Tanksley v. Sacramento County Police Department

Filing 5

ORDER granting 2 Motion to Proceed IFP signed by Magistrate Judge Allison Claire on 1/29/16: The Clerk of the Court is directed to randomly assign a United States District Judge to this action. Plaintiff may proceed now to serve Officer Hall. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, a copy of the complaint, an instruction sheet, and an appropriate form for consent to trial by a magistrate judge. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MOODY WOODROW TANKSLEY,

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No. 2:16-cv-0023-AC

Plaintiff,
v.

ORDER

THE SACRAMENTO COUNTY POLICE
DEPARTMENT; and OFFICER GILBERT
S. HALL, BADGE # 454,
Defendants.

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Plaintiff is proceeding in this action pro se and has requested authority pursuant to 28

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U.S.C. § 1915 to proceed in forma pauperis. This proceeding was transferred from the Fresno

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Division of this court (ECF No. 3), and referred to the undersigned by E.D. Cal. R. (“Local

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Rule”) 302(c)(21). Plaintiff has submitted the affidavit required by § 1915(a) showing that

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plaintiff is unable to prepay fees and costs or give security for them. ECF No. 2. Accordingly,

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the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).

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I. SCREENING
Granting IFP status does not end the court’s inquiry, however. The federal IFP statute

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requires federal courts to dismiss a case if the action is legally “frivolous or malicious,” fails to

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state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is

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immune from such relief. 28 U.S.C. § 1915(e)(2).
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Plaintiffs must assist the court in making this determination by drafting their complaint so

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that it contains a “short and plain statement” of the basis for federal jurisdiction (that is, the

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reason the case is filed in this court, rather than in a state court), as well as a short and plain

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statement showing that plaintiffs are entitled to relief (that is, who harmed the plaintiffs, and in

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what way). Plaintiffs’ claims must be set forth simply, concisely and directly. See “Rule 8” of

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the Federal Rules of Civil Procedure (Fed. R. Civ. P. 8). The Federal Rules of Civil Procedure

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are available online at www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-

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rules-civil-procedure.

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Forms are available to help pro se plaintiffs organize their complaint in the proper way.

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They are available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA

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95814, or online at www.uscourts.gov/forms/pro-se-forms.

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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). In reviewing a complaint under this standard, the

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court will (1) accept as true all of the factual allegations contained in the complaint, unless they

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are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the

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plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327;

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Erickson v. Pardus, 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art at

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Pasadena, 592 F.3d 954, 960 (9th Cir. 2010); Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010).

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However, the court need not accept as true, legal conclusions cast in the form of factual

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allegations, or allegations that contradict matters properly subject to judicial notice. See Western

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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); Sprewell v. Golden State Warriors,

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266 F.3d 979, 988 (9th Cir.), as amended, 275 F.3d 1187 (2001).

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Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se complaints are construed liberally and may

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only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support

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of his claim which would entitle him to relief. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir.

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2014). A pro se litigant is entitled to notice of the deficiencies in the complaint and an

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opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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II. THE COMPLAINT
According to the complaint, on December 17, 2015 at 9:30 a.m., at the Gospel Mission at

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400 Bannon Street in Sacramento, defendant Hall used excessive force on plaintiff while Hall was

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trying to clear the sidewalk of homeless people. The complaint further alleges that as a result,

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plaintiff was injured in his foot and ankle, and defendant refused him medical attention. The

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complaint contains no allegations against the Sacramento County Police Department.

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III. ANALYSIS
The complaint states a cognizable Section 1983 (42 U.S.C. § 1983) claim for relief against

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defendant Hall for the use of excessive force in violation of the Fourth Amendment to the U.S.

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Constitution. If the allegations of the complaint are proven, plaintiff has a reasonable

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opportunity to prevail on the merits of this action.

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However, the complaint fails to state a cognizable claim against Sacramento County

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Police Department. The Police Department cannot be held liable under Section 1983 based solely

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upon the conduct of Officer Hall, as that would be “vicarious liability.” See Connick v.

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Thompson, 563 U.S. 51, 60 (2011)) (municipal defendants “are not vicariously liable under

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§ 1983 for their employees’ actions”). Instead, the Police Department can be held liable only for

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the harm caused by its own actions and policies. Id. (municipal defendants “are responsible only

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for their own illegal acts”) (internal quotation marks omitted); Monell v. Dep't of Soc. Servs. of

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City of New York, 436 U.S. 658 (1978). Therefore, “to prevail on a Fourth Amendment § 1983

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claim against a municipal defendant or police department,” plaintiff must allege facts showing:

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(1) that he was “deprived of [his] constitutional rights by
defendants and their employees acting under color of state law;
(2) that the defendants have customs or policies which amount to
deliberate indifference to ... constitutional rights; and (3) that these
policies [were] the moving force behind the constitutional
violations.”

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Gant v. County of Los Angeles, 772 F.3d 608, 617 (9th Cir. 2014) (quoting Lee v. City of Los

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Angeles, 250 F.3d 668 (9th Cir. 2001)).
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One way the “customs or policies” requirement can be satisfied is if plaintiff can

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truthfully allege facts showing that he was harmed by the Police Department’s custom or policy

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of conducting inadequate “training or supervision,” where that training or supervision “is

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sufficiently inadequate as to constitute ‘deliberate indifference’ to the righ[t]s of persons” with

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whom its officers come into contact. Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th

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Cir. 1989) (quoting City of Canton v. Harris, 489 U.S. 378 (1989)). The requirement can also be

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satisfied if plaintiff can truthfully allege facts showing that the Department ratified Officer Hall’s

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allegedly unconstitutional conduct. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)

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(Section 1983 claim may be made out by acquiescence in a longstanding practice or custom

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which constitutes the “standard operating procedure” of the local governmental entity).
Plaintiff’s complaint alleges no such facts against the Department, and therefore, the
complaint fails to state a claim against it.

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IV. CONCLUSION

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For the reasons stated above, IT IS HEREBY ORDERED that:

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1. The Clerk of the Court is directed to randomly assign a United States District Judge to

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this action.

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2. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2), is GRANTED.

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3. Plaintiff may proceed now to serve Officer Hall, as set forth below (instructions

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numbered 5-9), and pursue his claims against only that defendant. Alternatively, he may delay

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serving Officer Hall, and attempt to state a cognizable claim against the Sacramento County

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Police Department.

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4. If plaintiff elects to attempt to amend his complaint to state a cognizable claim

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against the Police Department, he has thirty days so to do (and he may skip instructions

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numbered 5-9, below). He is not obligated to amend his complaint, and may instead proceed only

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against Officer Hall (see instructions 5-9, below). If plaintiff chooses to amend so that he can sue

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the Police Department, the amended complaint will also be subject to screening.

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Plaintiff is informed that the court cannot refer to a prior pleading in order to make
plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be
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complete in itself without reference to any prior pleading. In the amended complaint, as in the

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

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alleged.

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5. If plaintiff elects to proceed now against Officer Hall alone, then within thirty days

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he must return the materials for service of process that are enclosed with this order, as described

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below. In this event the court will construe plaintiff’s election as consent to the dismissal of all

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claims against the Sacramento County Police Department, without prejudice.

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6. Service is appropriate for the following defendant: Officer Gilbert S. Hall, Badge
# 454.

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7. The Clerk of the Court shall send plaintiff one USM-285 form for each defendant, one

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summons, a copy of the complaint filed December 30, 2015 (ECF No. 1), an instruction sheet,

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and an appropriate form for consent to trial by a magistrate judge.

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8. Within 30 days from the date of this order, plaintiff shall complete the attached Notice
of Submission of Documents, and submit the following documents to the court:

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a. The completed Notice of Submission of Documents;

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b. One completed USM-285 form for each defendant listed in number 3, above;

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c. One completed summons;

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d. One copy of the endorsed complaint for each defendant; and

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e. A completed form to consent or decline to consent to trial by the magistrate

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judge.

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9. Plaintiff need not attempt service on defendant and need not request waiver of service.

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Upon receipt of the above-described documents, the court will direct the United States Marshal to

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serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment

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of costs.

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10. Failure to comply with this order may result in a recommendation that this action be

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dismissed for lack of prosecution and failure to comply with a court order.

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DATED: January 29, 2016

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MOODY WOODROW TANKSLEY,
Plaintiff,

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No. 2:16-cv-0023-AC

v.

NOTICE OF SUBMISSION OF
DOCUMENTS

THE SACRAMENTO COUNTY POLICE
DEPARTMENT; and OFFICER GILBERT
S. HALL, BADGE # 454,
Defendant.

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Plaintiff submits the following documents in compliance with the court's order filed
_____________________:
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completed summons form

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completed USM-285 forms

____ copies of the complaint
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completed form to consent or decline to consent to magistrate judge jurisdiction

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____________________________________
Date

____________________________________
Plaintiff

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