Pope v. Duggins et al

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/8/12 ORDERING that the complaint is DISMISSED with leave to amend within 30 days. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH N. POPE, II,
Plaintiff,

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vs.

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No. 2:12-cv-1873 EFB P

MICHAEL DUGGINS, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local

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Rules, Appx. A, at (k)(4). In addition to filing a complaint, plaintiff has filed an application to

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proceed in forma pauperis.

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I.

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Request to Proceed In Forma Pauperis
Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).
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II.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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Furthermore, a claim upon which the court can grant relief has facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal

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Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain

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statement of the claim showing that the pleader is entitled to relief, in order to give the defendant

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fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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III.

Screening Order
The court has reviewed plaintiff’s complaint pursuant to § 1915A and finds that it must

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be dismissed for failure to state a cognizable claim. Plaintiff names as defendants Michael

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Duggins, Anthony Herrera, and Jason Fortier. He alleges that on September 11, 2010,

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defendants used excessive force against him during an arrest, which caused plaintiff to suffer

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serious injuries. Plaintiff seeks compensatory damages.

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Excessive force claims are analyzed under the “objective reasonableness” standard of the

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Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 388 (1989). This inquiry “requires a

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careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth

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Amendment interests’ against the countervailing governmental interests at stake.” Id. at 396.

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In determining whether law enforcement officers used excessive and, therefore,

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constitutionally unreasonable force in the course of an arrest, the Ninth Circuit employs a

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three-step analysis. Miller v. Clark County, 340 F.3d 959 (9th Cir. 2003). First, the court

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assesses “the gravity of the particular intrusion on Fourth Amendment interests by evaluating the

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type and amount of force inflicted.” Id. at 964. Second, the court assesses “the importance of

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the government interests at stake” based on the following factors: (1) the severity of the crime at

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issue; (2) whether the suspect posed an immediate threat to the safety of the officers or others;

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and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.

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Graham, 490 U.S. at 396. Third, the court must consider the totality of the circumstances and

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weigh the gravity of the intrusion against the government’s interest to determine whether the

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force employed was constitutionally reasonable. Miller, 340 F.3d at 964; see also Franklin v.

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Foxworth, 31 F.3d 873, 876 (9th Cir. 1994) (stating the “inquiry is not limited to the specific

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Graham factors, [the court] must look to whatever specific factors may be appropriate in a

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particular case, whether or not listed in Graham, and then must consider ‘whether the totality of

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the circumstances justifies a particular sort of seizure.’”). In Graham, the Supreme Court made

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clear that the reasonableness of the force used must be judged from the perspective of a
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reasonable officer on the scene, making allowances for the split-second judgments officers are

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required to make in “tense, uncertain, and rapidly-evolving” situations. 490 U.S. at 396-97. In

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other words, the court must evaluate an officer’s actions “from the perspective of a reasonable

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officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396.

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Plaintiff’s allegations relate only to the amount of force allegedly used and the injuries

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allegedly sustained. Plaintiff’s allegations do not address any of the other factors relevant to

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determining whether the force used by the officers was objectively unreasonable. Rather, a state

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court motion, apparently filed by plaintiff in state court, and filed with the instant complaint,

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suggests that the arrest was a “struggle” because plaintiff ran from the officers and was resisting

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the arrest. The motion also suggests that the force used by the officers was not necessarily done

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for the purpose of causing plaintiff harm. In an amended complaint, plaintiff must set forth

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sufficient factual allegations to demonstrate that under the totality of the circumstances, the

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officers’ use of force was constitutionally unreasonable.
Plaintiff will be granted leave to file an amended complaint, if plaintiff can allege a

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cognizable legal theory against a proper defendant and sufficient facts in support of that

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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

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shall clearly set forth the claims and allegations against each defendant. Any amended

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complaint must cure the deficiencies identified above and also adhere to the following

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requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he

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is legally required to do that causes the alleged deprivation). It must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims in an

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

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complaints).

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Accordingly, IT IS HEREBY ORDERED that the complaint is dismissed with leave to

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amend within 30 days. The amended complaint must bear the docket number assigned to this

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case and be titled “First Amended Complaint.” Failure to comply with this order may result in

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dismissal of this action. If plaintiff files an amended complaint stating a cognizable claim the

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court will proceed with service of process by the United States Marshal.

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DATED: November 8, 2012.

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