucas v. Dept. of Corrections, 66

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F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Karim-Panahi, 839 F.2d at 623. Only if

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it is absolutely clear that the deficiencies cannot be cured by amendment should the

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complaint be dismissed without leave to amend. Id. at 623; see also Cato v. United States,

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70 F.3d 1103, 1106 (9th Cir. 1995); McQuillon v. Schwarzenegger, 369 F.3d 1091, 1099

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(9th Cir. 2004) (where amendment would be futile, complaint may be dismissed without

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leave to amend).

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After careful review and consideration of the Complaint under the relevant standards

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and for the reasons discussed below, the Court finds that the Complaint must be

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DISMISSED WITH LEAVE TO AMEND.

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PLAINTIFF’S ALLEGATIONS

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Plaintiff is suing the following employees of the San Bernardino County Sheriff’s

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Department (“Sheriff’s Department”): deputy sheriffs Chad Johnson, Sousa, Mark Pederson,

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and William Stringer; sergeant Keith Proctor; and John and Jane Does 1 through 10.

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(Complaint at 2.) Plaintiff sues the named defendants in their individual and official

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capacities. (Id.)

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Plaintiff alleges that on March 2, 2012, sheriff’s deputies arrived at his mobile home

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in Rancho Cucamonga. Plaintiff fled through the back door and tried to inconspicuously

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discard his methamphetamine pipe, but Sousa saw him and instructed him to get down on

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the ground. Plaintiff lay down on his stomach with his chin on the pavement, crossing his

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hands behind his back and crossing his ankles. Sousa then kicked plaintiff in the head,

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chipping and breaking his teeth. Sousa continued to kick plaintiff in the head and other

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deputies joined in, even though plaintiff repeatedly called out that he was not resisting in any

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way. (Complaint at 3-4.)

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Plaintiff’s teeth were chipped and broken from contact with the concrete pavement,
his mouth was full of blood, and he was nauseated from swallowing blood and bits of teeth.

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(Complaint at 3-4.) After he was handcuffed, Deputy Johnson stepped on his head and

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ground his boot into plaintiff’s ear, injuring it. (Id. at 4.)
The deputies took plaintiff to San Antonio Hospital in Upland to be treated for his

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injuries. (Complaint at 4.) Plaintiff was “a bloody mess.” His wounds were cleaned, his ear

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was sutured, and bandages were applied to his many cuts and abrasions. He was given

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Vicoden for the pain from his broken teeth. Before plaintiff left the hospital, Sergeant

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Proctor interviewed him and photographed his injuries. (Id.) On the way from the hospital

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to the jail, Johnson stopped at the sheriff’s station and Proctor again interviewed plaintiff.

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Plaintiff was then booked into jail on a charge of possession of a controlled substance. (Id.

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at 5.)
By the time plaintiff was booked into jail and housed, it was late Friday night. On

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Saturday he was in great pain and unable to eat due to the state of his teeth. He pushed

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the medical emergency button in his cell and explained his situation to the responding

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sheriff’s deputy, who took him to see the duty nurse in the medical unit. Since it was

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Saturday, there were no doctors or dentists present, and the nurse merely gave him

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Tylenol. (Complaint at 5.)

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On Monday morning, plaintiff again pushed the medical emergency button and was

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sent directly to a dentist. The dentist took X-rays and performed remedial work on plaintiff’s

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shattered teeth, but he told plaintiff that the work had to be done in stages because the

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damage to his teeth was so far-reaching. (Complaint at 5.) Ten days later stitches were

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removed from plaintiff’s ear and the back of his head. (Id. at 6.)

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Plaintiff alleges that he has suffered permanent and irreparable damage to his teeth

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and suffers from panic attacks since the assault. (Complaint at 6.) He asserts the following

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claims: right to medical care, due process, and freedom from cruel and unusual punishment.

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(Id. at 3-6.) He requests compensatory and punitive damages, as well as injunctive relief

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ordering, among other things, dismissal of the defendants from the Sheriff’s Department and

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their criminal prosecution by the San Bernardino District Attorney’s office.2 (Id. at 8.)
DISCUSSION

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I.

PLAINTIFF’S ALLEGATIONS ARE SUFFICIENT TO ASSERT EXCESSIVE FORCE

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CLAIMS AGAINST SOUSA AND JOHNSON, BUT NOT AGAINST PEDERSON,

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STRINGER, AND PROCTOR.

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Plaintiff asserts an excessive force claim under the Eighth Amendment. The law is

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clear that all claims for excessive force in an arrest, investigatory stop, or other seizure of a

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free person must be brought under the Fourth Amendment and analyzed under its objective

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"reasonableness" standard. Graham v. Connor, 490 U.S. 386, 388 (1989). The Due

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Process Clause of the Fourteenth Amendment governs excessive force claims brought by

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pre-trial detainees. Id. at 395 n.10; Bell v. Wolfish, 441 U.S. 520, 535-39 (1979). After

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conviction, the Eighth Amendment protects prisoners from the use of excessive force.

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Graham, 490 U.S. at 395 n.10.
Plaintiff alleges that the excessive force took place during his arrest. Thus, his

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excessive force claims arise under the Fourth Amendment rather than the Eighth

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Amendment. Plaintiff’s factual allegations are sufficient to allege that he was subjected to

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unreasonable force in violation of the Fourth Amendment. However, in order to hold the

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named defendants liable, he must allege personal participation in the excessive force by

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each defendant. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“Liability

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under § 1983 must be based on the personal involvement of the defendant.”)

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Plaintiff’s allegations that deputy Sousa repeatedly kicked him in the head as he lay

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unresisting on the ground, shattering his teeth, state a Fourth Amendment excessive force

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claim against Sousa. (Complaint at 3-4.) Plaintiff’s allegations that deputy Johnson stepped

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on plaintiff’s head and ground his boot into plaintiff’s ear, which subsequently had to be

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sutured, state a Fourth Amendment excessive force claim against Johnson. (Id.)

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The Court will not address the injunctive relief sought by plaintiff at this time.

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However, the Complaint does not contain any factual allegations about deputies

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Pederson and Stringer. Plaintiff does not allege that they kicked him or used force against

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him; in fact, he does not even allege that they were present. If plaintiff is alleging that

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Pederson and Stringer were among the deputies who joined Sousa in kicking him, he

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should say so. If not, or if plaintiff does not know whether Pederson and Stringer joined in

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the assault, he may still be able to state a claim against them if they were present and failed

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to take reasonable steps to stop Sousa and other deputies from kicking him. See Fundiller

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v. Cooper City, 777 F.2d 1436, 1441-42 (11th Cir.1985) (“It is not necessary that a police

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officer actually participate in the use of excessive force in order to be held liable under

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section 1983. Rather, an officer who is present at the scene and who fails to take

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reasonable steps to protect the victim of another officer's use of excessive force, can be

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held liable for his nonfeasance.”); see also Kraft v. Laney, 2005 WL 2042310, *5 *E.D. Cal.,

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Aug. 24, 2005) (CIV S-04-0129GGH) (“Inactivity in the face of circumstances in which the

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reasonable police officer would know that he needed to take steps to avoid the use, or

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continued use, of excessive force on a detainee will lead to liability.”) (citing Lolli v. County

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of Orange, 351 F.3d 410, 418 (9th Cir. 2003)). However, as it stands now, the Complaint

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contains no factual basis for a claim against Pederson or Stringer.

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Plaintiff’s allegations are also insufficient to state a claim against Sergeant Proctor. If

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Proctor was on the scene and did not intervene to stop the assault, plaintiff has stated an

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excessive force claim against him. See Lolli, 351 F.3d at 418 (sergeant who observed

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deputies’ assault on detainee and failed to intervene was not entitled to summary judgment).

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However, plaintiff does not clearly allege that Proctor was on the scene when the assault

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occurred. It appears that Proctor only became involved afterwards, when he interviewed

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plaintiff at the hospital and again at the police station. (Complaint at 4, 5.) Plaintiff cannot

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hold Proctor liable for the deputies’ excessive force based on Proctor’s after-the-fact

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investigation. This is true even though plaintiff alleges that Proctor tried to cover up the

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incident. See Hutchinson v. Grant, 796 F.2d 288, 291 (9th Cir.1986) (rejecting theory that

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town was liable under civil rights conspiracy statute based on alleged cover-up designed to
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excuse plaintiff’s arrest, because claim against town could not rest on police activity after

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arrest ocurred); Mackey v. County of San Bernardino, 2012 WL 5471061, *14 (C.D. Cal.,

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Sept. 28, 2012) (EDCV 09-1124-GW SP) , adopted by, 2012 WL 5465857 (C.D. Cal., Nov.

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9, 2012) (defendant’s alleged cover-up of shooting constituted after-the-fact conduct

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insufficient to render him liable for excessive force).
Accordingly, plaintiff’s Fourth Amendment excessive force claim survives screening

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as against Sousa and Johnson in their individual capacities, but not as against Pederson,

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Stringer, and Proctor.

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II.

ANY DUE PROCESS CLAIM BASED ON THE ALLEGED COVER-UP IS

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PREMATURE.

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Liberally construed, the Complaint asserts a due process claim against Proctor based

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on allegations that Proctor tried to cover up the assault by refusing to provide plaintiff with

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photographs of his injuries and other evidence from Proctor’s investigation. (Complaint at

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2.)
Allegations that a defendant participated in a cover-up state a Section 1983 claim

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only if the cover-up deprived a plaintiff of his right of access to courts by causing him to fail

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to obtain redress for the violation that was the subject of the cover-up. See Delew v.

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Wagner, 143 F.3d 1219, 1222-23 (9th Cir. 1998); Karim-Panahi, 839 F.2d at 625. In order to

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allege such a claim, plaintiff must allege that the cover-up actually precluded him from

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prevailing in a state or federal lawsuit against the wrongdoers. Delew, 143 F.3d at 1222-23.

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Thus, a cover-up claim is premature when, as here, plaintiff’s action seeking redress for the

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underlying violations remains pending. See id.; Karim-Panahi, 839 F.2d at 625 (claim

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alleging police cover-up of misconduct was premature when action challenging misconduct

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was pending).
Accordingly, plaintiff cannot bring a due process cover-up claim at this time.

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III.

PLAINTIFF FAILS TO STATE A CLAIM FOR INADEQUATE MEDICAL CARE.
Plaintiff also asserts a claim for inadequate medical care. Plaintiff does not specify

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against whom he is asserting this claim, but he appears to be asserting it against one or

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more of the Doe defendants.

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A.

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The state must provide medical care to prisoners, because their incarceration has

Applicable Federal Law

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deprived them of the ability to secure medical care for themselves. Estelle v. Gamble, 429

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U.S. 97, 103 (1976); Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). Failure

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to provide medical care may violate the Cruel and Unusual Punishment Clause of the Eighth

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Amendment if it amounts to deliberate indifference to a prisoner's serious medical needs.

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Estelle, 429 U.S. at 104

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A determination of "deliberate indifference" involves an examination of two elements:

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the seriousness of the prisoner's medical need and the nature of the defendant's response

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to that need. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other

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grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)(en banc). A

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serious medical need exists if failure to treat the condition could result in further significant

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injury or the unnecessary and wanton infliction of pain. McGuckin, 974 F.2d at 1059.

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Examples of serious medical needs include: ‘[t]he existence of an injury that a reasonable

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doctor or patient would find important and worthy of comment or treatment; the presence of

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a medical condition that significantly affects an individual’s daily activities; or the existence

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of chronic and substantial pain.” Id. at 1059-60.

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Deliberate indifference requires that defendants purposefully ignore or fail to respond

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to the prisoner's pain or medical need. McGuckin, 974 F.2d at 1060. Deliberate

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indifference "may appear when prison officials deny, delay or intentionally interfere with

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medical treatment, or it may be shown in the way in which prison physicians provide medical

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care." Id. at 1059; see Estelle, 429 U.S. at 104-05. However, an inadvertent or negligent

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failure to provide medical care does not constitute deliberate indifference. Estelle, 429 U.S.

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at 105-06. When medical treatment is delayed rather than denied, the delay generally
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amounts to deliberate indifference only if it caused further harm. Wood v. Housewright, 900

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F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dept., 865 F.2d 198, 200 (9th Cir. 1989);

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Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985); see

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also Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (delayed dental care did not violate

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Eighth Amendment because plaintiffs did not show that “delays occurred to patients with

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problems so severe that delays would cause significant harm”).

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B.

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Since plaintiff had not yet been convicted at the time he was allegedly denied medical

Analysis

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care, his claim arises under the due process clause, but Eighth Amendment standards

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apply. See Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002); Frost v.

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Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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Plaintiff’s inadequate medical care claim rests on his allegation that he was forced to

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wait the entire weekend to see a dentist. (Complaint at 3,6.) Plaintiff’s factual allegations,

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however, bely any finding of deliberate indifference. Plaintiff was booked into the jail late

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Friday evening. When he complained about his pain and inability to eat on Saturday

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morning, he was promptly taken to a nurse, who gave him Tylenol for the pain. There were

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no dentists working in the jail medical unit during the weekend, but plaintiff was taken to a

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dentist Monday morning. He does not allege that the two-day delay caused any further

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harm to his teeth. See Hallett, 296 F.3d at 746; Hunt, 865 F.2d at 200; Shapley, 766 F.2d at

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407.

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Moreover, plaintiff does not specify against whom he is asserting this claim. If he is

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asserting it against the duty nurse he saw on Saturday, his own allegations show that she

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could not have procured him a visit to the dentist any earlier than Monday.

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Accordingly, plaintiff’s denial of medical care claim does not survive screening.
IV.

PLAINTIFF FAILS TO STATE A CLAIM AGAINST DEFENDANTS IN THEIR

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OFFICIAL CAPACITIES.

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Plaintiff has sued the named defendants in their official as well as individual

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capacities. (Complaint at 2.)
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An official capacity claim is merely another way of pleading a claim against the

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governmental entity of which the official is an agent. Monell v. Department of Social

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Services, 436 U.S. 658, 690 n.55 (1978); see also Kentucky v. Graham, 473 U.S. 159, 166

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(1985).. Consequently, plaintiff's claims against defendants in their official capacities are, in

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effect, claims against their employing entity, the Sheriff’s Department.

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To allege a Section 1983 claim against a local governmental entity such as the

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Sheriff’s Department, plaintiff must allege not only a constitutional deprivation but also a

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policy, custom, or practice of the Sheriff’s Department that was the "moving force" of the

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constitutional deprivation. Monell, 436 U.S. 658, 694-95 (1978); Villegas v. Gilroy Garlic

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Festival Ass'n, 541 F.3d 950, 957 (9th Cir. 2008). A local governmental entity "may not be

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sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is

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when execution of a government's policy or custom, whether made by its lawmakers or by

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those whose edicts or acts may fairly be said to represent official policy, inflicts the injury

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that the government as an entity is responsible under § 1983." As the Ninth Circuit has

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recently explained: “Under federal law, the County cannot be held vicariously liable for its

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deputies' acts of excessive force. The County may be held liable only if it has adopted an

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illegal or unconstitutional policy or custom” that resulted in the excessive force.” Cameron v.

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Craig, 713 F.3d 1012, 1023 (9th Cir. 2013) (internal quotation marks and citations omitted).

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Plaintiff has not identified any policy, custom, or practice of the Sheriff’s Department

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that resulted in the deputies’ use of excessive force against him. See Cameron, 713 F.3d at

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1023 (County entitled to summary judgment because plaintiff did not identify “any custom or

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policy of the County that guided the deputies’ use of force in the search and arrest”).

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Absent such allegations, he has not alleged a claim against defendants in their official

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capacities.

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For the reasons set forth herein, the Complaint is DISMISSED WITH LEAVE TO
AMEND.

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If Plaintiff desires to pursue this action, he is ORDERED to file a First Amended

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Complaint within thirty (30) days of the date of this Order, which remedies the deficiencies

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discussed above.

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If Plaintiff chooses to file a First Amended Complaint, it should: (1) bear the docket

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number assigned in this case; (2) be labeled "First Amended Complaint"; (3); be filled out

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exactly in accordance with the directions on the form; and (4) be complete in and of itself

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without reference to the previous complaints or any other pleading, attachment or

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document. The Clerk is directed to provide plaintiff with a blank Central District of California

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civil rights complaint form, which plaintiff must fill out completely and resubmit.

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Plaintiff is admonished that, if he fails to file a First Amended Complaint by the

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deadline set herein, the Court may recommend that this action be dismissed for

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failure to prosecute and failure to comply with a Court order.

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/s/ John E. McDermott
JOHN E. MCDERMOTT
UNITED STATES MAGISTRATE JUDGE

DATED: June 30, 2014

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