Bulgara v. County of Stanislaus et al

Filing 6

FINDINGS and RECOMMENDATIONS Recommending Dismissing Certain Claims and Defendants, signed by Magistrate Judge Stanley A. Boone on 7/30/18. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUAN S. BULGARA,
Plaintiff,

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Case No. 1:18-cv-00804-DAD-SAB
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSING CERTAIN
CLAIMS AND DEFENDANTS

v.
COUNTY OF STANISLAUS, et al.,

(ECF No. 5)

Defendants.

OBJECTIONS DUE WITHIN THIRTY
DAYS

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Plaintiff Juan S. Bulgara, Jr. is a pretrial detainee proceeding pro se and in forma pauperis

18 in this action pursuant to 42 U.S.C. § 1983. On June 15, 2018, Plaintiff’s complaint was
19 screened and the Court found he had failed to state a cognizable claim. (ECF No. 4.) Plaintiff
20 was granted leave to file an amended complaint. (Id.) Currently before the Court is Plaintiff’s
21 first amended complaint filed on July 13, 2018. (ECF No. 5.)
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I.

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SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief against a

25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
26 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
27 legally “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or
28 that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

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1 1915(e)(2)(B).
A complaint must contain “a short and plain statement of the claim showing that the

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3 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
4 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
5 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate
7 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v.
8 Williams, 297 F.3d 930, 934 (9th Cir. 2002).
Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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10 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d
11 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be
12 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer
13 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss
14 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant
15 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s
16 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572
17 F.3d at 969.
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II.

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FIRST AMENDED COMPLAINT ALLEGATIONS
Plaintiff is a pretrial detainee in the custody of the Lerdo Pre-Trial Facility in Bakersfield,

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21 California. On June 7, 2016, at approximately 10:00 p.m., Plaintiff was a passenger in a vehicle
22 that was the subject of an undercover sting operation by the Stanislaus County Sheriff’s Office,
23 Modesto Police Department, and Turlock Police Department. (First Am. Compl. (“FAC”) 5,1
24 ECF No. 5.) The vehicle was parked in a parking lot on W. Main Street in Turlock, California.
25 (Id.)
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All references to pagination of specific documents pertain to those as indicated on the upper right corners via the
CM/ECF electronic court docketing system.
In his original complaint, Plaintiff alleged that he was in a vehicle driven by Omar Villagomez. (Compl. 6, ECF No.

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After interacting with an undercover officer, an unmarked truck driven by two

2 unidentified individuals (Doe 1 and Doe 2) pulling up at high speed. (Id.) The vehicle Plaintiff
3 was in attempted to exit the parking lot and and, after driving approximately 10 feet, the truck
4 collided with them. (Id.) Doe 1 and Doe 2 exited the truck, and without identifying themselves
5 as officers, fired two high caliber assault rifles into the vehicle approximately 20 to 30 times.
6 (Id.) The driver of the vehicle was shot and killed. (Id.) Plaintiff raised his hands in the air,
7 informing the officers that the driver was injured and needed an ambulance. (Id.)
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After Doe 1 and Doe 2 stopped shooting, Doe 3 fired a “lead shot” bean bag into the

9 passenger side window. (FAC 5-6.) The bean bag casing ripped causing the lead shot to hit
10 Plaintiff causing injury. (FAC 6.)
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Plaintiff brings this action against the County of Stanislaus; Stanislaus County Sheriff’s

12 Department; Modesto Police Department; Turlock Police Department; and Does 1, 2, and 3
13 alleging excessive force in violation of the Fourth Amendment and state law claims of assault
14 and battery and negligence. Plaintiff is seeking monetary damages.
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III.

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DISCUSSION

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Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or

18 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d
19 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);
20 Jones, 297 F.3d at 934. To state a claim under section 1983, a plaintiff is required to show that
21 (1) each defendant acted under color of state law and (2) each defendant deprived him of rights
22 secured by the Constitution or federal law. Long, 442 F.3d at 1185. This requires the plaintiff to
23 demonstrate that each defendant personally participated in the deprivation of his rights. Iqbal,
24 556 U.S. at 677; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010);
25 Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. In other
26 words, to state a claim for relief under section 1983, Plaintiff must link each named defendant
27 with some affirmative act or omission that demonstrates a violation of his federal rights.
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A.

Excessive Force in Violation of the Fourth Amendment

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“A claim that law-enforcement officers used excessive force to effect a seizure is

3 governed by the Fourth Amendment’s ‘reasonableness’ standard.” Plumhoff v. Rickard, 134 S.
4 Ct. 2012, 2020 (2014); Price v. Sery, 513 F.3d 962, 967 (9th Cir. 2008). The reasonableness
5 inquiry in excessive force cases is whether the officer’s actions were “ ‘objectively reasonable’
6 in light of the facts and circumstances confronting” him. Smith v. City of Hemet, 394 F.3d 689,
7 701 (9th Cir. 2005). “The ‘reasonableness’ of a particular use of force must be judged from the
8 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
9 Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010) (quoting Graham v. Conner, 490 U.S.
10 386, 396 (1989)). “The calculus of reasonableness must embody allowance for the fact that
11 police officers are often forced to make split-second judgments—in circumstances that are tense,
12 uncertain, and rapidly evolving—about the amount of force that is necessary in a particular
13 situation.” Graham, 490 U.S. at 397.
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The “relevant factors in the Fourth Amendment reasonableness inquiry include ‘[1] the

15 severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of
16 the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest
17 by flight.’ ” Smith, 394 F.3d at 701 (quoting Graham, 490 U.S. at 396). The Supreme Court has
18 held that where an officer has probable cause to believe that a suspect poses a threat of serious
19 physical harm, either to the officer or to others, it is not unconstitutionally unreasonable to use
20 deadly force. Tennessee v. Garner, 471 U.S. 1, 12 (1985).
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Plaintiff alleges that Does 1 and 2 used excessive force by firing into the vehicle after it

22 collided with their vehicle while attempting to flee the area. First, as Plaintiff was previously
23 advised, Fourth Amendment rights are personally rights that cannot be asserted vicariously.
24 Plumhoff, 134 S. Ct. at 2022. Stopping the driver of a vehicle does not constitute a seizure of a
25 passenger. Troupe v. Sarasota Cty., Fla., 419 F.3d 1160, 1167 (11th Cir. 2005). “[A] Fourth
26 Amendment seizure does not occur whenever there is a governmentally caused termination of an
27 individual’s freedom of movement (the innocent passerby), nor even whenever there is a
28 governmentally caused and governmentally desired termination of an individual’s freedom of

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1 movement (the fleeing felon), but only when there is a governmental termination of freedom of
2 movement through means intentionally applied.” Brower v. Cty. of Inyo, 489 U.S. 593, 596–97
3 (1989). “It is intervention directed at a specific individual that furnishes the basis for a Fourth
4 Amendment claim.” Troupe, 419 F.3d at 1166–67 (11th Cir. 2005) (quoting Landol–Rivera v.
5 Cruz Cosme, 906 F.2d 791, 796 (1st Cir.1990)). The fact that the officers intended to restrain the
6 driver of the vehicle does not provide the basis for a Fourth Amendment violation for the
7 passengers in the vehicle. Medeiros v. O’Connell, 150 F.3d 164, 169 (2d Cir. 1998). Therefore,
8 Plaintiff cannot base his Fourth Amendment claim on the force used against the decedent who
9 was driving the vehicle that collided with the police car while attempting to evade arrest.
Additionally, the Court notes that Plaintiff does not allege that he suffered any physical

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11 injury due to Does 1 and 2 firing into the vehicle. His injuries were incurred due to the bean bag
12 that was fired into the vehicle after Does 1 and 2 had stopped shooting. The constitution does
13 not protect against de minimus injury.2 Jackson v. City of New York, 939 F.Supp.2d 235, 253
14 (E.D. N.Y. 2013); Bishop v. San Quentin State Prison Work Place, No. C 01-3411 SI (PR), 2002
15 WL 1767416, at *4 (N.D. Cal. July 29, 2002). A claim that force was used which causes no
16 discernable injury almost certainly fails to state an excessive force claim. Standing Rock v.
17 Cascade Cty. Reg’l Prison, No. CV 13-36-GF-DWM-RKS, 2013 WL 3070914, at *3 (D. Mont.
18 June 17, 2013).
Here, Plaintiff alleges that Does 1 and 2 fired into the vehicle and the shots fired killed

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20 the driver. The allegations reasonably lead the Court to infer that the shots were fired at the
21 driver of the vehicle and, since Plaintiff suffered no injury due to the use of force by Does 1 and
22 2, not at Plaintiff. The allegations in the complaint are insufficient to state a claim for the use of
23 excessive force against Plaintiff by Does 1 and 2. For these reasons, the Court finds that Plaintiff
24 has failed to state an excessive force claim against Does 1 and 2.
At the pleading stage, the allegation that while Plaintiff was compliant with his hands

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26 raised in the air, Doe 3 fired a bean bag into the passenger side of the vehicle causing him injury
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The Court recognizes that the Ninth Circuit has suggested it does not require that the injury be more than de
minimus but considers whether the force used was more than de minimus in determining if an inmate states an
excessive force claim. Oliver v. Keller, 289 F.3d 623, 628 (9th Cir.2002).

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1 is sufficient to state an excessive force claim.
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B.

Monell Claims

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Plaintiff alleges that the County of Stanislaus had duty to supervise manage and control

4 the use of force by its officers and the additional agencies that participated in the incident.
5 Plaintiff contends that the County of Stanislaus has a number of policies and procedures the
6 violated the Fourth Amendment.
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As Plaintiff was previously advised, under section 1983 a local government unit may not

8 be held responsible for the acts of its employees under a respondeat superior theory of liability.
9 Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Rather, a local government
10 unit may only be held liable if it inflicts the injury complained of through a policy or custom.
11 Waggy v. Spokane County Washington, 594 F.3d 707, 713 (9th Cir. 2010).
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To state a claim, “[i]t is not sufficient for a plaintiff to identify a custom or policy,

13 attributable to the municipality, that caused his injury. A plaintiff must also demonstrate that the
14 custom or policy was adhered to with ‘deliberate indifference’ ” to his constitutional rights.
15 Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016), cert. denied sub nom. Los
16 Angeles Cty., Cal. v. Castro, 137 S. Ct. 831 (2017). The deliberate indifference standard is
17 satisfied where a plaintiff alleges facts available to the municipality’s policymakers that “put
18 them on actual or constructive notice that the particular omission is substantially certain to result
19 in the violation of the constitutional rights of their citizens.” Castro, 833 F.3d at 1076.
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Here, Plaintiff has merely stated that certain policies exist without alleging any facts by

21 which the Court can reasonably infer that such policies do exist or that the municipality’s policy
22 makers were on actual or constructive notice of the policies alleged. Plaintiff’s conclusory
23 allegation that a custom or policy exists is not entitled be accepted as true. Iqbal, 556 U.S. at
24 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory
25 statements, do not suffice” to state a cognizable claim. Id. (quoting Twombly, 550 U.S. at 555).
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Plaintiff’s complaint sets forth a single incident of the use of force during a sting

27 operation in which the driver of the vehicle attempted to flee and collided with the officers’
28 vehicle. “Liability for improper custom may not be predicated on isolated or sporadic incidents;

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1 it must be founded upon practices of sufficient duration, frequency and consistency that the
2 conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911,
3 918 (9th Cir. 1996). Plaintiff’s complaint is devoid of any factual allegations by which the Court
4 could reasonably infer that a custom or policy of excessive force exists or that the entities ratified
5 the actions of the officers. Iqbal, 556 U.S. at 678-79.
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Plaintiff has failed to state a cognizable claim against the County of Stanislaus, Modesto

7 Police Department, Turlock Police Department, or Stanislaus County Sheriff’s Office.
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C.

State Law Claims

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Plaintiff also alleges claims of assault and battery, and negligence against Does 1, 2, and

10 3. Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original
11 jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the
12 action within such original jurisdiction that they form part of the same case or controversy under
13 Article III. . . .” “[O]nce judicial power exists under § 1367(a), retention of supplemental
14 jurisdiction over state law claims under 1367(c) is discretionary.” Acri v. Varian Assoc., Inc.,
15 114 F.3d 999, 1000 (9th Cir. 1997). The Court has supplemental jurisdiction over the state law
16 claims alleged against Does 1 and 2 as they form part of the same case and controversy.
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The California Tort Claims Act1 requires that a tort claim against a public entity or its

18 employees be presented to the California Victim Compensation and Government Claims Board
19 no more than six months after the cause of action accrues. Cal. Gov’t Code §§ 905.2, 910,
20 911.2, 945.4, 950-950.2. Presentation of a written claim, and action on or rejection of the claim
21 are conditions precedent to suit. State v. Superior Court of Kings County (Bodde), 90 P.3d 116,
22 119 (Cal. 2004); Shirk v. Vista Unified School District, 42 Cal.4th 201, 209 (2007). To state a
23 tort claim against a public employee, a plaintiff must allege compliance with the California Tort
24 Claims Act. Cal. Gov’t Code § 950.6; Bodde, 90 P.3d at 123. “[F]ailure to allege facts
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12The Court recognizes that in City of Stockton v. Superior Court, 42 Cal.4th 730, 742 (Cal. 2007), California’s Supreme Court

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adopted the practice of referring to California’s Tort Claims Act as the Government Claims Act. However, given that the federal
government has also enacted a Tort Claims Act, 28 U.S.C. § 2671, the Court here refers to the Government Claims Act as the
California Tort Claims Act in an effort to avoid confusion.

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1 demonstrating or excusing compliance with the requirement subjects a compliant to general
2 demurrer for failure to state a cause of action.” Bodde, 90 P.3d at 120.
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Here, Plaintiff has alleged that he filed claims with the County of Stanislaus, City of

4 Modesto, and City of Turlock which were rejected. (FAC 9.)
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1.

Assault and Battery

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Under California law, “[a]n assault is an unlawful attempt, coupled with a present ability,

7 to commit a violent injury on the person of another” and “[a] battery is any willful and unlawful
8 use of force or violence upon the person of another.” Cal. Penal Code § 240, 242; 5 B. E.
9 Witkin, Summary of California Law, Torts § 346 (9th ed. 1988).
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For a civil battery claim in California, Plaintiff must prove “(1) defendant intentionally

11 performed an act that resulted in a harmful or offensive contact with the plaintiff’s person; (2)
12 plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury,
13 damage, loss or harm to plaintiff.” Brown v. Ransweiler, 171 Cal.App.4th 516, 526 (2009).
14 Where the defendant is a peace officer, the plaintiff must also prove that the use of force was
15 unreasonable. Ransweiler, 171 Cal.App.4th at 526.
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For an assault claim under California law, a plaintiff must show that (1) the defendant

17 threatened to touch him in a harmful or offensive manner; (2) it reasonably appeared to the
18 plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to
19 the conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial
20 factor in causing the harm. Tekle v. U.S., 511 F.3d 839, 855 (9th Cir. 2007) (citation omitted).
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While Plaintiff alleges that Does 1 and 2 fired into the vehicle in which he was a

22 passenger, he does not allege a harmful or offensive contact with his person. Based on the
23 allegations in the complaint, while the driver of the vehicle was struck and killed, Plaintiff was
24 not injured by the shooting. Therefore, Plaintiff has failed to state a battery claim against Does 1
25 and 2. However, the allegations that Does 1 and 2 fired shots into the vehicle is sufficient to
26 state a claim for assault.
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Plaintiff does allege that Doe 3 fired a bean bag into the passenger side of the vehicle and

28 that he was struck by the contents when the bag ruptured causing him injury. This is sufficient at

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1 the pleading stage to state a claim for assault and battery.
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Negligence

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A public employee is liable for injury “proximately caused by his negligent or wrongful

4 act or omission.” Cal. Gov’t Code § 844.6(d). Under California law “[t]he elements of a
5 negligence cause of action are: (1) a legal duty to use due care; (2) a breach of that duty; (3) the
6 breach was the proximate or legal cause of the resulting injury; and (4) actual loss or damage
7 resulting from the breach of the duty of care.” Ransweiler, 171 Cal.App.4th at 534.
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Plaintiff alleges that Does 1, 2, and 3 had a duty to refrain from causing him injury due to

9 their gross negligence. Plaintiff contends that Does 1 and 2 were negligent by firing 20 to 30
10 shots into a vehicle in which he was a passenger, and Doe 3 was negligent by firing a bean bag
11 containing lead BBs into the glass window of the vehicle causing him injury. At the pleading
12 stage, the allegations in the complaint are sufficient to state a claim for negligence against Does
13 1, 2, and 3.
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3.

Vicarious Liability

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Plaintiff alleges that Does 1, 2, and 3 are agents of the County of Stanislaus. “Under the

16 doctrine of respondeat superior, an employer may be held vicariously liable for torts committed
17 by an employee within the scope of employment.” Mary M. v. City of Los Angeles, 54 Cal.3d
18 202, 208 (1991); accord Robinson v. Solano Cty., 278 F.3d 1007, 1016 (9th Cir. 2002).
19 California Government Code section 815.2 provides that, unless the employee is immune from
20 liability, public entities are “liable for injury proximately caused by an act or omission of an
21 employee of the public entity within the scope of his employment if the act or omission would . .
22 . have given rise to a cause of action against that employee or his personal representative.” Cal.
23 Gov’t Code § 815.2(a). “[A] governmental entity can be held vicariously liable when a police
24 officer acting in the course and scope of employment uses excessive force or engages in
25 assaultive conduct.” Mary M., 54 Cal.3d at 215.
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Plaintiff has stated a claim that the County of Stanislaus is vicariously liable for the acts

27 of Does 1, 2, and 3. However, the first amended complaint is devoid of any factual allegations to
28 impose liability on any other entity defendant.

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IV.

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CONCLUSION AND RECOMMENDATION
Plaintiff’s first amended complaint states a claim against Doe 3 for excessive force in

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4 violation of the Fourth Amendment and assault and battery and negligence under California law;
5 Does 1 and 2 for assault and negligence under California law; and the County of Stanislaus for
6 vicarious liability on the state law claims.3 However, Plaintiff has failed to state any other
7 cognizable claims. Plaintiff was previously notified of the applicable legal standards and the
8 deficiencies in his pleading, and despite guidance from the Court, Plaintiff’s first amended
9 complaint is largely identical to the original complaint. Based upon the allegations in Plaintiff’s
10 original and first amended complaint, the Court is persuaded that Plaintiff is unable to allege any
11 additional facts that would support a claim for excessive force in violation of the Fourth
12 Amendment or his state law claims, and further amendment would be futile. See Hartmann v.
13 CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave to amend when
14 amendment would be futile.”) Based on the nature of the deficiencies at issue, the Court finds
15 that further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th. Cir.
16 2000); Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987).
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Accordingly, IT IS HEREBY RECOMMENDED that:

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1.

This action proceed against Doe 3 for excessive force in violation of the Fourth

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Amendment and assault and battery and negligence under California law; Does 1

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and 2 for assault and negligence under California law; and the County of

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Stanislaus for vicarious liability on the state law claims;

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2.

All remaining claims be dismissed without leave to amend; and

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3.

Defendants Modesto Police Department, Turlock Police Department, and

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Stanislaus County Sheriff’s Office be dismissed from this action based on

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Plaintiff’s failure to state a cognizable claim.

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Plaintiff has named unidentified or “Doe Defendants.” “As a general rule, the use of ‘John Doe’ to identify a
defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Plaintiff is advised that John
Doe or Jane Doe defendants (i.e., unknown defendants) cannot be served by the United States Marshal until Plaintiff
has identified them as actual individuals and amended his complaint to substitute names for John Doe or Jane Doe.
Plaintiff will be required to amend his complaint to identify the Doe defendants so they can be served in this action.
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This findings and recommendations is submitted to the district judge assigned to this

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2 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30)
3 days of service of this recommendation, Plaintiff may file written objections to this findings and
4 recommendations with the court.

Such a document should be captioned “Objections to

5 Magistrate Judge’s Findings and Recommendations.”

The district judge will review the

6 magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C).
7 Plaintiff is advised that failure to file objections within the specified time may result in the
8 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing
9 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.

12 Dated:

July 30, 2018
UNITED STATES MAGISTRATE JUDGE

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