(PC) Gardner v. Vallejo Police Department et al

Filing 8

ORDER signed by Magistrate Judge Dennis M. Cota on 10/04/19 ORDERING plaintiff's complaint is dismissed with leave to amend. Plaintiff shall file a first amended complaint within 30 days of the date of service of this order. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNIS LAMAR GARDNER, JR.,

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No. 2:19-CV-1432-DMC-P

Plaintiff,
v.

ORDER

VALLEJO POLICE DEPARTMENT, et
al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (ECF No.1).
The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This

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means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d

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1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the
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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it

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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the

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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff Dennis Lamar Gardner, Jr. names the following as defendants: (1) the

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Vallejo Police Department, (2) the City of Vallejo, (3) Steve Darden, (4) Sean Kenney, (5) Hak,

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(6) Myer, and (7) Terrel.

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According to plaintiff, on April 30, 2017, Vallejo Police Officer Steven Darden

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obtained an arrest warrant against plaintiff for a probation violation. Plaintiff alleges he was not

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on probation at the time the warrant was issued. On May 30, 2017, Vallejo Police Officer Sean

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Kenny, US Marshall Hak, DA Investigator Myer Solano, California Department of Corrections

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and Rehabilitation (“CDCR”) Agent Terrel, were conducting a nearby sting operation. During

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this sting operation, they noticed plaintiff and arrested him. Plaintiff claims that the arresting

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officers hand-cuffed and hog-tied him.

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Plaintiff also alleges that, during booking into Solano County Jail, his cellular

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phone was confiscated but not logged with the rest of his belongings. The charges stemming from

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the arrest were subsequently dropped; however, his cellular phone was never returned nor located.

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Plaintiff claims to have suffered a deprivation of his personal freedom and property.

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II. DISCUSSION
Plaintiff’s complaint fails to state sufficient facts to support a cognizable 4th

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Amendment claim.

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A.

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Causal Link
To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual

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connection or link between the actions of the named defendants and the alleged deprivations. See

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Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A

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person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of §

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1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform

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an act which he is legally required to do that causes the deprivation of which complaint is made.”

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth

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specific facts as to each individual defendant’s causal role in the alleged constitutional

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deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Defendants City of Vallejo & Vallejo Police Department

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Municipalities and other local government units are among those “persons” to

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whom § 1983 liability applies. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).

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Counties and municipal government officials are also “persons” for purposes of § 1983. See id.

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at 691; see also Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989). A local

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government unit, however, may not be held responsible for the acts of its employees or officials

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under a respondeat superior theory of liability. See Bd. of County Comm’rs v. Brown, 520 U.S.

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397, 403 (1997). Thus, municipal liability must rest on the actions of the municipality, and not of

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the actions of its employees or officers. See id. To assert municipal liability, therefore, the

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plaintiff must allege that the constitutional deprivation complained of resulted from a policy or

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custom of the municipality. See id. A claim of municipal liability under § 1983 is sufficient to

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withstand dismissal even if it is based on nothing more than bare allegations that an individual

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defendant’s conduct conformed to official policy, custom, or practice. See Karim-Panahi v. Los

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Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988).

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As to the City of Vallejo and the Vallejo Police Department, plaintiff has failed to

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allege how the named defendants’ personal conduct violated plaintiff’s constitutional or statutory

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rights. There is no factual mention of either the City of Vallejo or the Vallejo Police Department

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in plaintiff’s complaint, nor any description as to how they may be associated with the

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deprivation of plaintiff’s rights. Plaintiff refers to being booked into Solano County jail after his

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arrest, but it is unclear if plaintiff is referring to a named defendant by a different name or is

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alleging that a non-named party is responsible for the loss of his property. There are no

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allegations that plaintiff’s constitutional deprivations were the direct result of either of the named

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defendants’ policies or procedures.

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2.

Defendant Steve Darden

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Plaintiff references that Darden was the originator of the warrant which lead to his

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arrest. However, plaintiff does not allege any misconduct on the part of Darden. There are no

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allegations that Darden acted maliciously or unreasonable in his handling of the warrant. Plaintiff

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makes no connection between the fact that Darden “put a warrant in the system” and the loss of

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his rights. ECF No. 1 at 3.

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Because plaintiff fails to allege any facts indicating the manner in which these

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named defendants engaged in the alleged unconstitutional action, plaintiff has failed to satisfy the

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pleading standard for a cognizable § 1983 claim.

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B.

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Excessive Force by an Officer
A claim of excessive force in the course of making a seizure of a person is

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analyzed under the Fourth Amendment's objective reasonableness standard. See Brooks v. Clark

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County, 828 F.3d 910 (9th Cir. 2016). In determining the reasonableness of force used to effect a

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seizure, governmental interests are balanced against the suspect’s private interests by measuring

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the following factors: (1) severity of the crime at issue; (2) whether the suspect posed an

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immediate threat to the safety of officers or others; (3) whether the suspect was actively resisting

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arrest or attempting to evade arrest by flight, and any other exigent circumstances that existed at

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the time of arrest. Id. at 920.

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Here, plaintiff alleges that the defendants Sean Kenney, Hak, Myer, and Terrel

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used excessive force when they arrested him on May 30, 2017. Specifically, plaintiff states that

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these officers placed him in handcuffs and “hog-tied” him for the violation of parole and

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obstructing a peace officer. ECF No. 1 at 3. While this allegation lends support to the finding of a

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valid 4th Amendment claim, there remains an intolerably high level of uncertainty as to plaintiff’s

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recounting of events. Plaintiff’s complaint does not describe the individual conduct of any of the

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named officers, nor the degree to which they were involved in the plaintiff’s arrest. It is not clear

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whether plaintiff means to suggest that all the named defendants actively participated in his arrest,

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or whether they were simply present at the scene. Also, the surrounding circumstances of

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plaintiff’s arrest are left unclear. There is no recounting of the events leading up to plaintiff’s

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arrest for a reasonable fact-finder to determine if excessive force was used. Lastly, it is uncertain

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from plaintiff’s statement of facts whether he was restrained for resisting arrest or whether the

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warrant was issued for a previous instance of resisting arrest.

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Plaintiff is advised that specific facts as to each individual defendant’s causal role

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in the alleged constitutional deprivation are required to make a cognizable § 1983 claim. Vague

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and under-explained allegations of excessive force will not suffice.

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III. CONCLUSION
Because it is possible that the deficiencies identified in this order may be cured by

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amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire

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action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is

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informed that, as a general rule, an amended complaint supersedes the original complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

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amend, all claims alleged in the original complaint which are not alleged in the amended

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complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if

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plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make

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plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be

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complete in itself without reference to any prior pleading. See id.
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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s complaint is dismissed with leave to amend; and

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2.

Plaintiff shall file a first amended complaint within 30 days of the date of

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service of this order.

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Dated: October 4, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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