Lopez v. Sheriffs Department of Kern County

Filing 15

FINDINGS and RECOMMENDATIONS Dismissing the Action Without Prejudice for Lack of Jurisdiction, signed by Magistrate Judge Jennifer L. Thurston on 10/11/2016. Referred to Judge Dale A. Drozd. Objections to F&R due within 14 days. (Hall, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN BENITO LOPEZ, Plaintiff, 12 v. 13 14 KERN COUNTY SHERIFF’S DEPT., Defendant. 15 16 ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-00095 - DAD- JLT FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION WITHOUT PREJUDICE FOR LACK OF JURISDICTION Plaintiff Ruben Benito Lopez is proceeding pro se and in forma pauperis in this action. He 17 18 asserts the Kern County Sheriff’s Department is liable for excessive use of force and negligence when 19 he was placed under arrest on February 6, 2014. Because Plaintiff fails to allege facts to support a 20 claim for excessive use of force, he fails to show this Court has jurisdiction over the matter. Therefore, 21 the Court recommends that the action be DISMISSED without prejudice. 22 I. 23 Screening Requirement When a plaintiff proceeds in forma pauperis, the Court is required to review the complaint, and 24 shall dismiss the case at any time if the Court determines that the action is “frivolous, malicious or 25 fails to state a claim on which relief may be granted; or . . . seeks monetary relief against a defendant 26 who is immune from such relief.” 28 U.S.C. 1915(e)(2). The Court must screen the First Amended 27 Complaint because an amended complaint supersedes the previously filed complaint. See Forsyth v. 28 Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 1 1 2 II. Pleading Standards The Federal Rules of Civil Procedure govern the standards for pleading in the federal courts. 3 A pleading must include a statement affirming the court’s jurisdiction, “a short and plain statement of 4 the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may 5 include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a). The Federal Rules 6 adopt a flexible pleading policy, and pro se pleadings are held to “less stringent standards” than 7 pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972). 8 9 A complaint must give fair notice and state the elements of the plaintiff’s claim in a plain and succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The 10 purpose of the complaint is to give the defendant fair notice of the claims against him, and the grounds 11 upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The 12 Supreme Court noted, 15 Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement. 16 Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (internal quotation marks and citations omitted). Vague 17 and conclusory allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 18 268 (9th Cir. 1982). The Court clarified further, 13 14 19 20 21 22 [A] complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Citation.] A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation.] The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation.] Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief. 23 24 Iqbal, 556 U.S. at 679 (citations omitted). When factual allegations are well-pled, a court should 25 assume their truth and determine whether the facts would make the plaintiff entitled to relief; legal 26 conclusions are not entitled to the same assumption of truth. Id. The Court may grant leave to amend a 27 complaint to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 28 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc). 2 1 III. Factual Allegations Plaintiff reports that he was arrested on February 6, 2014 for “an assault [with a] deadly 2 3 weapon.” (Doc. 12 at 3) He asserts that officers with Kern County Sheriff’s Department came to his 4 residence, and Plaintiff surrendered from his back yard. (Id.) According to Plaintiff, a deputy “called 5 it in that they have a suspect in custody [and] that they were escorting [Plaintiff] to a patrol car.” (Id.) 6 Plaintiff alleges he did not resist arrest and was placed in handcuffs. (Doc. 12 at 4) He asserts 7 that “a patrol car pulled up and Officer Weiss’s K-9 partner got [loose] and attacked.” (Id.) Plaintiff 8 asserts he “was put through excrusiating (sic) pain.” (Id.) Plaintiff alleges he now has “over nine 9 scars on [his] left leg” from the dog bite. (Id.) 10 11 12 IV. Discussion and Analysis Based upon the above factual allegations, Plaintiff asserts the Kern County Sheriff’s Department is liable for negligence and using excessive force during the course of his arrest. 13 A. 14 Plaintiff seeks to state a claim for excessive force in this action under 42 U.S.C. § 1983 15 (“Section 1983”), which “is a method for vindicating federal rights elsewhere conferred.” Albright v. 16 Oliver, 510 U.S. 266, 271 (1994). Thus, an individual may bring an action for the deprivation of civil 17 rights pursuant to Section 1983, which states in relevant part: 18 19 20 Excessive Force Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 21 22 42 U.S.C. § 1983. To state a cognizable claim under Section 1983, a plaintiff must allege facts from 23 which it may be inferred (1) he was deprived of a federal right, and (2) a person or entity who 24 committed the alleged violation acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); 25 Williams v. Gorton, 529 F.2d 668, 670 (9th Cir. 1976). Here, Plaintiff asserts the Kern County 26 Sheriff’s Department is liable for the use of excessive force in the course of his arrest. (Doc. 12 at 3) 27 The Supreme Court of the United States determined that the Due Process Clause of the 28 Fourteenth Amendment protects individuals who have not yet been convicted of a crime “from the use 3 1 of excessive force that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 388 (1989). 2 However, allegations of excessive force during the course of an arrest are analyzed under the Fourth 3 Amendment, which prohibits arrests without probable cause or other justification. Id. (“claim[s] that 4 law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or 5 other ‘seizure’ … are properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ 6 standard”); see also Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994) (“the use of force to effect an 7 arrest is subject to the Fourth Amendment’s prohibition on unreasonable seizures”). The Supreme 8 Court explained, 9 10 11 As in other Fourth Amendment contexts . . . the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional. 12 13 Graham, 490 U.S. at 396-97 (1989) (internal citations omitted). The issue is “whether force was 14 applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause 15 harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). In resolving this issue, the Ninth Circuit instructs 16 courts to consider “the totality of the circumstances and . . . whatever specific factors may be 17 appropriate in a particular case.” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). 18 In Graham, the Supreme Court set forth factors to be considered in evaluating whether the force 19 used was reasonable, “including the severity of the crime at issue, whether the suspect poses an 20 immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or 21 attempting to evade arrest by flight.” Id., 490 U.S. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8-9 22 (1985). In addition, Court may consider “whether officers administered a warning, assuming it was 23 practicable.” George v. Morris, 736 F.3d 829, 837-38 (9th Cir. 2013) (citing Scott v. Harris, 550 U.S. 24 372, 381-82 (2007)). Ultimately, the “reasonableness” of the actions “must be judged from the 25 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” 26 Graham, 490 U.S. at 396. 27 28 Significantly, as the Court previously informed Plaintiff, accidental use of force does not support a claim for excessive force. (See Doc. 11 at 4) The Supreme Court explained that “liability 4 1 for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” 2 Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015) (citing County of Sacramento v. Lewis, 523 3 U.S. 833, 849 (1998)). “Thus, if an officer’s Taser goes off by accident or if an officer unintentionally 4 trips and falls on a detainee, causing him harm, the pretrial detainee cannot prevail on an excessive 5 force claim.” Id.; see also Clement v. Gomez, 298 F.3d 898, 903-904 (9th Cir. 2002) (granting 6 qualified immunity on an eighth amendment excessive force claim because the plaintiffs failed to 7 show the defendants maliciously and sadistically applied force for the purpose of causing harm). 8 Plaintiff alleges the K-9 “got loses (sic) and attacked.” (Doc. 12 at 4) Previously, he asserted 9 that “the K-9 officer accidently released his K-9 dog and it attacked.” (Doc. 1 at 3) Whether the dog 10 was “accidently released” or simply got loose, Plaintiff fails to allege facts supporting the conclusion 11 that Kern County Sheriff deputies intentionally—or “maliciously and sadistically”—caused Plaintiff 12 harm. See Hudson 503 U.S. at 7. Without such intent, Plaintiff fails to state a claim for excessive 13 force in violation of the Fourteenth Amendment. See Kingsley, 135 S. Ct. at 2472. Rather, it appears 14 Plaintiff’s claims are rooted in negligence and he may seek relief in the state court. 15 B. 16 Plaintiff’s only remaining cause of action in his First Amended Complaint is for negligence. 17 (See Doc. 12 at 3) Because Plaintiff failed to state a constitutional violation of his rights, the Court 18 should not exercise supplemental jurisdiction over his remaining claim. 28 U.S.C. § 1367(a); Herman 19 Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001). 20 V. 21 Supplemental Jurisdiction Findings and Recommendations Plaintiff fails to allege facts sufficient to support his claim for excessive force amounting to 22 punishment. Because Plaintiff was informed of the legal standards governing his claim and failed to 23 allege sufficient facts in his amended pleading, the Court finds further leave to amend would be futile. 24 Accordingly, IT IS HEREBY RECOMMENDED: 25 1. Plaintiff’s complaint be DISMISSED without prejudice for lack of jurisdiction; and 26 2. The Clerk of Court be DIRECTED to close the matter. 27 These Findings and Recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 5 1 Rules of Practice for the United States District Court, Eastern District of California. Within 14 days 2 after being served with these Findings and Recommendations, Plaintiff may file written objections with 3 the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 4 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 5 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); 6 Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014). 7 8 9 10 IT IS SO ORDERED. Dated: October 11, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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