Davis v. Suhr et al

Filing 20

ORDER OF DISMISSAL WITH LEAVE TO AMEND by Judge James Donato denying 17 Motion to Appoint Counsel. (lrcS, COURT STAFF) (Filed on 11/16/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN L. DAVIS,
Plaintiff,

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
GREG SUHR, et al.,

Dkt. No. 17

Defendants.

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United States District Court
Northern District of California

Case No. 16-cv-04487-JD

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Plaintiff, a detainee, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He
has been granted leave to proceed in forma pauperis.
DISCUSSION

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STANDARD OF REVIEW

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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). 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. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by
the Constitution or laws of the United States was violated, and (2) the alleged deprivation was
committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

United States District Court
Northern District of California

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LEGAL CLAIMS

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Plaintiff alleges that he was the victim of a false arrest and was improperly treated in jail.

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He seeks money damages. In order to recover damages for an allegedly unconstitutional

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conviction or imprisonment, or for other harm caused by actions whose unlawfulness would

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render a conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction

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or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a

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state tribunal authorized to make such determination, or called into question by a federal court’s

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issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). A claim

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for damages bearing that relationship to a conviction or sentence that has not been so invalidated is

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not cognizable under § 1983. Id. at 487.

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In Wallace v. Kato, 549 U.S. 384, 393 (2007), the Court held that the “Heck rule for

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deferred accrual is called into play only when there exists ‘a conviction or sentence that has not

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been . . . invalidated,’ that is to say, an ‘outstanding criminal judgment.’” Id. at 391-93 (quoting

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Heck, 512 U.S. at 486-87). The Heck rule delays accrual only if there is an existing conviction on

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the date the statute of limitations begins to run, which in the case of wrongful arrest or wrongful

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imprisonment claims is when the plaintiff's confinement is no longer without legal process, but

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rather becomes a confinement pursuant to legal process – that is, for example, when he or she is

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bound over by a magistrate or arraigned on charges. Id. at 389-90. The Court stated that the
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contention that “an action which would impugn an anticipated future conviction cannot be brought

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until that conviction occurs and is set aside” goes “well beyond Heck” and rejected it. Id. at 393

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(italics in original). Although the Court was only considering when the statute of limitations

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began running on a false arrest/false imprisonment claim, the discussion quoted suggests that Heck

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does not apply if there is no extant conviction – for instance, if plaintiff has only been arrested or

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charged.

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If a plaintiff files a § 1983 false arrest claim before he or she is convicted, or files any other
claim related to rulings that likely will be made in a pending or anticipated criminal trial, it is

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within the power of the district court, and accords with common practice, to stay the civil action

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until the criminal case or the likelihood of a criminal case is ended. Id. at 393-94. If the plaintiff

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United States District Court
Northern District of California

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is then convicted, and if the stayed civil suit would impugn that conviction, Heck requires

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dismissal; otherwise, the case may proceed. Id. at 394.

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When a pretrial detainee challenges conditions of his confinement, the proper inquiry is

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whether the conditions amount to punishment in violation of the Due Process Clause of the

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Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). “‘[T]he State does

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not acquire the power to punish with which the Eighth Amendment is concerned until after it has

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secured a formal adjudication of guilt in accordance with due process of law. Where the State

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seeks to impose punishment without such an adjudication, the pertinent guarantee is the Due

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Process Clause of the Fourteenth Amendment.’” Id. (quoting Ingraham v. Wright, 430 U.S. 651,

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671-72 n.40 (1977)).

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The state may detain a pretrial detainee “to ensure his presence at trial and may subject him

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to the restrictions and conditions of the detention facility so long as those conditions and

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restrictions do not amount to punishment or otherwise violate the Constitution.” Id. at 536-37. If

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a particular condition or restriction of pretrial detention is reasonably related to a legitimate

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governmental objective it does not, without more, amount to “punishment”. See id. at 539; cf.

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Wagner v. County of Maricopa, 701 F.3d 583, 589 (9th Cir. 2012) (remanding to trial court to

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determine whether the unexplained procedure of “dressing-out” a detainee, known to be in need of

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psychiatric treatment, from civilian clothes to jail garb, which included wearing pink underwear,
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was punishment without legal justification when detainee believed he was being raped and

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humiliated). For example, states must be able to take steps to maintain security and order at

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pretrial facilities, and restraints that are reasonably related to a facility's interest in maintaining jail

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security are not, without more, unconstitutional punishment. See Bell v. Wolfish, 441 U.S. at 540.

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The exact nature of plaintiff’s complaint is difficult to discern. It appears that plaintiff was

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arrested by San Francisco Police Officers for a domestic violence incident. He argues that his

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arrest was unfounded and the police targeted him due to his race. It appears that the charges are

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still pending; therefore, plaintiff cannot proceed with a case to obtain money damages until the

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case has been resolved.

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Plaintiff also argues that his wife framed him in order to obtain their house and she took a

United States District Court
Northern District of California

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term life insurance policy out on him because she conspired with the police to have him killed.

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Plaintiff has failed to demonstrate that his wife’s actions were committed under color of state law.

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If plaintiff cannot demonstrate that his wife was a state actor he cannot proceed with a § 1983

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action against her.

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Plaintiff also alleges that his rights were violated while being held in the jail psychiatric

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unit. However, he provides no specific allegations regarding the improper treatment, instead just

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arguing that his rights were violated. This is insufficient to state a claim. The complaint is

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dismissed with leave to amend to address the deficiencies discussed above. Plaintiff must identify

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specific defendants and describe how they violated his constitutional rights. Conclusory

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allegations are insufficient. Plaintiff must also describe the status of the criminal case against him

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and he must present allegations that his wife was a state actor.

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Plaintiff has also requested the appointment of counsel. The Ninth Circuit has held that a

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district court may ask counsel to represent an indigent litigant only in “exceptional

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circumstances,” the determination of which requires an evaluation of both (1) the likelihood of

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success on the merits, and (2) the ability of the plaintiff to articulate his claims pro se in light of

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the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991). Plaintiff appears able to present his claims adequately, and the issues are not complex.

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Therefore, the motion to appoint counsel will be denied.
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CONCLUSION

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The complaint is DISMISSED with leave to amend. The amended complaint must

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be filed within twenty-eight (28) days of the date this order is filed and must include the caption

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and civil case number used in this order and the words AMENDED COMPLAINT on the first

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page. Because an amended complaint completely replaces the original complaint, plaintiff must

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include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to

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amend within the designated time will result in the dismissal of this case.

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The motion to appoint counsel (Docket No. 17) is DENIED.

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It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

United States District Court
Northern District of California

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Court informed of any change of address by filing a separate paper with the clerk headed “Notice

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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: November 16, 2016

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN L. DAVIS,

Case No. 16-cv-04487-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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GREG SUHR, et al.,
Defendants.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on November 16, 2016, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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John L. Davis
16664426
850 Bryant Street
San Francisco, CA 94103

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Dated: November 16, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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