Gerlach v. Sacramento Police K-9 Division

Filing 8

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/24/2017 GRANTING plaintiff's 2 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent order to the Sheriff of Sacramento County. The complaint is DISMISSED with leave to amend within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTIAN GERLACH,

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Plaintiff,

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No. 2:15-cv-1373-EFB P

v.

ORDER

SACRAMENTO POLICE K-9 DIVISION,

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Defendant.

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Plaintiff is county inmate proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He has filed an application to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915.

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I.

Request to Proceed In Forma Pauperis
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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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include 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 Atl. Corp. v.

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

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009).

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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.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

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678.

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Furthermore, a claim upon which the court can grant relief must have 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, 556 U.S. at 678. 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, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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

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III.

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Screening Order
The court has reviewed plaintiff’s complaint, amended complaint, and declaration (ECF

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Nos. 1, 5, 6) pursuant to § 1915A and finds that it must be dismissed with leave to amend.

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Plaintiff names the “Sacramento Police K-9 Division” as the defendant. He claims that after he

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was chased by police, he passed out. He claims that he was awoken by a police dog, who bit and

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shook him. As explained below, plaintiff fails to state a claim. To proceed, plaintiff must file an

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amended complaint.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged violation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988). An individual defendant is not liable on a civil rights claim unless the

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facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

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(9th Cir. 1978).

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Plaintiff may not sue any official on the theory that the official is liable for the

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unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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Instead, he must identify the particular person or persons who violated his rights. He must also

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plead facts showing how that particular person was involved in the alleged violation.

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In order to state a claim for the use of excessive force by a pretrial detainee, a plaintiff

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“must show only that the force purposely or knowingly used against him was objectively

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unreasonable.” Kingsley v. Hendrickson, __ S. Ct. __, 2015 U.S. LEXIS 4073, at *12 (June 22,

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2015). Here, plaintiff may be able to state a cognizable excessive force claim if he can allege

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facts demonstrating that the force used was objectively unreasonable under the circumstances.

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However, plaintiff has not named a proper defendant. Plaintiff does not name as a defendant the

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dog handler or police officer in charge of the dog. Plaintiff includes no allegations asserting

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liability on the part of the city or the K-9 Division. Local government entities may not be held

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vicariously liable under section 1983 for the unconstitutional acts of its employees under a theory

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of respondeat superior. See Board of Cty. Comm'rs. v. Brown, 520 U.S. 397, 403 (1997). A

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municipal entity or its departments is liable under section 1983 only if plaintiff shows that his

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constitutional injury was caused by employees acting pursuant to the municipality’s policy or
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custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977); Monell v. New

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York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Villegas v. Gilroy Garlic Festival Ass'n,

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541 F.3d 950, 964 (9th Cir. 2008).

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In addition, the court notes that it appears from plaintiff’s filings that he wishes to amend

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or add to his complaint in a piecemeal fashion through separate filings. This, however, is not the

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proper procedure for amending a complaint. Plaintiff may not amend his complaint in a

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piecemeal fashion by filing separate documents that are intended to be read together as a single

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complaint. If plaintiff wishes to add, omit, or correct information in the operative complaint, he

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must file an amended complaint that is complete within itself.

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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.

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Any amended complaint must not exceed the scope of this order and may not add new,

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unrelated claims. Further, any amended complaint must cure the deficiencies identified above

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and also adhere to the following 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 is

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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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Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. Local Rule 110.

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IV.

Summary of Order

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in

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accordance with the notice to the Sheriff of Sacramento County filed concurrently

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herewith.

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3. The complaint is dismissed with leave to amend within 30 days. The amended

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complaint must bear the docket number assigned to this case and be titled “First

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Amended Complaint.” Failure to comply with this order will result in this action

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being dismissed for failure to state a claim. If plaintiff files an amended complaint

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stating a cognizable claim the court will proceed with service of process by the United

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States Marshal.

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Dated: January 24, 2017.

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