(PS) Ferreira da Silva v. Ross et al

Filing 45

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/17/2022 RECOMMENDING that the 32 Motion to Dismiss be denied and that Defendant be ordered to file and serve a responsive pleading within 14 days after any order adopting these findings and recommendations. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Spichka, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALEXANDRA FERREIRA DA SILVA, 12 Plaintiff, 13 14 No. 2:21-cv-1208-KJM-CKD PS v. FINDINGS AND RECOMMENDATIONS JONATHAN KEVIN ROSS, et al., 15 (ECF No. 32) Defendants. 16 17 Plaintiff proceeds pro se with a civil rights action under 42 U.S.C. § 1983. Defendant’s 18 19 motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is before the court. 20 This matter is appropriate for decision without oral argument. See Local Rule 230(g). For the 21 reasons that follow, the undersigned recommends the motion be denied. 22 I. PROCEDURAL BACKGROUND Plaintiff initiated this action on July 9, 2021. (ECF No. 1.) On October 28, 2021, service 23 24 of plaintiff’s first amended complaint (“FAC”) was found appropriate for defendant, Officer 25 Heidi Morgan, for an alleged unconstitutionally excessive use of force in violation of the 26 Fourteenth Amendment. (ECF No. 13.) On June 17, 2022, defendant moved to dismiss the 27 complaint. (ECF No. 32.) Plaintiff filed an opposition and defendant filed a reply. (ECF Nos. 43, 28 44.) 1 1 II. 2 LEGAL STANDARDS FOR A MOTION TO DISMISS Dismissal under Rule 12(b)(6) may be warranted for “the lack of a cognizable legal theory 3 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica 4 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In evaluating whether a complaint states a claim 5 on which relief may be granted, the court accepts as true the allegations in the complaint and 6 construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 7 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). 8 9 “[R]ecitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a valid claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A 10 complaint must do more than allege mere “labels and conclusions” or “a formulaic recitation of 11 the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In 12 order to state a valid claim for relief, a plaintiff must allege “enough facts to state a claim to relief 13 that is plausible on its face.” Twombly, 550 U.S. at 570. A claim that is plausible on its face has 14 sufficient factual content to allow a reasonable inference that the defendant is liable for the 15 misconduct alleged. Iqbal, 556 U.S. at 678. Courts of this circuit recognize their duty “to ensure that pro se litigants do not lose their 16 17 right to a hearing on the merits of their claim due to ignorance of technical procedural 18 requirements.” Balistreri, 901 F.2d at 699. As such, the pleadings of pro se litigants “are liberally 19 construed, particularly where civil rights claims are involved.” Id. However, a court’s “liberal 20 interpretation of a civil rights complaint may not supply essential elements of [a] claim that were 21 not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 22 III. DISCUSSION 23 A. RELEVANT ALLEGATIONS IN THE COMPLAINT 24 Plaintiff was an ICE detainee at Yuba County jail in March of 2020. (ECF No. 12 at 25.) 25 On March 17, 2020, while escorting plaintiff to the dorm, Officer Morgan struck plaintiff “several 26 times on middle back with her two hands and shoved [plaintiff] through the hallway (from the 27 elevator close to booking until close to the kitchen area).” (Id.) Plaintiff alleges this use of force 28 occurred “without any provocation.” (Id. at 27.) Plaintiff further alleges she sustained an injury: 2 1 “Today I have an injury on my back[.]” (Id. at 25.) 2 B. DEFENDANT’S MOTION TO DISMISS 3 In the motion to dismiss, defendant asserts (1) the FAC fails to state a claim for relief; (2) 4 C/O Morgan is entitled to qualified immunity for the alleged use of force; (3) the FAC fails to 5 state a short and plain statement under Rule 8 of the Federal Rules of Civil Procedure; and (4) 6 plaintiff fails to allege that she complied with the Prison Litigation Reform Act (“PLRA”) by 7 filing/appealing her grievances through the Yuba County Jail system. (ECF No. 32 at 2.) 8 9 1. Legal Standards for the Excessive Force Claim Constitutional questions regarding the conditions and circumstances of plaintiff's 10 confinement are properly raised under the Due Process Clause of the Fourteenth Amendment. See 11 City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Bell v. Wolfish, 441 U.S. 520, 12 535 (1979). The due process rights of detainees who are not convicted prisoners are “at least as 13 great as the Eighth Amendment protections available to a convicted prisoner.” Revere, 463 U.S. 14 at 244. Thus, while the Eighth Amendment provides a minimum standard of care for detainees, 15 plaintiff’s rights while she was detained are determined under the Due Process Clause of the 16 Fourteenth Amendment rather than the Eighth Amendment’s protection against cruel and unusual 17 punishment. Gibson v. County of Washoe, 290 F.3d 1175, 1197 (2001) (overruled on other 18 grounds by Castro v. County of Los Angeles, 833 F.3d 1060 (2016)). 19 The constitution does not prohibit the use of objectively reasonable force by officers. See 20 Tatum v. City & County of San Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006). Whether force 21 used was excessive depends on “whether the officers’ actions [were] ‘objectively reasonable’ in 22 light of the facts and circumstances confronting them, without regard to their underlying intent or 23 motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989); Tatum, 441 F.3d at 1095; Lolli v. 24 County of Orange, 351 F.3d 410, 415 (9th Cir. 2003). The proper inquiry balances the nature and 25 quality of the intrusion against the countervailing governmental interests at stake. Graham, 490 26 U.S. at 396; Lolli, 351 F.3d at 415. The “reasonableness” of a particular use of force must be 27 judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision 28 of hindsight. Graham, 490 U.S. at 396. “‘Not every push or shove, even if it may later seem 3 1 unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Id. (internal 2 quotation marks omitted). 3 4 2. Adequacy of the Claim Pleaded Citing Parker v. City of Los Angeles, 726 Fed. Appx. 546 (9th Cir. 2018), Saucier v. Katz, 5 533 U.S. 194 (2001), and Palacios v. City of Oakland, 970 F. Supp. 732, 740 (N.D. Cal. 1997), 6 defendant argues prior courts have found an officer’s use of a push/shove to be not excessive 7 under 42 U.S.C. § 1983 if the officer used a reasonable amount of force and had a legitimate 8 interest in using the amount of force used. (ECF No. 32-1 at 7-8.) 9 Defendant argues plaintiff’s allegations that defendant used excessive force must be taken 10 along with defendant’s description of the incident in the incident report attached to the FAC. (See 11 ECF No. 32-1 at 1.) Based on plaintiff’s allegations and defendant’s description of the incident, 12 defendant argues, there were two possible uses of force on March 17, 2020: 13 14 15 First, CO Morgan touched Plaintiff’s shoulder to redirect her away from booking and towards the housing unit. Secondly, CO Morgan used an open palm to shove Plaintiff when she stopped in order to keep Plaintiff walking towards the housing unit and away from the male inmates in the holding cell. 16 (Id. at 7.) Defendant argues these can only be described as both minimal and reasonable uses of 17 force under the circumstances. (Id.) 18 Here, though, plaintiff’s allegations need not be taken along with defendant’s version of 19 the incident set forth in the incident report. Although exhibits attached to a complaint are part of 20 the complaint “for all purposes,” Fed. R. Civ. P. 10(c), that does not mean all facts set forth in 21 attachments to a complaint must be treated as true. See Guzell v. Hiller, 223 F.3d 518, 519 (7th 22 Cir. 2000). “A plaintiff in a libel suit who attached the allegedly libelous article to his complaint 23 would obviously not be vouching for the truth of the libelous assertions in the article.” Id. (citing 24 Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 674 (2nd Cir. 1995)). The plaintiff’s purpose in 25 attaching an exhibit to the complaint determines what assertions, if any, in the exhibit are facts 26 the plaintiff has incorporated into the complaint. Guzell, 223 F.3d at 519. 27 28 In this instance, plaintiff attached defendant’s incident narrative to the FAC as an “[o]verview about [defendant’s] accusation.” (See ECF No. 12 at 2, Table of Contents to the 4 1 FAC.) Plaintiff alleged the accusations therein were false. (See id. at 25 (“she falsely accused to 2 disobey order and threaten [plaintiff]; [which] is untrue”).) Therefore, plaintiff “did not vouch for 3 the truth of the statements…, and they cannot be assumed to be true for purposes of ruling on this 4 motion.” Wilson v. Grannis, No. C07-2018 PJH(PR), 2008 WL 4415268, at *3 (N.D. Cal. Sept. 5 26, 2008). 6 7 3. Qualified Immunity Qualified immunity shields government officials from monetary damages unless their 8 conduct violated “clearly established statutory or constitutional rights of which a reasonable 9 person would have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). “In evaluating a 10 grant of qualified immunity, a court considers whether (1) the state actor’s conduct violated a 11 constitutional right and (2) the right was clearly established at the time of the alleged 12 misconduct.” Gordon v. County of Orange, 6 F.4th 961, 967-68 (9th Cir. 2021) (citing Saucier v. 13 Katz, 533 U.S. 194, 200-01 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223 14 (2009)). “[I]f the answer to either [question] is ‘no,’ then the state actor cannot be held liable for 15 damages.” Id. at 968 (citation omitted). 16 Defendant argues the doctrine of qualified immunity shields her from liability because the 17 force used was de minimis. (ECF No. 32-1 at 10.) Defendant argues the force used of grabbing 18 plaintiff’s shoulder or shoving her away from the booking area and away from male inmates, as 19 plaintiff walked to her housing unit, was not clearly established as unlawful at the time of the 20 challenged conduct. (Id.) 21 Liberally construing the FAC, plaintiff alleges defendant struck her several times on the 22 back, without provocation, causing an injury that plaintiff still had when she filed the complaint. 23 (ECF No. 12 at 25, 27.) The court is unable to conclude at this stage, under the first prong, that 24 defendant did not violate plaintiff’s rights under the Fourteenth Amendment. Under the second 25 prong, similarly, unresolved issues of fact prevent a determination of qualified immunity. See 26 Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th Cir. 2003) (“Where the officers’ entitlement 27 to qualified immunity depends on the resolution of disputed issues of fact in their favor, and 28 against the non-moving party, [a grant of qualified immunity] is not appropriate.”). 5 1 2 4. Exhaustion of Remedies under the PLRA Defendant argues plaintiff failed to comply with the PLRA because the FAC does not 3 plead that she filed a grievance at Yuba County Jail and appealed it to the highest level of 4 authority. (ECF No. 32-1 at 11.) Under the Prison Litigation Reform Act of 1995 (“PLRA”), 5 “[n]o action shall be brought with respect to prison conditions under section 1983 of this title… 6 by a prisoner confined in any jail… until such administrative remedies as are available are 7 exhausted.” 42 U.S.C.A. § 1997e (emphasis added). A prisoner or jail inmate must exhaust 8 administrative remedies before bringing suit. McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th 9 Cir. 2002). “[A]n action is ‘brought’ for purposes of § 1997e(a) when the complaint is tendered to 10 the district clerk[.]” Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). Failure to 11 comply with the PLRA’s exhaustion requirement is an affirmative defense that must be raised and 12 proved by the defendant. Jones v. Bock, 549 U.S. 199, 216 (2007). 13 Here, defendant does not assert, and the record does not reflect, that plaintiff was confined 14 in jail or otherwise confined or detained at the time she brought this action. (See generally, ECF 15 No. 1.) Defendant further makes no argument that the exhaustion requirement of the PLRA 16 should be applied to plaintiffs who were no longer confined or detained when they brought the 17 suit. Defendant fails to show the amended complaint should be dismissed due to a failure to 18 comply with the PLRA. See, e.g., Valdivia v. Cnty. of Santa Cruz, No. 08-00916 JF, 2008 WL 19 4065873, at *4 (N.D. Cal. Aug. 27, 2008) (“Because Valdivia had been released from the Santa 20 Cruz County jail prior to bringing the instant suit, he is not subject to 42 U.S.C. § 1997e(a).”) 21 22 5. Rule 8 Defendant next requests that in the event the court is not persuaded by defendant’s other 23 arguments, “that Plaintiff’s complaint contain a short and plain statement pursuant to FRCP Rule 24 8.” (ECF No. 32-1 at 11.) Under Rule 8 of the Federal Rules of Civil Procedure, a complaint must 25 contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” 26 Fed. R. Civ. P. 8(a)(2). “Each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 27 8(d)(1). The policy behind Rule 8’s pleading requirement is to give the defendant fair notice of 28 the claim and the grounds upon which it rests. Leatherman v Tarrant County Narcotics 6 1 Intelligence and Coord Unit, 507 US 163, 168 (1993). 2 Here, the entirety of the FAC totals 203 pages, including a number of exhibits, which 3 appear both before and after the body of the civil rights complaint. (See ECF No. 12, generally.) 4 The body of the civil rights complaint consists of 13 pages, including a blank page. (ECF No. 12 5 at 21-33; see also id. at 1, Table of Contents.) This statement is not so rambling or disorganized 6 that it obscures the nature of the excessive force claim. In addition, requiring defendant to answer 7 a 13-page statement does not place an unjustified burden on defendant or the court. See 8 Salahuddin v Cuomo, 861 F 2d 40, 41 (2nd Cir. 1988) (“unnecessary prolixity… places an 9 unjustified burden on the court and the party who must respond to [the complaint]” (internal 10 quotation marks omitted)); compare, e.g., Grimes v. Fremont Gen. Corp., 933 F. Supp. 2d 584, 11 595 (S.D.N.Y. 2013) (dismissing amended complaint with more than 1000 specifically numbered 12 paragraphs and hundreds of additional un-numbered paragraphs). 13 As to the claim against defendant Morgan, the first amended “complaint fully sets forth 14 who is being sued, for what relief, and on what theory, with enough detail to guide discovery.” 15 McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). Therefore, the motion to dismiss for 16 failure to comply with Rule 8 of the Federal Rules of Civil Procedure should be denied. 17 IV. CONCLUSION AND ORDER 18 In accordance with the above, IT IS RECOMMENDED: 19 1. Defendant’s motion to dismiss (ECF No. 32) be DENIED. 20 2. Defendant be ordered to file and serve a responsive pleading within 14 days after any 21 order adopting these findings and recommendations. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after 24 being served with these findings and recommendations, any party may file written objections with 25 the court and serve a copy on all parties. Such a document should be captioned “Objections to 26 Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be 27 served and filed within fourteen days after service of the objections. The parties are advised that 28 failure to file objections within the specified time may waive the right to appeal the District 7 1 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 2 Dated: November 17, 2022 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 3 4 5 8.Ferr21cv1208.mtd 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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