Cerda v. Sacramento City Police K-9 Division

Filing 17

ORDER signed by Magistrate Judge Kendall J. Newman on 11/24/15 ordering plaintiff's amended complaint is dismissed, but with leave to amend. Within 28 days of this order, plaintiff shall file either a first amended complaint in compliance with this order or a notice of voluntary dismissal of the action without prejudice. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ORLANDO CERDA,

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No. 2:14-cv-1712 KJN P

Plaintiff,
v.

ORDER

SACRAMENTO CITY POLICE K-9
DIVISION,
Defendants.
Plaintiff is a former county jail inmate, and is proceeding without counsel and in forma

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pauperis. Plaintiff’s amended complaint is before the court. Plaintiff consented to proceed before

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the undersigned for all purposes. See 28 U.S.C. § 636(c).

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The determination that a plaintiff may proceed in forma pauperis does not complete the

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required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at

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any time if it determines that the allegation of poverty is untrue, or if the action is frivolous or

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malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against

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an immune defendant.

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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 (9th

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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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To avoid dismissal for failure to state a claim, a complaint must contain more than “naked

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

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action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (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). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.

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at 1949. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 127 S. Ct.

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2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see

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

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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21

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(1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear

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that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma

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pauperis is entitled to notice and an opportunity to amend before dismissal. See Noll v. Carlson,

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809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.

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Plaintiff again alleges that he was attacked by a police dog in May of 2014, while he was

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at his brother’s home. Plaintiff claims that the police used excessive force, because while the

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officers were clearing the house in the process of arresting him for an unrelated matter, plaintiff

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was not given an opportunity to surrender or asked to come out. Rather, plaintiff claims that

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while he was shaving after his shower, a police dog attacked him causing injury and requiring

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medical care. Plaintiff seeks monetary damages.

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However, in the caption of his amended complaint, plaintiff names the “Sacramento City

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Police K-9 Division” as defendant, and notes “waiting on discovery” for officer. (ECF No. 14 at
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1.) However, in the defendants’ section of the pleading, plaintiff names the Sacramento Sheriff

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K-9 Division as the defendant, and adds that additional defendants are “to be added upon

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discovery (police report).” (ECF No. 14 at 2.) Because the caption and the text of the pleading

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conflict, naming both the Sacramento County Sheriff’s K-9 Division and the Sacramento City

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Police’s K-9 Division, plaintiff is granted leave to amend to clarify which K-9 Division was

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involved, and to name the appropriate defendant. Plaintiff is reminded that he must take steps to

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find out the names of the officers involved during the May 8, 2014 incident. Plaintiff may be able

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to obtain a copy of the police report from his defense counsel, or from the police department. The

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court cannot order service of process on an individual without the individual’s name.
Plaintiff has improperly named defendants. Therefore, the court dismisses plaintiff’s

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amended complaint, but with leave to amend. If plaintiff elects to file an amended complaint, it

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shall be captioned “Second Amended Complaint”; shall correct the deficiencies outlined in this

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order; and shall be filed within 28 days of this order.

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Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order

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

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amended complaint be complete in itself without reference to any prior pleading. As a general

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rule, an amended complaint supersedes the original complaint, and once the second amended

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complaint is filed, the original complaint no longer serves any function in the case.

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Finally, nothing in this order requires plaintiff to file a second amended complaint. If

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plaintiff determines that he is unable to amend his complaint in compliance with the court’s order

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at this juncture, he may alternatively file a notice of voluntary dismissal of his claims without

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prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) within 28 days of this order.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s amended complaint is dismissed, but with leave to amend;

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2. Within 28 days of this order, plaintiff shall file either a first amended complaint in

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compliance with this order, or a notice of voluntary dismissal of the action without prejudice

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pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i); and

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3. Failure to file either a second amended complaint in compliance with this order or a

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notice of voluntary dismissal by the required deadline will result in the dismissal of this action

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pursuant to Federal Rule of Civil Procedure 41(b).

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Dated: November 24, 2015

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/cerd1712.14b

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