Nielsen v. Lopez
Filing
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FINDINGS and RECOMMENDATIONS: (1) for Service of Cognizable Claim in 27 First Amended Prisoner Civil Rights Complaint; (2) to Dismiss all other Claims and Defendants with Prejudice; and (3) to Deny as Moot Plaintiff's Motion for Interlocutory Appeal 16 , signed by Magistrate Judge Michael J. Seng on 8/27/15. Referred to Judge Ishii; 14-Day Deadline. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LARRY NIELSEN,
CASE NO. 1:14-cv-01608-AWI-MJS (PC)
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Plaintiff,
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v.
JOSE LOPEZ, et al.,
Defendants.
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FINDINGS AND RECOMMENDATIONS:
(1) FOR SERVICE OF COGNIZABLE
CLAIM IN FIRST AMENDED COMPLAINT
AGAINST DEFENDANT LOPEZ (ECF No.
27); (2) TO DISMISS ALL OTHER CLAIMS
AND DEFENDANTS WITH PREJUDICE
(ECF No. 27); AND (3) TO DENY AS
MOOT PLAINTIFF’S MOTION FOR
INTERLOCUTORY APPEAL (ECF No. 16)
FOURTEEN
DEADLINE
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(14)
DAY
OBJECTION
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Plaintiff is civil detainee proceeding pro se and in forma pauperis in this civil rights
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action pursuant to 42 U.S.C. § 1983. (ECF No. 1 & 8.) The Court screened Plaintiff’s
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complaint and dismissed it for failure to state a claim but gave leave to amend. (ECF
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No. 8.) Plaintiff’s First Amended Complaint (ECF No. 27.) is now before the Court for
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screening.
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On May 18, 2015, Plaintiff filed a motion for interlocutory appeal. (ECF No. 16.)
The Court will also address this motion.
I.
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SCREENING REQUIREMENT
The Court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
raised claims that are legally “frivolous, malicious,” or that fail “to state a claim upon
which relief may be granted,” or that “seek monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee,
or any portion thereof, that may have been paid, the court shall dismiss the case at any
time if the court determines that . . . the action or appeal . . . fails to state a claim on
which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
II.
PLEADING STANDARD
Section 1983 “provides a cause of action for the ‘deprivation of any rights,
privileges, or immunities secured by the Constitution and laws’ of the United States.”
Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).
Section 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a method
for vindicating federal rights conferred elsewhere.’” Graham v. Connor, 490 U.S. 386,
393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)).
To state a claim under Section 1983, a plaintiff must allege two essential
elements: (1) that a right secured by the Constitution and laws of the United States was
violated and (2) that the alleged violation was committed by a person acting under the
color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); see also Ketchum v.
Cnty. of Alameda, 811 F.2d 1243, 1245 (9th Cir. 1987).
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 not required, but “[t]hreadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff
must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. Facial plausibility demands more than the mere possibility
that a defendant committed misconduct and, while factual allegations are accepted as
true, legal conclusions are not. Id.
III.
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Plaintiff is detained at Coalinga State Hospital (“CSH”) in Coalinga, California,
where the events giving rise to this action occurred.
Plaintiff alleges essentially the following:
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Plaintiff is a sixty-two-year-old dependent disabled adult. On September 2, 2013,
Plaintiff had a “heated verbal argument” with a fellow patient. (ECF No. 27 at 3.) Staff
sounded a “red light alarm.” (ECF No. 27 at 3.) CSH police responded and contained
the situation. Defendant also responded and without provocation pushed Plaintiff
against the wall, injuring him. Defendant has previously used excessive force against
elderly CSH patients.
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Plaintiff names Psychiatric
Technician Jose Lopez as Defendant.
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PLAINTIFF’S ALLEGATIONS
Plaintiff seeks monetary damages and declaratory relief for Defendant Lopez’s
use of excessive force.
IV.
ANALYSIS
A.
Excessive Force
Plaintiff, a civil detainee pursuant to California Welfare and Institutions Code '
6600 et seq., is not a prisoner within the meaning of the Prison Litigation Reform Act.
Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000).
He retains greater liberty
protections than individuals detained under criminal process and is “’entitled to more
considerate treatment and conditions of confinement than criminals whose conditions of
confinement are designed to punish.’” Jones v. Blanas, 393 F.3d 918, 931-32 (9th Cir.
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2004) (quoting Youngberg v. Romeo, 457 U.S. 307, 322 (1982)).
presumptively punitive when a civil “detainee is confined in conditions identical to, similar
to, or more restrictive” than his criminal counterparts. Id. at 933.
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Treatment is
A claim of excessive force by a detainee is analyzed under the objective
reasonableness standard. See Gibson v. Cnty of Washoe, 290 F.3d 1175, 1197 (9th
Cir.2002) (citing Graham v. Connor, 490 U.S. 386, 397 (1989)); see also Andrews v.
Neer, 253 F.3d 1052, 1060-61 (8th Cir. 2001) (citing Johnson-El v. Schoemehl, 878 F.2d
1043, 1048 (8th Cir.1989)) (applying objective reasonableness standard in context
of civil detainees).
The inquiry is whether Defendant's actions were “objectively
reasonable in light of the facts and circumstances confronting [him], without regard to
[his] underlying intent or motivation. Graham, 490 U.S. at 397 (quotations omitted). The
“nature and quality of the intrusion” must be balanced “against the countervailing
governmental interests at stake.” Id. at 396. The Court may consider such factors as the
severity of the incident giving rise to the use of force, whether Plaintiff posed an
immediate threat to the safety of Defendant or others, and whether Plaintiff was actively
attempting to avoid being subdued or brought under control. See Gibson, 290 F.3d at
1197.
The First Amended Complaint is brief and does not provide a detailed description
of the circumstances giving rise to the use of force. However, Plaintiff alleges that he had
only a verbal argument with another patient, and “the situation was under complete
control” when Defendant arrived.
(ECF No. 27 at 4.)
Nevertheless, according to
Plaintiff, Defendant Lopez physically attacked and severely injured Plaintiff at a time
when Plaintiff did not pose an immediate, or for that matter, any threat to anyone
Plaintiff's allegations taken as true, as they must be at this stage of the
proceedings, adequately allege that Defendant Lopez’s conduct was objectively
unreasonable under the circumstances, and therefore state a cognizable excessive
force claim against him.
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Declaratory Relief
In addition to damages, Plaintiff seeks a declaration that Defendant violated his
constitutional rights. Plaintiff’s claims for damages necessarily entail a determination of
whether his rights were violated, and therefore, his separate request for declaratory relief
is subsumed by those claims. Rhodes v. Robinson, 408 F.3d 559, 566 n.8 (9th Cir.
2005).
V.
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MOTION FOR INTERLOCUTORY APPEAL
On May 18, 2015, Plaintiff filed a motion seeking permission to file an
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interlocutory appeal of this Court’s order dismissing his complaint with leave to amend
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and denying as moot his requested injunctive relief (ECF No. 8.). (ECF No. 16.) The
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motion is addressed to the Ninth Circuit. On that same date, and without this Court
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ruling on his motion, Plaintiff filed his appeal with the Ninth Circuit. (ECF No. 18.) The
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Ninth Circuit dismissed Plaintiff’s appeal for lack of jurisdiction. (ECF No. 22.) Plaintiff
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then chose to file his First Amended Complaint. (ECF No. 27.) Accordingly, it is hereby
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recommended that Plaintiff’s pending motion for interlocutory appeal be DENIED as
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moot.
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VI.
CONCLUSION AND ORDER
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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claim against Defendant Lopez;
2.
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All other claims asserted in the First Amended Complaint and all other
named Defendants be dismissed with prejudice,
3.
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Plaintiff proceed on his First Amended Complaint on the excessive force
Service be initiated on the following Defendant:
Jose Lopez, Psychiatric Technician at CSH
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The Clerk of the Court should send Plaintiff one (1) USM-285 form, one (1)
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summons, a Notice of Submission of Documents form, an instruction sheet
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and a copy of the First Amended Complaint filed August 17, 2015;
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recommendations, Plaintiff should complete and return to the Court the
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notice of submission of documents along with the following documents:
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a.
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Upon receipt of the above-described documents, the Court should direct
the United States Marshal to serve the above-named Defendants pursuant
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Two (2) copies of the endorsed First Amended Complaint filed
August 17, 2015; and
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One completed USM-285 form for each Defendant listed above,
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Completed summons,
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Within thirty (30) days from the date of adoption of these findings and
to Federal Rule of Civil Procedure 4 without payment of costs.
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Plaintiff’s motion for interlocutory appeal (ECF No. 16.) be DENIED.
These findings and recommendations will be submitted to the United States
District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §
636(b)(1). Within fourteen (14) days after being served with the findings and
recommendations, the parties may file written objections with the Court. The document
should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”
A party may respond to another party’s objections by filing a response within fourteen
(14) days after being served with a copy of that party’s objections. The parties are
advised that failure to file objections within the specified time may result in the waiver of
rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter
v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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Dated:
August 27, 2015
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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