Gonzalez v. Visalia Police Department, et al.

Filing 9

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Michael J. Seng on 4/27/2012. Amended Complaint Due Within Thirty (30) Days. (Attachments: # 1 Amended Complaint Form) (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RENE GONZALEZ,

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Plaintiff,

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CASE NO.

1:11-cv-01266-AWI-MJS (PC)

ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
(ECF No. 1)
VISALIA POLICE DEPARTMENT, et al.,
AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS

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Defendants.

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/

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SCREENING ORDER

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I.

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PROCEDURAL HISTORY
On August 1, 2011, Plaintiff Rene Gonzalez, a state prisoner proceeding pro se and

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in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.)
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Plaintiff’s Complaint is now before the Court for screening.
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SCREENING REQUIREMENT

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

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

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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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).

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III.

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SUMMARY OF COMPLAINT
Plaintiff names the Visalia Police Department, Officer Saenz, and Officer Martinez

as Defendants in this action. Plaintiff alleges the following:

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On August 4, 2010, two police officers arrived at Plaintiff’s apartment in response

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to a noise complaint and instructed Plaintiff to return to his apartment and turn down the

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volume of his music. Those officers left without incident. Plaintiff then realized that he had

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locked himself out of his apartment and could not immediately turn down the volume of his

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music. Plaintiff was looking for his keys as the apartment manager approached and asked

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if Plaintiff had lost something. At that point, Officers Saenz and Martinez arrived at

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Plaintiff’s apartment. One of them, the male, called out Plaintiff’s name, tackled him, and

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slammed his head into the ground at least twice, knocking out two front teeth. (Compl. at
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3.)
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IV.

ANALYSIS
A.

Section 1983

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To state a claim under Section 1983, a plaintiff must allege two essential elements:
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(1) that a right secured by the Constitution or laws of the United States was violated and

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(2) that the alleged violation was committed by a person acting under color of state law.

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

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1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

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face.’” Id. Facial plausibility demands more than the mere possibility that a defendant

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committed misconduct and, while factual allegations are accepted as true, legal

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conclusions are not. Id. at 1949-50.

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B.

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The Complaint identifies the Visalia Police Department, a municipal entity, as a

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Defendant. A local government is liable under § 1983 only if a constitutional violation

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“implements or executes a policy statement, ordinance, regulation, or decision officially

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Municipal Liability

adopted and promulgated by that [entity's] officers.” Edgerly v. City & Cnty. of S.F., 599

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F.3d 946, 960 (9th Cir. 2010) (quoting Monell v. Department of Social Services, 436 U.S.

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658, 690 (1978)). A local government entity will be liable “only where the entity's policies

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evince a ‘deliberate indifference’ to the constitutional right and are the ‘moving force behind

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the constitutional violation.’” Id. (quoting Levine v. City of Alameda, 525 F.3d 903, 907 (9th

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Cir. 2008)). A policy can be an official policy or one made “by those whose edicts or acts

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may fairly be said to represent official policy.” Dietrich v. John Ascuaga's Nugget, 548 F.3d

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892, 900 (9th Cir. 2008) (quoting Monell, 436 U.S. at 694). It can also be a “widespread

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practice that . . . is so permanent and well settled as to constitute a ‘custom or usage’ with

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the force of law.” Gillette v. Delmore, 979 F.2d 1342, 1348–49 (9th Cir. 1992) (quoting City

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of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)).

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Thus, to prevail on a § 1983 claim against a municipal defendant, a plaintiff must

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show (1) that he possessed a constitutional right of which he was deprived; (2) that the

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municipality had a policy; (3) that this policy amounts to deliberate indifference to the

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plaintiff's constitutional right; and (4) that the policy is the moving force behind the

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constitutional violation. See Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir.

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2011). A municipal policy is the “moving force” behind a constitutional violation if it is the

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proximate cause of the constitutional injury. Van Ort v. Estate of Stanewich, 92 F.3d 831,
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837 (9th Cir. 1996).

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Plaintiff has failed to allege municipal liability. The Complaint does not identify any

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specific policy, widespread practice, or ratified conduct that was the moving force behind

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the alleged constitutional violation. As plead, the Complaint simply describes the actions

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of an individual officer acting on his own.

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The Court will grant Plaintiff an opportunity to amend to allege truthful facts, not
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opinion or speculation, identifying specific policies and practices of the Visalia Police
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Department, if any, that were the moving force behind the alleged use of excessive force

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against Plaintiff.

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C.

Excessive Force

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A claim that a law enforcement officer used excessive force during the course of an

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arrest is analyzed under the Fourth Amendment and an objective reasonableness

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standard. Graham v. Connor, 490 U.S. 386, 395 (1989). Under this standard, “‘[t]he force

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which [i]s applied must be balanced against the need for that force: it is the need for force

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which is at the heart of the Graham factors.’” Liston v. County of Riverside, 120 F.3d 965,

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976 (9th Cir. 1997) (quoting Alexander v. City and County of San Francisco, 29 F.3d 1355,

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1367 (9th Cir. 1994). The Graham factors are a non-exhaustive list of considerations used

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to measure the amount of force that is necessary in a particular situation: “[1] the severity

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of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of

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the officers or others, and [3] whether he is actively resisting arrest or attempting to evade

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arrest by flight.” Graham, 490 U.S. at 396.

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“The right to employ ‘some degree of physical coercion or threat thereof’ to effect

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an arrest accompanies the right to make the arrest . . . .” Brooks v. City of Seattle, 599

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F.3d 1018, 1025 (9th Cir. 2010) (quoting Graham, 490 U.S. at 396). However, the force

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applied must be necessary to be reasonable. Where police have control over a suspect,

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the use of further force to bring the suspect under control may be unreasonable. Id.

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Plaintiff alleges that he was standing outside of his apartment after a police officer
had instructed him to turn down his stereo inside. Another officer, the male Defendant,

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then tackled Plaintiff and slammed his head into the ground causing the injury described
above. (Compl. at 3.)
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Applying the Graham factors, Plaintiff has not pled facts sufficient to state a

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cognizable claim for excessive force in violation of his Fourth Amendment rights. The

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severity of Plaintiff’s crime, if only noise disturbance, certainly seems minimal. If, in

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addition, Plaintiff was not an immediate threat to the safety of the officers or the public and

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was not in flight, it may be that the Plaintiff could state an excessive force claim. However,

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the facts in Plaintiff’s Complaint do not address these issues; they leave them unspoken.

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The factual allegations do not reveal what, if anything, Plaintiff was saying or doing at the

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time defendants arrived. If he was standing quietly and immobile outside of his apartment

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when Defendant police officer, with no warning, justification, or motivation whatsoever

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other than to cause harm to Plaintiff, ran up and tackled him violently to the ground, he

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should explicitly so allege. If, however, words were exchanged or Plaintiff reacted in other

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ways to the Defendant officers’ arrival, Plaintiff should so state.

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In addition, the complaint names two officers as Defendants, but only one tackled

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Plaintiff. The Court is unable to discern how the other officer, the female, violated

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Plaintiff’s federal rights. Under § 1983, Plaintiff must demonstrate that each defendant

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personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,
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934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state

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a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572

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F.3d 962, 969 (9th Cir. 2009).

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The Court will provide Plaintiff with an opportunity to amend. In order to state a
cognizable claim, Plaintiff must address the specific deficiencies discussed above and

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describe what each officer did to violate his rights.
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V.

CONCLUSION AND ORDER

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Plaintiff’s Complaint does not state a claim for relief under section 1983. The Court

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will grant Plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d

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1446, 1448-49 (9th Cir. 1987). If Plaintiff opts to amend, he must demonstrate that the

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alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 129 S.Ct. at 1948-

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49. Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim that is plausible

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on its face.’” Id. at 1949 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also

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demonstrate that each named Defendant personally participated in a deprivation of his

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rights. Jones, 297 F.3d at 934.
Plaintiff should note that although he has been given the opportunity to amend, it

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is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007). Plaintiff should carefully read this Screening Order and focus his efforts on curing

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the deficiencies set forth above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint

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be complete in itself without reference to any prior pleading. As a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,

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57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer
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serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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The amended complaint should be clearly and boldly titled “First Amended Complaint,”

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refer to the appropriate case number, and be an original signed under penalty of perjury.

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Plaintiff's amended complaint should be brief. Fed. R. Civ. P. 8(a). Although accepted as

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true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the
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speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted).

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Accordingly, it is HEREBY ORDERED that:

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1.

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The Clerk’s Office shall send Plaintiff (1) a blank civil rights complaint form

and (2) a copy of his Complaint, filed August 1, 2011;

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2.

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Plaintiff’s Complaint is dismissed for failure to state a claim upon which relief

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may be granted;

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3.

Plaintiff shall file an amended complaint within thirty (30) days; and

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4.

If Plaintiff fails to file an amended complaint in compliance with this order, this

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action will be dismissed, with prejudice, for failure to state a claim and failure to comply
with a court order.

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IT IS SO ORDERED.
Dated:
ci4d6

April 27, 2012

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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