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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 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. 16 17 18 19 20 Anthony Barker (“Plaintiff”), a detainee at the Kings County Jail proceeding pro se and in 21 forma pauperis in this matter, initiated this civil rights action on August 2, 2021. (ECF No. 1.) 22 Plaintiff alleges claims pursuant to 28 U.S.C. § 1983 against Defendants Washburn and Josh 23 Chavez (“Defendants”). The complaint is now before this Court for screening. 24 I. 25 SCREENING REQUIREMENT 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 1 1 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] 2 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 3 A complaint must contain “a short and plain statement of the claim showing that the pleader 4 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 5 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 6 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 7 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally 8 participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 9 2002). 10 In reviewing a pro se complaint, the Court is to liberally construe the pleadings and accept 11 as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 12 (2007); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (quoting Hebbe v. Pliler, 13 627 F.3d 338, 342 (9th Cir. 2010)) (“where the petitioner is pro se, particularly in civil rights cases, 14 [courts should] construe the pleadings liberally and . . . afford the petitioner the benefit of any 15 doubt.”); United States v. Qazi, 975 F.3d 989, 992–93 (9th Cir. 2020) (“It is an entrenched principle 16 that pro se filings however inartfully pleaded are held to less stringent standards than formal 17 pleadings drafted by lawyers.”) (citations and internal quotations omitted). 18 To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient 19 factual detail to allow the Court to reasonably infer that each named defendant is liable for the 20 misconduct alleged. Iqbal, 556 U.S. at 678–79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 21 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 22 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the 23 plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 24 II. 25 COMPLAINT ALLEGATIONS 26 27 28 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 2 1 of Lemoore on May 11, 2021, for unspecified reasons. (ECF No. 1 at 3.) At the time of arrest, 2 Plaintiff was in a “small cramped place” and requested assistance from the officers to get out of the 3 space. 4 unidentified Lemoore Sherriff’s Department officers grabbed Plaintiff, pulled him down from the 5 “cramped place” he was in, and threw him to the floor. (Id. at 3–4.) After that, Defendant Senior 6 Officer Washburn, a K9 handler for the Lemoore Police Department, released his dog on Plaintiff 7 while Chavez held Plaintiff down on the ground. (Id. at 2–4.) The dog locked onto Plaintiff’s leg, 8 taking bites out of his calf and shin and tearing into Plaintiff’s tendons. (Id. at 2–3.) Plaintiff 9 alleges he was already detained/apprehended at the time the dog was unleashed on him, but Chavez 10 did not tell Washburn to call off the dog. (Id. at 3–4.) Instead, Chavez allegedly pushed his knee 11 into Plaintiff’s back and neck area, making it hard to breath, and “almost [broke Plaintiff’s] arm.” 12 (Id. at 4.) (Id.) Instead, Defendant Chavez, a Hanford Police Department Officer, and other 13 As a result, Plaintiff claims he continues to suffer sharp pains in his arm throughout the day 14 and his bitten leg frequently goes numb and goes to sleep, making it unbearable at times to walk 15 and get through the day. (Id. at 3.) Plaintiff claims Defendants Chavez and Washburn used 16 excessive force against him during the arrest, in violation of the Eighth and Ninth Amendments, 17 and seeks damages for his injuries. (Id. at 3–4, 6.) 18 III. 19 DISCUSSION 20 A. Linking Requirement 21 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or 22 other federal rights by persons acting under color of state law. Long v. Cnty. of Los Angeles, 442 23 F.3d 1178, 1185 (9th Cir. 2006); Jones, 297 F.3d at 934. To state a claim under section 1983, a 24 plaintiff is required to show that (1) each defendant acted under color of state law and (2) each 25 defendant deprived him of rights secured by the Constitution or federal law. Benavidez v. Cnty. of 26 San Diego, 993 F.3d 1134, 1144 (9th Cir. 2021) (citing Long, 442 F.3d at 1185; West v. Atkins, 27 487 U.S. 42, 48 (1988)). This requires the plaintiff to demonstrate that each defendant personally 28 participated in the deprivation of his rights. Jones, 297 F.3d at 934; see also Ewing v. City of 3 1 Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). In other words, to state a claim for relief under § 2 1983, Plaintiff must link each named defendant with some affirmative act or omission that 3 demonstrates a violation of his federal rights. 4 B. Excessive Force 5 “A claim that law-enforcement officers used excessive force to effect a seizure is governed 6 by the Fourth Amendment’s ‘reasonableness’ standard.” Plumhoff v. Rickard, 572 U.S. 765, 774 7 (2014); Graham v. Connor, 490 U.S. 386, 395 (1989) (holding “that all claims that law enforcement 8 officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, 9 or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its 10 ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.”) (emphasis in 11 original); see also Price v. Sery, 513 F.3d 962, 967 (9th Cir. 2008). 12 Because reasonableness “is not capable of precise definition or mechanical application,” the 13 inquiry requires “attention to the facts and circumstances of each particular case.” Graham, 490 14 U.S. at 396. Reasonableness “must be judged from the perspective of a reasonable officer on the 15 scene, rather than with the 20/20 vision of hindsight.” Id. “Not every push or shove, even if it may 16 later seem unnecessary in the peace of a judge’s chambers,” violates the Fourth Amendment. 17 Graham, 490 U.S. at 396 (citing Johnson v. Glick, 481 F. 2d 1028, 1033 (2nd Cir. 1973)). Rather, 18 “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often 19 forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly 20 evolving — about the amount of force that is necessary in a particular situation.” Graham, 490 21 U.S. at 396–97; see also Ames v. King County, 846 F.3d 340, 348 (9th Cir. 2017). Determination 22 of reasonableness therefore requires consideration of the totality of the circumstances. Mattos v. 23 Agarano, 661 F.3d 433 (9th Cir. 2011). 24 The Ninth Circuit has articulated a three-step analysis to evaluate excessive force claims 25 under the framework set forth by the Supreme Court in Graham v. Connor. See Thompson v. Rahr, 26 885 F.3d 582, 586 (9th Cir. 2018) (citing Espinosa v. City & Cty. of S.F., 598 F.3d 528, 537 (9th 27 Cir. 2010)). First, the Court must assess “the severity of the intrusion” “by considering ‘the type 28 and amount of force inflicted.’” Id. Second, the Court must evaluate the government’s interest “by 4 1 assessing (1) the severity of the crime; (2) whether the suspect posed an immediate threat to the 2 officers’ or public’s safety; and (3) whether the suspect was resisting arrest or attempting to 3 escape.” Espinosa, 598 F.3d at 537 (quoting Graham, 490 U.S. at 396). Third, the Court must 4 balance “the gravity of the intrusion on the individual against the government’s need for that 5 intrusion . . . to determine whether the force used was ‘greater than is reasonable under the 6 circumstances.’” Id. (citing Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002)). Plaintiff’s Eighth Amendment Claim 7 C. 8 The Eighth Amendment proscribes a freedom from cruel and unusual punishment. U.S. 9 Const. amend. VIII. The prohibition of cruel and unusual punishment applies only after conviction 10 and sentencing. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Thus, a claim of 11 excessive force in the context of an arrest, as here, implicates the Fourth Amendment right to be 12 free from “unreasonable . . . seizures,” not the Eighth Amendment. U.S. Const. amend. IV; see 13 Graham, 490 U.S. at 394; see also Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 14 2002) (“[b]ecause [the plaintiff] had not been convicted of a crime, but had only been arrested, his 15 rights derive from the due process clause rather than the Eighth Amendment’s protection against 16 cruel and unusual punishment.”), overruled on other grounds by Castro v. Cnty. of Los Angeles, 17 833 F.3d 1060 (9th Cir. 2016). 18 Plaintiff asserts an excessive force claim solely under the Eighth Amendment. Based on 19 the aforementioned authorities, Plaintiff fails to state a claim for excessive force under the Eighth 20 Amendment. Plaintiff’s Ninth Amendment Claim 21 D. 22 Plaintiff also alleges excessive force in violation of the Ninth Amendment. The Ninth 23 Amendment provides that “the enumeration in the Constitution, of certain rights, shall not be 24 construed to deny or disparage others retained by the people.” Strandberg v. City of Helena, 791 25 F.2d 744, 748 (9th Cir. 1986). While “[i]t has been argued that the ninth amendment protects rights 26 not enunciated in the first eight amendments[,] . . . the ninth amendment has never been recognized 27 as independently securing any constitutional right, for purposes of pursuing a civil rights claim.” 28 Id. (internal quotations and citations omitted). Thus, “[c]auses of action based on the Ninth 5 1 Amendment fail to state a legal claim.” Williams v. Fresno Cty. Dep’t of Soc. Servs., No. 1:21-cv- 2 00596-DAD-SAB, 2021 WL 3033578, at *6 (E.D. Cal. Jul. 19, 2021) (citing Ralls v. Facebook, 3 221 F. Supp. 3d 1237, 1245 (W.D. Wash. 2016)). 4 Accordingly, Plaintiff fails to state a claim pursuant to the Ninth Amendment. 5 IV. 6 CONCLUSION AND ORDER 7 For the foregoing reasons, Plaintiff fails to state a cognizable claim and shall be granted 8 leave to file an amended complaint to cure the deficiencies identified in this order faith. Lopez, 9 203 F.3d at 1127. Plaintiff’s first amended complaint should be brief, Fed. R. Civ. P. 8(a), but it 10 must also state what each named defendant did that led to the deprivation of Plaintiff’s 11 constitutional rights, Iqbal, 556 U.S. at 678–79. 12 allegations must be [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 13 550 U.S. at 555 (citations omitted). Although accepted as true, the “[f]actual 14 Further, Plaintiff may not change the nature of this suit by adding new, unrelated claims in 15 his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” 16 complaints). 17 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 18 Lacey v. Maricopa Cnty., 693 F.3d 896, 927. Absent court approval, Plaintiff’s first amended 19 complaint must be “complete in itself without reference to the prior or superseded pleading.” E.D. 20 Cal. L.R. 220. 21 Based on the foregoing, IT IS HEREBY ORDERED that: 22 1. The Clerk of the Court shall send Plaintiff a civil rights complaint form; 23 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 24 first amended complaint curing the deficiencies identified by the Court in this order; 25 3. 26 The first amended complaint, including attachments, shall not exceed twenty-five (25) pages in length; and 27 /// 28 /// 6 1 4. If Plaintiff fails to file a first amended complaint in compliance with this order, the 2 Court will recommend to a District Judge that this action be dismissed consistent 3 with the reasons stated in this order. 4 5 6 IT IS SO ORDERED. Dated: November 19, 2021 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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