Sage v. Shasta County et al.

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 10/5/2016 DISMISSING the First Amended Complaint; and plaintiff is GRANTED leave to file a Second Amended Complaint 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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CHRISTOPHER JEFFREY SAGE,

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Plaintiff,

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No. 2:16-cv-0982 AC PC

v.

ORDER

SHASTA COUNTY, CITY OF
REDDING, REDDING POLICE
DEPARTMENT, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding in pro se, filed his original civil rights complaint and

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a request to proceed in forma pauperis on May 9, 2016. ECF Nos. 1, 2. Plaintiff was granted in

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forma pauperis (IFP) status, and upon screening his complaint was dismissed with leave to

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amend. ECF No. 5. Plaintiff timely filed a First Amended Complaint on June 17, 2016. ECF

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No. 6.

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I.

SCREENING

The federal IFP statute requires federal courts to dismiss a case if the action is legally

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“frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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Plaintiff must assist the court in making this determination by drafting the Complaint so
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 plaintiff is entitled to relief (that is, who harmed plaintiff, and in what

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way). Plaintiff's claims must be set forth simply, concisely and directly. See “Rule 8” of the

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

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

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rules-civil-procedure. Forms are also available to help a pro se plaintiff organize the Complaint

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in the proper way. They are available 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.
Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing plaintiff’s Complaint under this

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standard, the court will (1) accept as true all of the factual allegations contained in the Complaint,

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

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

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at 327; Erickson v. Pardus, 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art

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at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011).

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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 the claim which would entitle plaintiff to relief. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th

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Cir. 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 AMENDED COMPLAINT

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Plaintiff sues the County of Shasta, the City of Redding, the Redding Police Department,

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and six named individuals (Officers Hunt, Little, Konkeoviman, Williams, and Cowan, and Sgt.
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Maready) for the alleged use of excessive force on May 20, 2015. Plaintiff alleges that on that

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date, police responded to a “slight altercation” that plaintiff had with a mailman. The first two

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officers to arrive on the scene forced plaintiff to the ground and pepper sprayed him in the face

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several times, causing pain and difficulty breathing. The officers struck and kicked plaintiff

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while he lay on the ground in handcuffs. The handcuffs were so tight that they caused great pain.

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Other officers arrived, and joined in the beating. Plaintiff was roughly placed in a police car, but

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shortly thereafter was dragged from the vehicle by two officers who “slammed” him from a

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standing position to face-down in the street. The handcuffs were re-applied even more tightly,

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and plaintiff was again beaten as he lay on the ground. Plaintiff was hog-tied, and the beating

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continued. A crowd gathered and onlookers called on the officers to not be so rough. Plaintiff

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was accused of spitting and a “spit hood” was placed over his head, which made it harder to

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breathe. One officer repeatedly ground plaintiff’s face into the asphalt while grinding his knee

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into plaintiff’s temple. Plaintiff almost lost consciousness, and feared for his life. The officers

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put plaintiff back in the police car, and took him directly to the hospital where he was treated for

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his wounds. The officers used pain compliance techniques during the entire 4 hours that plaintiff

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was in their custody. When plaintiff was taken from the hospital to the jail, he was “pulled” and

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“yanked” and “carried” to a holding cell. As officers removed plaintiff’s restraints, they

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threatened to “taze [him]” before finally leaving him alone. ECF No. 6 at 4-10.

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III.

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ANALYSIS

A. Plaintiffs’ Section 1983 Civil Rights Claim(s)

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1. Fourth Amendment Excessive Force Standards

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An excessive force claim arising in the context of an arrest invokes the protections of the

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Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394 (1989). “An objectively

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unreasonable use of force is constitutionally excessive and violates the Fourth Amendment’s

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prohibition against unreasonable seizures.” Torres v. City of Madera, 648 F. 3d 1119, 1123-24

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(9th Cir. 2011), cert. denied, 132 S. Ct. 1032 (2012). The facts alleged in the complaint, assumed

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to be true for purposes of screening, are sufficient to present a cognizable Fourth Amendment

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claim. However, the complaint does not adequately state that claim against any particular

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defendant, for the reasons that follow.

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2. Individual Liability Under § 1983

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There can be no liability under 42 U.S.C. § 1983 unless there is an affirmative link or

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connection between an individual defendant’s actions and the claimed constitutional violation.

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Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). For this reason, the complaint must allege

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in specific terms how each named defendant is involved. Vague or conclusory allegations of

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official participation in civil rights violations are not sufficient. See Ivey v. Board of Regents,

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673 F.2d 266, 268 (9th Cir. 1982).
The original complaint did not identify any individual defendants, ECF No. 1, and

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plaintiff was informed that he must do so. ECF No. 5. The amended complaint does name

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individual officers. ECF No. 6 at 1(caption), 2 (section III of form complaint). However, the

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factual allegations of the amended complaint, which are identical to those of the original

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complaint, do not link any of the named defendants to any of the specific acts alleged to have

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violated plaintiff’s rights. Id. at 3-10. In order to state a claim against any individual, plaintiff

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must specify that person’s role in the alleged assault. The statement of the claim must explain

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what each named defendant did to violate plaintiff’s right to be free from excessive force.

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3. Supervisory and Municipal Liability Under § 1983

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Neither the county, nor the city, nor the police department can be liable under § 1983 for

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the acts of the officers alone, as that would be “vicarious liability.” See Connick v. Thompson,

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563 U.S. 51, 60 (2011) (municipal defendants “are not vicariously liable under § 1983 for their

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employees’ actions”). To prevail on a claim against a municipal defendant or police department,

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plaintiff must allege facts showing: (1) that he was deprived of his constitutional rights by

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defendants and their employees acting under color of state law; and (2) that the municipal

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defendants have customs or policies which amount to deliberate indifference to specifically

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identified constitutional rights; and (3) that these policies were the moving force behind the

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constitutional violations. Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001)
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(emphasis added). The “customs or policies” requirement can be satisfied by training or

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supervision that is so inadequate as to demonstrate deliberate indifference to the rights of

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arrestees. See Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989).

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Plaintiff has previously been advised of these requirements for municipal liability. ECF

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No. 5 at 4:1-12. Rather than adding allegations regarding an unconstitutional policy or failure to

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train, however, the amended complaint alleges that the individual officers “violated the rules &

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regulations of the Shasta County Police Department [sic] regarding the policies & the use of

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excessive force.” ECF No. 6 at 3. It appears therefore that plaintiff does not wish to proceed

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against the city and county defendants.

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If the individual officers in fact violated applicable departmental policies, they would be

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individually liable for any constitutional violation they caused. If plaintiff believes this to be the

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case, as it appears he does, he should drop the county, city and police department from his lawsuit

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and proceed against the individual defendants only.

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If, on the other hand, plaintiff believes that the county, city and/or police department

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caused the alleged constitutional violations through their policies, procedures, or training

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practices, and wishes to maintain suit against them on that basis, he must specify (1) what the

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defective policies, procedures, or training practices are, and (2) how they caused the alleged

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constitutional violations.

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B. Plaintiff’s Putative State Law Claims

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Plaintiff seeks, among other forms of relief, “money damages under state tort law.” ECF

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No. 6 at 3. Under California law, the timely presentation of a claim under the California Tort

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Claims Act (“the Act”) is a condition precedent to any action against a local public entity and/or

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employee of such an entity. Cal. Govt. Code §§ 900.4, 905, 911.2. Compliance with this

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requirement is, therefore, a necessary element of a state law claim that must be pled in the

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complaint. Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 215 (2007); Karim-Panahi v. Los

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Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988). Plaintiff has not pleaded compliance

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with the Act.

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Under the Act, plaintiff must file a claim within 6 months of the date of the accrual of his

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cause of action. Cal. Govt. Code § 911.2. Because plaintiff’s injury occurred on May 20, 2015,

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his claim was due by November 20, 2015. A claimant may seek permission to file a late claim

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within a reasonable time not to exceed one year after accrual of the claim. Id. at § 911.4(a). The

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time for this action would have expired on May 20, 2016.

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Plaintiff can only seek recovery under California law if he can truthfully allege that he

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filed a claim with the local entities in compliance with these deadlines. Karim-Panahi, 839 F.2d

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at 627. Absent such allegations, the putative state law claim(s) must be dismissed because they

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fail to state a claim upon which relief may be granted. Id. If plaintiff believes that he has in fact

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satisfied the California Tort Claims Act, he may amend to add the necessary allegations

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demonstrating compliance. If he cannot truthfully allege compliance, he may elect to proceed

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under 42 U.S.C. § 1983 only, by omitting his references to state law in the amended complaint.

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CONCLUSION

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For the reasons explained above, the complaint must be dismissed pursuant to 28 U.S.C. §

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1915(e)(2). Plaintiff will be granted a second opportunity to amend his complaint, and should do

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so in light of the information provided in this order regarding the additional factual allegations

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(statements of fact) that are required in order to state a claim against individual officers and/or

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against local public entities.

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Accordingly, it is hereby ordered as follows:

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1. The First Amended Complaint, ECF No. 6, is hereby DISMISSED; and

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2. Plaintiff is granted leave to file a Second Amended Complaint within 30 days.

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Plaintiff is cautioned that failure to timely amend the complaint may result in a

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recommendation that this action be dismissed.

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DATED: October 5, 2016

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