McCullough v. Fresno Police Department

Filing 10

FINDINGS and RECOMMENDATIONS: Plaintiff States a Cognizable Claim and Recommending Dismissal of Certain Claims and Defendants 7 Amended Complaint filed by Dawn McCullough. Matter referred to Judge Chief Judge Anthony W. Ishii; Objections to F&R due by 5/14/2012, signed by Magistrate Judge Michael J. Seng on 04/09/2012. (Yu, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAWN McCULLOUGH,

CASE NO.

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FINDINGS AND RECOMMENDATIONS,
FINDING PLAINTIFF STATES A
COGNIZABLE
CLAIM
AND
RECOMMENDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS

Plaintiffs,

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1:10-cv-2295-AWI-MJS

v.

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FRESNO POLICE DEPARTMENT,

(ECF No. 7)

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OBJECTIONS DUE WITHIN THIRTY DAYS

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Defendant.

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/

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Plaintiff Dawn McCullough (“Plaintiff”), proceeding in forma pauperis, initiated this

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action by filing a pro se Complaint on December 20, 2010. (ECF No. 1.) The Court

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screened Plaintiff’s initial Complaint on March 25, 2011, and dismissed it with leave to

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amend. (ECF No. 6.) Plaintiff filed a First Amended Complaint on May 2, 2011. (ECF No.

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7.) Plaintiff’s First Amended Complaint is now before the Court for screening.

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I.

SCREENING REQUIREMENT

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The in forma pauperis statute provides that “the court shall dismiss the case at any

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time if the court determines that . . . the action or appeal . . . fails to state a claim upon

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which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). A complaint must contain “a

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short and plain statement of the claim showing that the pleader is entitled to relief . . . .”

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Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare

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

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do not suffice,” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp.

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v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge

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unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). While factual allegations are accepted as

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true, legal conclusion are not. Iqbal, 129 S. Ct. at 1949.

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II.

FACTUAL ALLEGATIONS

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Plaintiff names the following individuals as Defendants: 1) Kevin Yambupah (ID:

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P1555), 2) Maribel Ramirez (ID: D3038), 3) Miguel Archan (ID: P1444), 4) Eddie Barrious

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(ID: S5107), 5) Chris Cooper(ID: P827), 6) Gregory Taylor (ID: P991), 7) Alex Robles (ID:

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S142), 8) Josh Bowling (ID: P1188), 9) Robert Chavez (ID: P1348), 10) See Xiong (ID:

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D3061), 11) Tami Worden (ID: D3081), 12) Mayiyen Yang (ID: D3024), 13) Kaylie

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Rodriguez (ID: D3080), 14) Jodi Garland (ID: D3076), 15) Lorrie Emerson (ID: D3023), 16)

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Aisha Jones (ID: P1311), 17) Angie Landin (ID: D3037). Plaintiff alleges that as a result

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of Defendants’ violations of her rights under the First, Fourth, and Fourteenth Amendments

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she was injured, and subjected to pain, suffering, and emotional distress.

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Plaintiff alleges as follows:
On December 9, 2008, at 11:15 p.m, Plaintiff was involved in an argument with her

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brother, David Webster. (Am. Compl. at 3.) Plaintiff then went to take a bath. (Id.)
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Defendant Yambupah kicked the bathroom door open. (Id.) Plaintiff told Defendant
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Yambupah that she was naked, and would get out of the bath, put on clothes, and then talk

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to him. (Id.) Defendant Yambupah refused to let her do this, and instead took Plaintiff’s

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left arm and pulled her out of the bath. (Id.) Plaintiff fell on the floor. (Id.) Defendant

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Yambupah pulled Plaintiff into the living room in front of the open front door. (Id.) At this

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point, Plaintiff was handcuffed.

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Defendants M. Ramirez and Archan were also inside the apartment. (ECF No. 7-1.)

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Defendants Borrows, Cooper, Taylor, Robles, Yang, Jones, K. Rodriguez, Garland, Landin,

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Bowling, Chavez, Xiong, Worden, and Emerson were standing outside. (Id.) Plaintiff was

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(Id.)

Plaintiff continued to ask for clothes.

(Id.)

never arrested or given a court date. (Am. Compl. at 4.) She never had charges filed

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against her. (Id. at 4.)
Plaintiff asks for $2.7 million for pain and suffering, as well as for mental distress.

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III.

ANALYSIS

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A.

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As Plaintiff was previously informed in the Court’s original screening order (ECF No.

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Introduction

6 at 4), the Court will construe her claims as though brought pursuant to 42 U.S.C. § 1983.

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Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges,

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or immunities secured by the Constitution and laws’ of the United States.” Wilder v.

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Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983

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is not itself a source of substantive rights, but merely provides a method for vindicating

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federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). To

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state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right

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secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged violation was committed by a person acting under the color of state law. See West

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v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th

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Cir. 1987).

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Plaintiff alleges violations of her rights under the First, Fourth, and Fourteenth
Amendments.

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B.

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The First Amendment states that “Congress shall make no law respecting an

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establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom

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First Amendment Claim

of speech, or of the press; or the right of the people peaceably to assemble, and to petition

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the Government for a redress of grievances.”

U.S. CONST . amend. I.

The First

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Amendment protects the freedom of religion, free speech, the press, the right to assemble,

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and to petition the Government for redress of grievances. Id.

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Although Plaintiff alleges violation of First Amendment rights, she does not allege

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any facts suggesting she was denied any right or freedom protected by that Amendment.

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Plaintiff has not asserted a claim under the First Amendment. Nothing in the facts she

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presents implicates a First Amendment right. No useful purpose would be served by giving
Plaintiff an opportunity to amend this claim. The Court recommends dismissal of it.

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B.

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Plaintiff alleges that her rights under the Fourteenth Amendment were violated,

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apparently intending to allege violation of the the Due Process Clause of the Fourteenth

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Fourteenth Amendment Claim

Amendment.

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The Ninth Circuit has found that

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[t]o establish a violation of substantive due process ..., a plaintiff is ordinarily
required to prove that a challenged government action was clearly arbitrary
and unreasonable, having no substantial relation to the public health, safety,
morals, or general welfare. Where a particular amendment provides an
explicit textual source of constitutional protection against a particular sort of
government behavior, that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing a plaintiff's claims.

Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (citations, internal quotations, and

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brackets omitted) overruled on other grounds by Unitherm Food Systems, Inc.v. Swift
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Eckrich, Inc., 546 U.S. 394 (2006); County of Sacramento v. Lewis, 523 U.S. 833, 842
(1998).

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In this case, the Court concludes that the Fourth Amendment “provides [the] explicit

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textual source of constitutional protection....” Patel, 103 F.3d at 874. Therefore, the Fourth

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Amendment rather than the Due Process Clause of the Fourteenth Amendment governs

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Plaintiff's constitutional claims.

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C.

Fourth Amendment Claim

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The gravamen of Plaintiff’s claims bring them within the ambit of the Fourth

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Amendment protection against excessive force and intrusion into one’s right to bodily

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integrity.

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The Fourth Amendment protects an individual’s right to be free from unreasonable
searches and seizures.

U.S. Const. amend. IV.

Encompassed within the term

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“unreasonable seizure” is the right to be free from excessive force and protection from

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“unreasonable intrusions on one’s bodily integrity.” Fontana v. Haskin, 262 F.3d 871,

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878-79 (9th Cir. 2001). To state a Fourth Amendment claim, a plaintiff must show that the

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amount of force used was unreasonable or that the manner in which the arrest was

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effectuated was an unlawful intrusion into her bodily integrity. Gregory v. County of Maui,

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523 F.3d 1103, 1106 (9th Cir. 2008); Fontana, 262 F.3d at 879.

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“reasonableness” of a particular action “requires a careful balancing of the nature and

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Determining the

quality of the intrusion on the individual’s Fourth Amendment interests against the

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countervailing governmental interests at stake.” Id. (internal quotation marks omitted).

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To determine the reasonableness of the use of force, the Court first must evaluate “the

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type and amount of force inflicted.” Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.

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2003). The Court must then consider the importance of the government interests at stake

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by evaluating: (1) the severity of the crime at issue, (2) whether the suspect posed an

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immediate threat to the safety of the officers or others, and (3) whether the suspect was

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actively resisting arrest. See Graham v. Connor, 490 U.S. 386, 396 (1989). Finally, the
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Court must balance the gravity of the intrusion on the individual against the government’s

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need for that intrusion. Headwaters Forest Defense v. County of Humboldt, 240 F.3d

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1185, 1199 (9th Cir. 2000) (judgment vacated and case remanded for further consideration

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in light of Saucier v. Katz, 533 U.S. 194 (2001), by County of Humboldt v. Headwaters

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Forest Defense, 534 U.S. 801 (2001)) (judgment reaffirmed after remand by Headwaters

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Forest Defense v. County of Humboldt, 276 F.3d 1125, 1127 (9th Cir. 2002)).
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In this case, taking Plaintiff’s allegations as true, as the Court must at this stage of

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the proceeding, Defendant Yambupah pulled her naked from a bathtub and dragged her

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into the living room where he handcuffed her. Defendants M. Ramirez and Archan were

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inside the apartment at the time of the incident. At this point there is nothing before the

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Court to suggest that Plaintiff had precipitated the action by threatening or causing harm
to herself, the officers or anyone else or by resisting arrest. There is nothing to suggest

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it was necessary to “drag” her from the bathroom to the living room or to suggest a valid

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reason for not covering her naked body before taking her to the living room. Plaintiff

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alleges she was never arrested or charged. On these facts, the degree of force used to

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subdue Plaintiff could be construed as more than reasonably necessary under the

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circumstances.

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Accordingly, it appears that Plaintiff has stated a claim for a violation of her Fourth

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Amendment right to be free from excessive force and for violation of her right to bodily

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integrity against Defendant Yambupah. She has failed to state a Fourth Amendment claim

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against anyone else. Reportedly, Defendants M. Ramirez and Archan were present, but

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Plaintiff still, after having been given leave to amend, does not allege that they took or

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failed to take any action which violated her rights

The Court will recommend that

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Defendants M. Ramirez and Archan be dismissed from this action.

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D.

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Plaintiff also alleges claims against Defendants Borrows, Cooper, Taylor, Robles,

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Yang, Jones, K. Rodriguez, Garland, Landin, Bowling, Chavez, Xiong, Worden, Barrious,

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Section 1983 Linkage Requirement

and Emerson. However, Plaintiff has failed to link any of these Defendants to any action

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resulting in an injury to Plaintiff.
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Under section 1983, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). This requires the presentation of factual allegations sufficient to state a plausible

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claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962,

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969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this

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plausibility standard. Id.
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The statute clearly requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by the plaintiff.

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See Monell v. Department of Social Services, 436 U.S. 658 (1978). Government officials

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may not be held liable for the actions of their subordinates under a theory of respondeat

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superior. Iqbal, 129 S. Ct. at 1948. Since a government official cannot be held liable

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under a theory of vicarious liability in section 1983 actions, Plaintiff must plead sufficient

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facts showing that the official has violated the Constitution through his own individual

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actions. Id. at 1948. In other words, to state a claim for relief under section 1983, Plaintiff

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must link each named defendant with some affirmative act or omission that demonstrates

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a violation.

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Nowhere in the body of the Complaint does Plaintiff attribute any substantive action
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or wrong to Defendants Borrows, Cooper, Taylor, Robles, Yang, Jones, K. Rodriguez,

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Garland, Landin, Bowling, Chavez, Xiong, Worden, Barrious, or Emerson. Plaintiff only

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alleges that they were outside of the apartment when she was dragged into the living room

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without clothes.

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For the reasons stated above, the Court will recommend dismissal of these

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Defendants, further leave to amend appearing futile.
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IV.

CONCLUSION AND RECOMMENDATION

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Plaintiff stated a cognizable claim against Defendant Yambupah for violation of her

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Fourth Amendment right to be free from excessive force and for violation of her right to

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bodily integrity, but failed to state any other cognizable claim. Plaintiff has failed to state

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a claim under the First and Fourteenth Amendments and against Defendants M. Ramirez,

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Archan, Borrows, Cooper, Taylor, Robles, Yang, Jones, K. Rodriguez, Garland, Landin,

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Bowling, Chavez, Xiong, Worden, Barrious, or Emerson.

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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Plaintiff’s claims against Defendants M. Ramirez, Archan, Borrows, Cooper,

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Taylor, Robles, Yang, Jones, K. Rodriguez, Garland, Landin, Bowling,

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Chavez, Xiong, Worden, Barrious, and Emerson be dismissed with prejudice;

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Plaintiff’s First Amendment claim be dismissed with prejudice;

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3.

Plaintiff’s Fourteenth Amendment claim be dismissed with prejudice; and

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Plaintiff be given leave to proceed on her Fourth Amendment claim against

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Defendant Yambupah.

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These Findings and Recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within thirty days after being served with these findings and recommendations, any party

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may file written objections with the Court and serve a copy on all parties. Such a document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

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Any reply to the objections shall be served and filed within ten days after service of the

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objections. The parties are advised that failure to file objections within the specified time
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may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153
(9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
ci4d6

April 9, 2012

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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