Toole v. Roseville Police Department et al

Filing 9

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/14/18 GRANTING 5 , 7 Motion to Proceed IFP. The complaint is dismissed with leave to amend within 30 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SEAN K. TOOLE,

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Plaintiff,

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No. 2:17-cv-2162-EFB P

v.
ROSEVILLE POLICE DEPARTMENT, et
al.,

ORDER GRANTING IFP AND SCREENING
COMPLAINT PURSUANT TO 28 U.S.C. §
1915A

Defendants.

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Plaintiff, a former county inmate, proceeds without counsel in an action brought under 42

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

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U.S.C. § 1915. Plaintiff’s application will be granted. The court must now screen plaintiff’s

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complaint pursuant to 28 U.S.C. § 1915A.

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I.

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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II.

Screening Order
Plaintiff’s complaint (ECF No. 1) alleges that Officer Ball of the Roseville Police

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Department stopped plaintiff on his way to the store. Id. at 1. Plaintiff identified himself and

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informed Ball that he was not on parole or probation. Plaintiff claims that Ball “committed

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actions of unprovoked, unwarranted, and extreme violence” against him, resulting in a broken

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nose and broken rib. Id. According to plaintiff, Ball “choked, punched, [and] hit [plaintiff] with

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[a] baton.” Id. He asserts (1) an excessive force claim against defendant Ball; (2) a “supervisory

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liability” claim against Does 1-10 and the Roseville Police Department; and (3) a Bane Act claim
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(California Civil Code section 52.1) against Does 11-20. Plaintiff seeks damages for his injuries.

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As explained below, none of plaintiff’s claims can survive screening.

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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, 135 S. Ct. 2466, 2472-73 (2015). Here, plaintiff has

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not alleged enough facts to allow the court to determine whether the alleged use of force was

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objectively unreasonable. Plaintiff’s alleged injuries, while serious, are not enough to state a

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claim of excessive force. See id. at 2473 (identifying the following considerations that may bear

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on the reasonableness or unreasonableness of the force used: (1) the relationship between the

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need for the use of force and the amount of force used; (2) the extent of the plaintiff’s injury; (3)

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any effort made by the officer to temper or to limit the amount of force; (4) the severity of the

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security problem at issue; and (5) the threat reasonably perceived by the officer; and whether the

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plaintiff was actively resisting.). Although plaintiff alleges that the use of force was

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“unprovoked” and “unwarranted,” he does not describe what actually happened after he was

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stopped on his way to the store. It is unclear what facts occurred that led to that application of

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force, what specific force was actually applied and the manner in which it was used, and why

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plaintiff concludes that Officer Ball lacked any legitimate reason to use force at any point during

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their encounter. This claim is therefore dismissed with leave to amend.

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In the absence of an underlying excessive force claim, plaintiff’s claim against the

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Roseville Police Department necessarily fails. See Monell v. New York City Dep’t of Soc. Servs.,

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436 U.S. 658, 691 (1978) (municipal entity or its departments is liable under section 1983 only if

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plaintiff shows that a constitutional injury was caused by employees acting pursuant to the

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municipality’s policy or custom).

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Plaintiff’s Bane Act claim must also be dismissed for failure to allege compliance with the

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California Torts Claims Act (“Act”). The Act requires that a party seeking to recover money

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damages from a public entity or its employees submit a claim to the entity before filing suit in

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court, generally no later than six months after the cause of action accrues. Cal. Gov’t Code

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§§ 905, 911.2, 945, 950.2 (emphasis added). When a plaintiff asserts a claim subject to the Act,
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he must affirmatively allege compliance with the claim presentation procedure, or circumstances

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excusing such compliance, in his complaint. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201,

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209 (2007).

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As for plaintiff’s inclusion of “Doe” defendants, unknown persons cannot be served with

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process until they are identified by their real names and the court will not investigate the names

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and identities of unnamed defendants. Further, the Federal Rules of Civil Procedure, not state

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court Doe pleading practice govern the method by which plaintiff may amend his complaint to

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add new parties. If plaintiff later learns the identities of any “Doe” parties he wishes to serve, he

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may move pursuant to Rule 15 of the Federal Rules of Civil Procedure to file an amended

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complaint to add them as named defendants. See Brass v. County of Los Angeles, 328 F.3d 1192,

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1197 98 (9th Cir. 2003).

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III.

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Leave to Amend
Plaintiff will be granted leave to file an amended complaint. Lopez v. Smith, 203 F.3d

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1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity

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to amend to correct any deficiency in their complaints). Any such complaint must 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. The amended complaint shall clearly set forth the claims and allegations

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against each defendant and must cure the deficiencies identified above. It shall also adhere to the

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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).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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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. E.D. Cal. 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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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. L.R. 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 Nos. 5 & 7) is granted.

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2. The complaint is dismissed with leave to amend within 30 days. The complaint must

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bear the docket number assigned to this case and be titled “Amended Complaint.”

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Failure to comply with this order may result in dismissal of this action for failure to

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prosecute and failure to state a claim. If plaintiff files an amended complaint stating a

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

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Marshal.

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Dated: August 14, 2018.

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