Hudson v. Richmond Police Department

Filing 40

ORDER 37 38 (Illston, Susan) (Filed on 7/28/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TORIANO GERMAINE HUDSON,

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Plaintiff,

United States District Court
For the Northern District of California

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No. C 15-787 SI (pr)
ORDER

v.
RICHMOND POLICE DEPARTMENT;
et al.,
Defendants.
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In this pro se prisoner's civil rights action, plaintiff claims that he was subjected to

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excessive force during his January 17, 2014 arrest by members of the Richmond Police

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Department after he caused a car accident. The court screened the complaint pursuant to 28

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U.S.C. § 1915A, determined that plaintiff had stated a cognizable excessive force claim against

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the seven individual members of the Richmond Police Department, and dismissed the Richmond

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Police Department because plaintiff did not adequately allege a basis for municipal liability. See

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Docket # 8 at 2-3. The court ordered service of process on the individual defendants. Id. at 3.

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The individual defendants have appeared and obtained an extension of the deadline to file

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dispositive motions; the current deadline for dispositive motions set for October 2, 2015. Docket

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# 34. The court denied plaintiff's first motion for appointment of counsel. See Docket # 8 at 3.

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This matter is now before the court for consideration of several miscellaneous requests.

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Plaintiff has filed a motion to amend his complaint to reinstate the Richmond Police

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Department as a defendant, urging that the Richmond Police Department should be held liable

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because the individual officers "were all working for an[d] in the line of duty R.P.D. under their
policy as officers on duty for the City of Richmond." Docket # 37 at 1.

Plaintiff's motion to amend fails for both procedural and substantive reasons. First, the

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motion is procedurally deficient because plaintiff did not attach a proposed amended complaint.

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Federal Rule of Civil Procedure 15(a) provides that leave to amend should be freely given when

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justice so requires but the court cannot make that determination without seeing the proposed new

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pleading. See Lake v. Arnold, 232 F.3d 360, 374 (3d Cir. 2000) ("Obviously, without this draft

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complaint, the District Court cannot evaluate the merits of a plaintiff's request . . . [T]he court

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had nothing upon which to exercise its discretion.") Second, even if the court construed the

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motion to amend to be a proposed amendment to the complaint or otherwise overlooked the

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failure to attach a proposed amended complaint, the motion fails to show a basis of liability for

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United States District Court
For the Northern District of California

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the Richmond Police Department. As the court explained in the order of service, the Richmond

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Police Department cannot be held liable under § 1983 on a theory that it is responsible for the

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actions or omissions of its employees (i.e., respondeat superior liability) and that certain

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allegations were necessary to show a basis for municipal liability under § 1983. See Docket #

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8 at 2-3. The Richmond Police Department is not liable simply because it employed the alleged

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wrongdoers. And plaintiff's mere mention of the word "policy" in his motion to amend does not

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suffice to plead municipal liability against the Richmond Police Department. See AE v. County

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of Tulare, 666 F.3d 631, 636-38 (9th Cir. 2012) (for municipal liability, a plaintiff must plead

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sufficient facts regarding the specific nature of any alleged policy, custom or practice to allow

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the defendant to effectively defend itself, and these facts must plausibly suggest that plaintiff is

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entitled to relief). Accordingly, plaintiff's motion to amend is DENIED. Docket # 37.

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Plaintiff has filed a renewed motion to proceed in forma pauperis. The renewed motion

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to proceed in forma pauperis is DENIED as unnecessary. Docket # 38. Once the court has

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granted permission for a plaintiff to proceed in forma pauperis – as the court did on April 22,

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2015 (see Docket # 7) – it is unnecessary for a plaintiff to ask for permission again to proceed

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in forma pauperis. Plaintiff's in forma pauperis status continues for the life of the case in the

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district court unless revoked.

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Plaintiff has sent the court a letter stating that he has "suffered a mental breakdown and

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is not mentally prepared to proceed in this case without the help of court appointed counsel."
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Docket # 35. Defendants have filed a response in which they suggest that plaintiff's alleged

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mental impairment is questionable because (a) plaintiff does not explain why he had sufficient

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mental awareness to file this action in February 2015 but is now unable to proceed, and (b)

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plaintiff made a similar claim in his criminal trial, which the court rejected as malingering and

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so instructed the jury. Docket # 36 at 1-2. The court construes the letter as a renewed request

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for appointment of counsel; upon due consideration of the request and the materials in the court

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file, the court DENIES plaintiff's request for appointment of counsel. Docket # 35. A district

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court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an

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indigent civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328,

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United States District Court
For the Northern District of California

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1331 (9th Cir. 1986). This requires an evaluation of both the likelihood of success on the merits

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and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal

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issues involved. See id. Neither of these factors is dispositive and both must be viewed together

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before deciding on a request for counsel under § 1915(e)(1). Here, exceptional circumstances

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requiring the appointment of counsel are not evident. Plaintiff has presented a straightforward

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excessive force claim that appears to be neither legally nor factually complex, and plaintiff has

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adequately articulated his position in his several filings.

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unpersuaded by plaintiff's claim of a "mental break down" – plaintiff's letter in which he

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purported to be unprepared to proceed without counsel was followed just a few days later by a

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motion to amend the complaint, further suggesting that he is doing just fine pursuing his claim

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pro se.

Like defendants, the court is

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Finally, if plaintiff genuinely feels unable to proceed with his case pro se at this time, he

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may file a motion for a voluntary dismissal, so that the action can be dismissed without prejudice

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to him filing a new action at a later date when he feels more confident in his ability to represent

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himself or finds an attorney willing to represent him.

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IT IS SO ORDERED.
Dated: July 28, 2015

_______________________
SUSAN ILLSTON
United States District Judge

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