Barker v. Washburn et al

Filing 11

SCREENING ORDER Granting Plaintiff Leave to File an Amended Complaint, signed by Magistrate Judge Stanley A. Boone on 11/19/2021. Thirty-Day Deadline. (Attachments: # 1 Complaint Form)(Maldonado, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:21-cv-01169-NONE-SAB

ANTHONY BARKER,

SCREENING ORDER GRANTING
PLAINTIFF LEAVE TO FILE AN
AMENDED COMPLAINT

Plaintiff,
v.

(ECF No. 1)

WASHBURN, et al.,
Defendants.

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Anthony Barker (“Plaintiff”), a detainee at the Kings County Jail proceeding pro se and in

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forma pauperis in this matter, initiated this civil rights action on August 2, 2021. (ECF No. 1.)

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Plaintiff alleges claims pursuant to 28 U.S.C. § 1983 against Defendants Washburn and Josh

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Chavez (“Defendants”). The complaint is now before this Court for screening.

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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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[]

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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A complaint must contain “a short and plain statement of the claim showing that the pleader

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally

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

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2002).

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In reviewing a pro se complaint, the Court is to liberally construe the pleadings and accept

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as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94

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(2007); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (quoting Hebbe v. Pliler,

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627 F.3d 338, 342 (9th Cir. 2010)) (“where the petitioner is pro se, particularly in civil rights cases,

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[courts should] construe the pleadings liberally and . . . afford the petitioner the benefit of any

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doubt.”); United States v. Qazi, 975 F.3d 989, 992–93 (9th Cir. 2020) (“It is an entrenched principle

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that pro se filings however inartfully pleaded are held to less stringent standards than formal

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pleadings drafted by lawyers.”) (citations and internal quotations omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient

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factual detail to allow the Court to reasonably infer that each named defendant is liable for the

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misconduct alleged. Iqbal, 556 U.S. at 678–79; Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and

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“facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of the
sua sponte screening requirement under 28 U.S.C. § 1915.
Plaintiff alleges he was apprehended and arrested by officers of the Sherriff’s Department
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of Lemoore on May 11, 2021, for unspecified reasons. (ECF No. 1 at 3.) At the time of arrest,

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Plaintiff was in a “small cramped place” and requested assistance from the officers to get out of the

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space.

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unidentified Lemoore Sherriff’s Department officers grabbed Plaintiff, pulled him down from the

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“cramped place” he was in, and threw him to the floor. (Id. at 3–4.) After that, Defendant Senior

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Officer Washburn, a K9 handler for the Lemoore Police Department, released his dog on Plaintiff

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while Chavez held Plaintiff down on the ground. (Id. at 2–4.) The dog locked onto Plaintiff’s leg,

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taking bites out of his calf and shin and tearing into Plaintiff’s tendons. (Id. at 2–3.) Plaintiff

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alleges he was already detained/apprehended at the time the dog was unleashed on him, but Chavez

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did not tell Washburn to call off the dog. (Id. at 3–4.) Instead, Chavez allegedly pushed his knee

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into Plaintiff’s back and neck area, making it hard to breath, and “almost [broke Plaintiff’s] arm.”

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(Id. at 4.)

(Id.)

Instead, Defendant Chavez, a Hanford Police Department Officer, and other

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As a result, Plaintiff claims he continues to suffer sharp pains in his arm throughout the day

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and his bitten leg frequently goes numb and goes to sleep, making it unbearable at times to walk

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and get through the day. (Id. at 3.) Plaintiff claims Defendants Chavez and Washburn used

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excessive force against him during the arrest, in violation of the Eighth and Ninth Amendments,

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and seeks damages for his injuries. (Id. at 3–4, 6.)

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III.

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DISCUSSION

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A.

Linking Requirement

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

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other federal rights by persons acting under color of state law. Long v. Cnty. of Los Angeles, 442

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F.3d 1178, 1185 (9th Cir. 2006); Jones, 297 F.3d at 934. To state a claim under section 1983, a

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plaintiff is required to show that (1) each defendant acted under color of state law and (2) each

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defendant deprived him of rights secured by the Constitution or federal law. Benavidez v. Cnty. of

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San Diego, 993 F.3d 1134, 1144 (9th Cir. 2021) (citing Long, 442 F.3d at 1185; West v. Atkins,

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487 U.S. 42, 48 (1988)). This requires the plaintiff to demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones, 297 F.3d at 934; see also Ewing v. City of
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Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). In other words, to state a claim for relief under §

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1983, Plaintiff must link each named defendant with some affirmative act or omission that

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demonstrates a violation of his federal rights.

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B.

Excessive Force

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

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by the Fourth Amendment’s ‘reasonableness’ standard.” Plumhoff v. Rickard, 572 U.S. 765, 774

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(2014); Graham v. Connor, 490 U.S. 386, 395 (1989) (holding “that all claims that law enforcement

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officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop,

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or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its

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‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.”) (emphasis in

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original); see also Price v. Sery, 513 F.3d 962, 967 (9th Cir. 2008).

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Because reasonableness “is not capable of precise definition or mechanical application,” the

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inquiry requires “attention to the facts and circumstances of each particular case.” Graham, 490

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U.S. at 396. Reasonableness “must be judged from the perspective of a reasonable officer on the

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scene, rather than with the 20/20 vision of hindsight.” Id. “Not every push or shove, even if it may

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later seem unnecessary in the peace of a judge’s chambers,” violates the Fourth Amendment.

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Graham, 490 U.S. at 396 (citing Johnson v. Glick, 481 F. 2d 1028, 1033 (2nd Cir. 1973)). Rather,

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“[t]he calculus of reasonableness must embody allowance for the fact that police officers are often

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forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly

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evolving — about the amount of force that is necessary in a particular situation.” Graham, 490

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U.S. at 396–97; see also Ames v. King County, 846 F.3d 340, 348 (9th Cir. 2017). Determination

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of reasonableness therefore requires consideration of the totality of the circumstances. Mattos v.

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Agarano, 661 F.3d 433 (9th Cir. 2011).

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The Ninth Circuit has articulated a three-step analysis to evaluate excessive force claims

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under the framework set forth by the Supreme Court in Graham v. Connor. See Thompson v. Rahr,

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885 F.3d 582, 586 (9th Cir. 2018) (citing Espinosa v. City & Cty. of S.F., 598 F.3d 528, 537 (9th

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Cir. 2010)). First, the Court must assess “the severity of the intrusion” “by considering ‘the type

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and amount of force inflicted.’” Id. Second, the Court must evaluate the government’s interest “by
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assessing (1) the severity of the crime; (2) whether the suspect posed an immediate threat to the

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officers’ or public’s safety; and (3) whether the suspect was resisting arrest or attempting to

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escape.” Espinosa, 598 F.3d at 537 (quoting Graham, 490 U.S. at 396). Third, the Court must

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balance “the gravity of the intrusion on the individual against the government’s need for that

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intrusion . . . to determine whether the force used was ‘greater than is reasonable under the

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circumstances.’” Id. (citing Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002)).
Plaintiff’s Eighth Amendment Claim

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C.

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The Eighth Amendment proscribes a freedom from cruel and unusual punishment. U.S.

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Const. amend. VIII. The prohibition of cruel and unusual punishment applies only after conviction

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and sentencing. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Thus, a claim of

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excessive force in the context of an arrest, as here, implicates the Fourth Amendment right to be

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free from “unreasonable . . . seizures,” not the Eighth Amendment. U.S. Const. amend. IV; see

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Graham, 490 U.S. at 394; see also Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir.

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2002) (“[b]ecause [the plaintiff] had not been convicted of a crime, but had only been arrested, his

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rights derive from the due process clause rather than the Eighth Amendment’s protection against

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cruel and unusual punishment.”), overruled on other grounds by Castro v. Cnty. of Los Angeles,

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833 F.3d 1060 (9th Cir. 2016).

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Plaintiff asserts an excessive force claim solely under the Eighth Amendment. Based on

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the aforementioned authorities, Plaintiff fails to state a claim for excessive force under the Eighth

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Amendment.
Plaintiff’s Ninth Amendment Claim

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D.

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Plaintiff also alleges excessive force in violation of the Ninth Amendment. The Ninth

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Amendment provides that “the enumeration in the Constitution, of certain rights, shall not be

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construed to deny or disparage others retained by the people.” Strandberg v. City of Helena, 791

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F.2d 744, 748 (9th Cir. 1986). While “[i]t has been argued that the ninth amendment protects rights

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not enunciated in the first eight amendments[,] . . . the ninth amendment has never been recognized

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as independently securing any constitutional right, for purposes of pursuing a civil rights claim.”

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Id. (internal quotations and citations omitted). Thus, “[c]auses of action based on the Ninth
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Amendment fail to state a legal claim.” Williams v. Fresno Cty. Dep’t of Soc. Servs., No. 1:21-cv-

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00596-DAD-SAB, 2021 WL 3033578, at *6 (E.D. Cal. Jul. 19, 2021) (citing Ralls v. Facebook,

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221 F. Supp. 3d 1237, 1245 (W.D. Wash. 2016)).

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Accordingly, Plaintiff fails to state a claim pursuant to the Ninth Amendment.

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IV.

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CONCLUSION AND ORDER

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For the foregoing reasons, Plaintiff fails to state a cognizable claim and shall be granted

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leave to file an amended complaint to cure the deficiencies identified in this order faith. Lopez,

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203 F.3d at 1127. Plaintiff’s first amended complaint should be brief, Fed. R. Civ. P. 8(a), but it

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must also state what each named defendant did that led to the deprivation of Plaintiff’s

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constitutional rights, Iqbal, 556 U.S. at 678–79.

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allegations must be [sufficient] to raise a right to relief above the speculative level . . . .” Twombly,

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550 U.S. at 555 (citations omitted).

Although accepted as true, the “[f]actual

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Further, Plaintiff may not change the nature of this suit by adding new, unrelated claims in

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his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”

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complaints).

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey v. Maricopa Cnty., 693 F.3d 896, 927. Absent court approval, Plaintiff’s first amended

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complaint must be “complete in itself without reference to the prior or superseded pleading.” E.D.

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Cal. L.R. 220.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

The Clerk of the Court shall send Plaintiff a civil rights complaint form;

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2.

Within thirty (30) days from the date of service of this order, Plaintiff shall file a

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first amended complaint curing the deficiencies identified by the Court in this order;

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3.

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The first amended complaint, including attachments, shall not exceed twenty-five
(25) pages in length; and

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4.

If Plaintiff fails to file a first amended complaint in compliance with this order, the

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Court will recommend to a District Judge that this action be dismissed consistent

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with the reasons stated in this order.

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IT IS SO ORDERED.
Dated:

November 19, 2021
UNITED STATES MAGISTRATE JUDGE

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