Blandino v. Sacramento Sheriff's Department et al

Filing 8

ORDER signed by Magistrate Judge Dale A. Drozd on 3/14/2012 ORDERING that plaintiff's 7 motion to proceed IFP is GRANTED; plaintiff's complaint is DISMISSED; plaintiff has 30 days to file an amended complaint; the clerk to send plaintiff a form for filing a civil rights action; and plaintiff's 3 motion for appointment of counsel is DENIED. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERTO X. BLANDINO,

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Plaintiff,

No. CIV S-11-2860 DAD P

vs.
SACRAMENTO SHERIFF’S
DEPARTMENT et al.,

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Defendants.
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ORDER
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Plaintiff is a former Immigration Customs and Enforcement (“ICE”) detainee who

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was housed at the Sacramento Main County Jail. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. This

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proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 302

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and 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted an in forma pauperis application that makes the showing

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required by 28 U.S.C. § 1915(a)(1). Accordingly, plaintiff will be granted leave to proceed in

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forma pauperis.

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SCREENING REQUIREMENT
The court must dismiss a complaint or portion thereof if the plaintiff has raised
claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be
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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915(e)(2)(B)(I)-(iii).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and

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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

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(1957)). However, in order to survive dismissal for failure to state a claim a complaint must

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contain more than “a formulaic recitation of the elements of a cause of action;” it must contain

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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

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550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See
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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the

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actions of their employees under a theory of respondeat superior and, therefore, when a named

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defendant holds a supervisorial position, the causal link between him and the claimed

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constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862

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(9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory

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allegations concerning the involvement of official personnel in civil rights violations are not

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sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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PLAINTIFF’S COMPLAINT
In the present case, plaintiff has identified Sacramento County Main Jail Deputies

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Wright, Gomes, Guest, and Gutierrez as the defendants. In his complaint, plaintiff alleges that

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defendants Wright, Gomes, Guest, and Gutierrez forced him to the ground and mistreated him.

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As a result of their mistreatment, plaintiff alleges that he suffered emotional distress and mental

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anguish. He also alleges that the defendants exacerbated some of his pre-existing injuries. In

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terms of relief, plaintiff requests monetary damages. (Compl. at 5.)

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DISCUSSION
The allegations in plaintiff’s complaint are so vague and conclusory that the court

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is unable to determine whether the current action is frivolous or fails to state a claim for relief.

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The complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2).

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Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to

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the defendants and must allege facts that support the elements of the claim plainly and succinctly.

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Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege
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with at least some degree of particularity overt acts which defendants engaged in that support his

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claims. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P.

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8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an

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amended complaint.

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If plaintiff chooses to file an amended complaint, he must allege facts

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demonstrating how the conditions complained of resulted in a deprivation of his federal

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constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The

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amended complaint must allege in specific terms how each named defendant was involved in the

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deprivation of plaintiff’s rights. There can be no liability under 42 U.S.C. § 1983 unless there is

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some affirmative link or connection between a defendant’s actions and the claimed deprivation.

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Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of

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official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982).

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Insofar as plaintiff is attempting to assert an excessive use of force claim against

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the defendants, he is advised that if he elects to proceed with this action by filing an amended

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complaint, he will need to elaborate on his factual allegations with respect to the involvement of

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each defendant he names based on the legal standard that governs his claim. The legal standard

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that governs his claim will depend on whether or not plaintiff had been charged and convicted of

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a crime at the time the alleged excessive use of force took place.

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If plaintiff had neither been charged nor convicted of a crime at the time the

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alleged excessive use of force took place, he must bring his claim under the Fourteenth

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Amendment, and the court will analyze it based on the reasonableness standard. Gibson v.

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County of Washoe, 290 F.3d 1175, 1185-86 (9th Cir. 2002). Under that standard, the courts

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balance the reasonableness of an officers’ actions given the circumstances. The Ninth Circuit has

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articulated four factors that courts should consider in resolving a due process claim alleging
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excessive force. The factors are (1) the need for the application of force, (2) the relationship

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between the need and the amount of force that was used, (3) the extent of the injury inflicted, and

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(4) whether force was applied in good faith effort to maintain and restore discipline. See White

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v. Roper, 901 F.2d 1501, 1507 (9th Cir. 1990).

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If, on the other hand, plaintiff had been charged and convicted of a crime at the

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time the alleged excessive use of force took place, plaintiff must bring his claim under the Eighth

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Amendment, and the court will analyze it based on the cruel and unusual punishment standard.

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Under that standard, plaintiff must show that objectively he suffered a “sufficiently serious”

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deprivation. Farmer, 511 U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). The

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plaintiff must also show that subjectively each defendant had a culpable state of mind in allowing

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or causing the plaintiff’s deprivation to occur. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

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“[W]henever prison officials stand accused of using excessive physical force in violation of the

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Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley, i.e.,

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whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously

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and sadistically to cause harm.” Hudson, 503 U.S. at 6-7. A plaintiff is not required to show a

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“significant injury” to establish that he suffered a sufficiently serious constitutional deprivation.

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Hudson, 503 U.S. at 9-10.

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Plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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OTHER MATTERS

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Also pending before the court is plaintiff’s motion for appointment of counsel. In

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certain exceptional circumstances, the district court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). The test for exceptional circumstances requires the

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court to evaluate the plaintiff’s likelihood of success on the merits and the ability of the plaintiff

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to articulate his claims pro se in light of the complexity of the legal issues involved. See Wilborn

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v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th

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Cir. 1983). In the present case, the court does not find the required exceptional circumstances.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 7) is granted.

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2. Plaintiff’s complaint is dismissed.

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3. Plaintiff is granted thirty days from the date of service of this order to file an

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amended complaint that complies with the requirements of the Civil Rights Act, the Federal

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Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the

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docket number assigned to this case and must be labeled “Amended Complaint”; failure to file an

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amended complaint in accordance with this order will result in a recommendation that this action

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be dismissed without prejudice.

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4. The Clerk of the Court is directed to send plaintiff the court’s form for filing a
civil rights action.

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5. Plaintiff’s motion for appointment of counsel (Doc. No. 3) is denied.
DATED: March 14, 2012.

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DAD:9
blan2860.14a

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