Foy v. Vallejo Police Department

Filing 8

ORDER signed by Magistrate Judge Craig M. Kellison on 2/6/2012 ORDERING that plaintiff's compliant is DISMISSED with leave to amend; and plaintiff shall file an amended complaint within 30 days. (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ALFRED JAMES FOY,

12

Plaintiff,

13
14
15
16
17
18
19

No. CIV S-11-3262-CMK-P

vs.

ORDER

VALLEJO POLICE DEPARTMENT,
Defendant.
/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42
U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
The court is required to screen complaints brought by prisoners seeking relief

20

against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

21

§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

22

malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

23

from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

24

the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

25

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

26

This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,
1

1

84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied

2

if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

3

which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must

4

allege with at least some degree of particularity overt acts by specific defendants which support

5

the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

6

impossible for the court to conduct the screening required by law when the allegations are vague

7

and conclusory.

8
9

I. PLAINTIFF’S ALLEGATIONS
Plaintiff is claiming he was subjected to excessive force by the Vallejo Police

10

Department and the Fairfield Police Department in connection with an apparent arrest. He states

11

that after he followed the officers’ directions and submitted, he suffered a Tazer shot, beating by

12

several officers, and bites from a K-9 officer.

13
14

II. DISCUSSION
Plaintiff’s complaint suffers from two major defects. First, plaintiff fails to

15

identify the officers who were personally involved in the alleged used of excessive force. To

16

state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual connection or link

17

between the actions of the named defendants and the alleged deprivations. See Monell v. Dep’t

18

of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person

19

‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he

20

does an affirmative act, participates in another's affirmative acts, or omits to perform an act

21

which he is legally required to do that causes the deprivation of which complaint is made.”

22

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

23

concerning the involvement of official personnel in civil rights violations are not sufficient. See

24

Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth

25

specific facts as to each individual defendant’s causal role in the alleged constitutional

26

deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). If it is plaintiff’s intention
2

1

to proceed in this action against any of the individual officers involved in the incident, the names

2

of those officers and allegations as to how each officer was personally involved in the incident

3

are required.

4

Second, the only defendants named in the complaint are the two police

5

departments. However, plaintiff fails to allege sufficient facts to state a claim against these two

6

municipal police departments. Municipalities and other local government units are among those

7

“persons” to whom § 1983 liability applies. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

8

690 (1978). Counties and municipal government officials are also “persons” for purposes of §

9

1983. See id. at 691; see also Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir.

10

1989). A local government unit, however, may not be held responsible for the acts of its

11

employees or officials under a respondeat superior theory of liability. See Bd. of County

12

Comm’rs v. Brown, 520 U.S. 397, 403 (1997). Thus, municipal liability must rest on the actions

13

of the municipality, and not of the actions of its employees or officers. See id. To assert

14

municipal liability, therefore, the plaintiff must allege that the constitutional deprivation

15

complained of resulted from a policy or custom of the municipality. See id. A claim of

16

municipal liability under § 1983 is sufficient to withstand dismissal even if it is based on nothing

17

more than bare allegations that an individual defendant’s conduct conformed to official policy,

18

custom, or practice. See Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir.

19

1988). There are no allegations in the complaint that the arresting officers were acting pursuant

20

to any official policy, custom or practice in order to impose liability on the police departments.

21
22

III. CONCLUSION
Because it is possible that the deficiencies identified in this order may be cured by

23

amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire

24

action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is

25

informed that, as a general rule, an amended complaint supersedes the original complaint. See

26

Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to
3

1

amend, all claims alleged in the original complaint which are not alleged in the amended

2

complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if

3

plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make

4

plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be

5

complete in itself without reference to any prior pleading. See id.

6

If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

7

conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

8

Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

9

each named defendant is involved, and must set forth some affirmative link or connection

10

between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

11

164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

12

Finally, plaintiff is warned that failure to file an amended complaint within the

13

time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

14

1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

15

with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

16

See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

17

Accordingly, IT IS HEREBY ORDERED that:

18

1.

Plaintiff’s complaint is dismissed with leave to amend; and

19

2.

Plaintiff shall file an amended complaint within 30 days of the date of

20

service of this order.

21
22
23
24

DATED: February 6, 2012
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

25
26
4