Smith v. Ruff et al

Filing 8

ORDER of Dismissal with Leave to Amend. Signed by Judge Edward M. Chen on 4/4/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 4/4/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IRA LEE SMITH,

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Plaintiff,
v.

ORDER OF DISMISSAL WITH LEAVE
TO AMEND

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For the Northern District of California

United States District Court

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No. C-11-5784 EMC (pr)

WARREN RUPF, Sheriff, et al.,

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Defendants.
___________________________________/

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I.

INTRODUCTION

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Ira Lee Smith, formerly an inmate at the Alameda County Santa Rita Jail in Dublin, filed this

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pro se civil rights action under 42 U.S.C. § 1983. His complaint is now before the Court for review

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under 28 U.S.C. § 1915A.

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II.

BACKGROUND

In his complaint, Smith alleges several claims. Smith alleges that police officers used force

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when they arrested him on October 22, 2008. He alleges that Alameda County deputy sheriff Terrill

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approached him at 1:15 p.m. on October 22, 2008, and asked him about drugs and weapons. Smith

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told Terrill that he had just found a knife but had no drugs. Deputy Terrill told him to turn around to

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be handcuffed, and Smith responded by grabbing hold of a fence. Deputy Terrill tried to grab hold

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of Smith's arm, and then called for assistance. Several police cars arrived bearing more deputies.

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Deputy sheriffs John Doe #1, John Doe #2, and Jane Doe #1 attempted to pull Smith away from the

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fence by pulling at him, twisting his wrist and arm, and ramming him with a knee while telling him

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to stop resisting, but Smith continued to hold on to the fence. Deputy Terrill was talking to other

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deputies who had arrived, and apparently did not take part in the effort to separate Smith from the

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fence. Eventually Smith let go of the fence, and then was handcuffed, put in the back seat of deputy

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Terrill's patrol car and taken to the Martinez Detention Facility. Smith alleges that Terrill told him

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in the patrol car or at the jail that he thought Smith was on parole, and Smith responded that he had

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been off parole since 2005. Deputy Terrill modified his police report.

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At the Martinez Detention Facility, his remaining jewelry was taken from him when he was

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booked. He was not advised of his Miranda rights when he was booked into the jail – but also does

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not allege that he was interrogated by anyone. He was interviewed by a classification deputy who

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told him he would be put in administrative segregation.

sergeant Vannoy wanted to talk to him. After the interview was underway, the questioning stopped

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For the Northern District of California

On October 25, he was called out of his housing unit because detective Jason Vorhauer and

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United States District Court

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when the detective realized his tape recorder was not on. The detective advised Smith of his

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Miranda rights and started the interview again. Sergeant Vannoy told Smith he was "not to be

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anywhere near that hill, meaning up in San Pablo, California, off of the San Pablo Damn (sic)

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Road." Complaint, p. 7.

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Smith was arraigned on October 27, 2008. Smith contends that he was not timely arraigned

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before a magistrate, but does not identify who caused the delay. He provides no details as to when

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he was arraigned. He also contends his property was not returned upon request.

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III.

DISCUSSION

A federal court must engage in a preliminary screening of any case in which a prisoner seeks

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

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§ 1915A(a). In its review the Court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b). Pro se

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pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699

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(9th Cir. 1990).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right
secured by the Constitution or laws of the United States was violated and (2) that the violation was

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committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48

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(1988).

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The complaint fails to state a claim upon which relief may be granted against any of the

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defendants. Smith described in detail the circumstances of his arrest. Those circumstances do not

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suggest the use of excessive force, as his allegations show that force was used on him only in

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response to his efforts to resist being handcuffed. A claim that a law enforcement officer used

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excessive force in the course of an arrest or other seizure is analyzed under the Fourth Amendment

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reasonableness standard. See Graham v. Connor, 490 U.S. 386, 394-95 (1989); Forrester v. City of

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San Diego, 25 F.3d 804, 806 (9th Cir. 1994). "Determining whether the force used to effect a
particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of '"the

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For the Northern District of California

United States District Court

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nature and quality of the intrusion on the individual's Fourth Amendment interests"' against the

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countervailing governmental interests at stake." See Graham, 490 U.S. at 396 (citations omitted).

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Leave to amend will be granted so that Smith may attempt to allege facts that are suggestive of

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excessive force during the course of his arrest.

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Smith did not allege that force was used by the one deputy (i.e., Terrill) that he identified by

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name. Normally, an officer who does not use force on an arrestee does not have liability; however,

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an officer may have liability based on failure to intervene to prevent a constitutional violation if that

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officer had a reasonable opportunity to intervene to prevent the violation. See Cunningham v. Gates,

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229 F.3d 1271, 1289 (9th Cir. 2000). In his amended complaint, Smith may attempt to allege facts

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showing a basis for liability for defendant Terrill.

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Smith also needs to address the Doe defendant problem in his excessive force claim. The

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deputies who allegedly used force on him were sued as John and Jane Doe defendants. The use of

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"Jane Doe" or "John Doe" to identify a defendant is not favored in the Ninth Circuit, see Gillespie v.

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Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), but sometimes is necessary when a plaintiff cannot

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discover the identity of the defendant before filing the complaint. Although the use of a Doe

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defendant designation is acceptable to withstand dismissal of a complaint at the initial review stage,

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using a Doe defendant designation creates its own problem: that person cannot be served with

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process until he or she is identified by his or her real name. Smith must take steps promptly to

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discover the full name (i.e., first and last name) of John Doe #1, John Doe #2 and Jane Doe #1 and

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provide that information to the Court in his amended complaint. The burden remains on the Plaintiff

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to identify the Doe defendants in order to prosecute claims against them; the Court will not

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undertake to investigate the names and identities of unnamed Defendants.

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Smith alleged that he was booked into the jail without having been advised of his Miranda

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rights. The failure to provide Miranda rights upon arrest is inconsequential if the arrestee is not

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subjected to a custodial interrogation.

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Smith also alleged that a few days later he was interviewed by a detective and a sergeant,
who provided a Miranda advisement only after the interview began. It is not clear from Smith as to
how much questioning was done before the Miranda advisement was given. The facts alleged by

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For the Northern District of California

United States District Court

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Smith do not state a § 1983 claim. Even compulsive questioning in violation of Miranda v. Arizona,

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384 U.S. 436 (1966), does not violate the Fifth Amendment and give rise to a 42 U.S.C. § 1983

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claim for damages unless those statements are used in a criminal case against the defendant. Chavez

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v. Martinez, 538 U. S. 760, 766-73 (2003). The claim is dismissed with leave to amend so that

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Smith may attempt to allege facts showing more than that he did not receive Miranda warnings until

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after the interview started.

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Smith also alleged that his arraignment was delayed. He has not linked any defendant to this

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claim, and must do so in his amended complaint. He must be careful to allege facts showing the

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basis for liability for each defendant. He should not refer to them as a group (e.g., "the defendants");

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rather, he should identify each involved Defendant by name (or by a Doe defendant designation) and

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link each of them to his claim by explaining what each involved Defendant did or failed to do that

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caused a violation of his rights. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Smith named Sheriff Rupf as a Defendant and alleged that he "is responsible for his deputies'

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misconduct." Docket # 1, p. 7. The allegation fails to state a cognizable § 1983 claim against this

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defendant. There is no respondeat superior liability under § 1983, i.e. no liability under the theory

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that one is liable simply because he employs a person who has violated plaintiff's rights. See Taylor

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v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Monell v. Dep't of Social Servs., 436 U.S. 658,

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691 (1978) (no respondeat superior liability for municipalities). A supervisor may be liable under

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section 1983 upon a showing of (1) personal involvement in the constitutional deprivation or (2) a

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sufficient causal connection between the supervisor's wrongful conduct and the constitutional

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violation. See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011); Redman v. County of San Diego,

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942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). A supervisor therefore generally "is only liable for

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constitutional violations of his subordinates if the supervisor participated in or directed the

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violations, or knew of the violations and failed to act to prevent them." Taylor, 880 F.2d 1040,

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1045 (9th Cir. 1989). In his amended complaint, Smith must allege facts showing a basis for

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liability for Sheriff Rupf.

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IV.

CONCLUSION

The complaint fails to state a claim upon which relief may be granted against any Defendant.

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For the Northern District of California

United States District Court

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Leave to amend will be granted so that Smith may attempt to state a claim. The amended complaint

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must be filed no later than May 18, 2012, and must include the caption and civil case number used

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in this order and the words AMENDED COMPLAINT on the first page. Smith is cautioned that his

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amended complaint must be a complete statement of his claims and will supersede existing

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pleadings. See London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981) ("a plaintiff

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waives all causes of action alleged in the original complaint which are not alleged in the amended

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complaint.") Failure to file the amended complaint by the deadline will result in the dismissal of the

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action.

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IT IS SO ORDERED.

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Dated: April 4, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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