Ontiveros v. Hayward Police Department

Filing 12

ORDER OF SERVICE AND REFERRING CASE TO PRO SE PRISONER SETTLEMENT PROGRAM; ORDER REFERRING CASE to Magistrate Judge Nandor Vadas for Settlement. Signed by Judge Claudia Wilken on 10/20/08. (scc, COURT STAFF) (Filed on 10/20/2008)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ERIC J. ONTIVEROS, ) ) Plaintiff, ) ) v. ) ) HAYWARD POLICE DEPARTMENT, ) ) Defendant. ) _______________________________ ) No. C 06-02122 CW (PR) ORDER OF SERVICE AND REFERRING CASE TO PRO SE PRISONER SETTLEMENT PROGRAM

INTRODUCTION Plaintiff Eric J. Ontiveros has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983. leave to proceed in forma pauperis. BACKGROUND According to the allegations in the complaint, Plaintiff was subjected to improper force during the course of his arrest. Plaintiff alleges that on May 20, 2004, while he was in a vehicle parked in the driveway of his friend's residence, "two plain unmarked vehicles (vans) immediately surrounded [his] vehicle and 8 to 10 officers jumped out of both vans and immediately attacked [him] while [he] was seated" in his vehicle. (Compl. at 3.) He Plaintiff has been granted

was "shot in [his] body several times" by a taser, but he was "neither resisting nor attempting to flea [sic]." (Id.) The

officers then "forcefully removed [him] from the vehicle and began kicking, punching . . . and shot [him] a few times on [his] back while [he] was on the floor." (Id.) He was also "hit on [his] (Id.) He

left eye and on top of [his] head with a hard object." was then transported by ambulance to a hospital. (Id.)

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Plaintiff states a physician "discovered ten different areas to [his] body" where he had been shot by a taser." Attach., Pl.'s "Accurate Account of Actions" at 2.) (Compl. He was treated

for open wounds above his left eye and on the back of his head. (Id.) Plaintiff also told the physician that he "felt excruciating (Id.)

pain in the neck and body."

Plaintiff seeks monetary damages for his physical and mental injuries. DISCUSSION Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. § 1915A(a). See 28 U.S.C.

In its review, the court must identify cognizable

claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. § 1915A(b)(1),(2). construed. See id.

Pro se pleadings must, however, be liberally

See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, To state a claim under 42 U.S.C. § 1983, a

699 (9th Cir. 1988).

plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. 487 U.S. 42, 48 (1988). II. Excessive Force During Arrest According to the allegations in the complaint, eight to ten officers from the Hayward Police Department used excessive force 2 See West v. Atkins,

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against Plaintiff when they arrested him on May 20, 2004. A claim that a law enforcement officer used excessive force in the course of an arrest or other seizure is analyzed under the Fourth Amendment reasonableness standard. See Graham v. Connor,

490 U.S. 386, 394-95 (1989); Forrester v. City of San Diego, 25 F.3d 804, 806 (9th Cir. 1994), cert. denied, 513 U.S. 1152 (1995). "Determining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of 'the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." (citations omitted). Plaintiff claims that the officers beat him and shot him with a taser several times. Plaintiff alleges that he did not resist Liberally construed, Plaintiff's See Graham, 490 U.S. at 396

arrest or attempt to flee.

complaint states a cognizable Fourth Amendment claim. III. Defendants Liability may be imposed on an individual defendant under § 1983 if the plaintiff can show that the defendant proximately caused the deprivation of a federally protected right. See Leer v.

Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives

another of a constitutional right within the meaning of § 1983 if he does an affirmative act, participates in another's affirmative act or omits to perform an act which he is legally required to do, that causes the deprivation of which the plaintiff complains. Leer, 844 F.2d at 633. The inquiry into causation must be See

individualized and focus on the duties and responsibilities of each 3

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individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation. See id. Sweeping conclusory

allegations will not suffice; the plaintiff must instead "set forth specific facts as to each individual defendant's" violation of his protected rights. Id. at 634.

A supervisor may be liable under § 1983 upon a showing of personal involvement in the constitutional deprivation or a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Redman v. County of San

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

constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." F.2d 1040, 1045 (9th Cir. 1989). Taylor v. List, 880

A supervisor may be liable for

implementing "a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation." Redman, 942 F.2d at 1446; see Jeffers

v. Gomez, 267 F.3d 895, 917 (9th Cir. 2001). A. Municipal Liability Defendant

Plaintiff alleges that the use of force was sanctioned by the policies and practices of the Hayward Police Department. Local

governments are "persons" subject to liability under 42 U.S.C. § 1983 where their official policy or custom causes a constitutional tort, see Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978); however, a city or county may not be held vicariously liable for the unconstitutional acts of its employees

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under the theory of respondeat superior, see Board of County Comm'rs v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). To impose municipal liability under § 1983 for a violation of constitutional rights, a plaintiff must show: (1) that the plaintiff possessed a constitutional right of which he or she was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional rights; and (4) that the policy is the moving force behind the constitutional violation. See Plumeau v. School Dist.

No. 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). Plaintiff contends that the use of excessive force by the Hayward Police Department on May 20, 2004 is an example of its "aggressive actions." (Compl. Attach. at 3.) He claims he filed a

complaint with the Office of Ethical Standards against the Hayward Police Department. (Compl. at 2.) Liberally construed,

Plaintiff's allegations are sufficient to state a cognizable municipal liability claim against the Hayward Police Department. See Galbraith v. County of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 2002) (holding that it is improper to dismiss on the pleadings alone a § 1983 complaint alleging municipal liability even if claim is based on nothing more than bare allegation that individual employee's conduct conformed to official policy, conduct or practice); accord Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168-69 (1993) (allegations of municipal liability do not require heightened pleading standard).

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B.

Doe Defendants

Plaintiff names the "officers of the Hayward Police Dept." as Defendants. He contends that there were eight to ten Hayward These officers are Doe

police officers involved in the encounter.

Defendants whose names he apparently intends to learn through discovery. Circuit. 1980). The use of Doe Defendants is not favored in the Ninth

See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.

However, where the identity of alleged defendants cannot be

known prior to the filing of a complaint, the plaintiff should be given an opportunity through discovery to identify them. Id. See

Failure to afford the plaintiff such an opportunity is error. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). Accordingly, Plaintiff's claims against the Doe Defendants are DISMISSED.

Should Plaintiff learn the identities of the Hayward

police officers who used excessive force against him, he may move for leave to amend to add them as named defendants. See Brass v.

County of Los Angeles, 328 F.3d 1192, 1195-98 (9th Cir. 2003). IV. Pro Se Prisoner Settlement Program This case has been pending for almost three years and the events at issue occurred more than four years ago. If the case

must go to trial even further delay in resolution will be incurred, as will expenses. Having considered all of these factors, the

Court finds that it is in the best interests of the parties and judicial efficiency to refer this action to a Magistrate Judge for court-ordered settlement proceedings. The Northern District of California has established a Pro Se Prisoner Settlement Program. Certain prisoner civil rights cases

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may be referred to a neutral magistrate judge for settlement proceedings. The proceedings will consist of one or more The

conferences as determined by Magistrate Judge Nandor Vadas.

conferences shall be conducted at a location to be determined by Magistrate Judge Vadas with Plaintiff, who has since been released from custody, as well as Defendant and/or the representative for Defendant attending. Good cause appearing, the present case will be REFERRED to Magistrate Judge Vadas for settlement proceedings pursuant to the Pro Se Prisoner Settlement Program. The proceedings shall take

place within ninety (90) days after the date of this Order; or as soon thereafter as is convenient to the magistrate judge's calendar. Magistrate Judge Vadas shall coordinate a time and date

for a settlement proceeding with all interested parties and/or their representatives and, within ten (10) days after the conclusion of the settlement proceedings, file with the Court a report regarding the settlement proceedings. CONCLUSION 1. Plaintiff's complaint states a cognizable excessive force

claim, and a cognizable municipal liability claim against the Hayward Police Department. 2. DISMISSED. Plaintiff's claims against the Doe Defendants are Should Plaintiff learn the identities of the Hayward

police officers who used excessive force against him, he may move for leave to amend to add them as named defendants. F.3d at 1195-98. 3. Plaintiff's action is referred to the Pro Se Prisoner See Brass, 328

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Settlement Program.

The Clerk of the Court shall provide a copy of

the court documents that are not available electronically, including a copy of this Order, to Magistrate Judge Vadas in Eureka, California. 4. The Clerk of the Court shall mail a Notice of Lawsuit and

Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint and all attachments thereto (docket no. 1) and a copy of this Order upon: Police Department. the Hayward

The Clerk of the Court shall also mail copies

of the complaint, supplemental complaint and this Order to the City Attorney of the City of Hayward. Additionally, the Clerk shall

serve a copy of this Order upon Plaintiff. 5. Defendant is cautioned that Rule 4 of the Federal Rules

of Civil Procedure requires Defendant to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant to Rule 4, if Defendant, after being notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, Defendant will be required to bear the cost of such service unless good cause be shown for Defendant's failure to sign and return the waiver form. If service

is waived, this action will proceed as if Defendant had been served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant will not be required to serve and file an answer before sixty (60) days from the date on which the request for waiver was sent. (This allows a longer time to respond than

would be required if formal service of summons is necessary.) Defendant is asked to read the statement set forth at the foot of

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the waiver form that more completely describes the duties of the parties with regard to waiver of service of the summons. If

service is waived after the date provided in the Notice but before Defendant has been personally served, the Answer shall be due sixty (60) days from the date on which the request for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever is later. 6. Defendant shall answer the complaint in accordance with The following briefing

the Federal Rules of Civil Procedure.

schedule shall govern dispositive motions in this action: a. No later than thirty (30) days from the date the

answer is due, Defendant shall file a motion for summary judgment or other dispositive motion. The motion shall be supported by

adequate factual documentation and shall conform in all respects to Federal Rule of Civil Procedure 56. If Defendant is of the opinion

that this case cannot be resolved by summary judgment, Defendant shall so inform the Court prior to the date the summary judgment motion is due. All papers filed with the Court shall be promptly

served on Plaintiff. b. Plaintiff's opposition to the dispositive motion

shall be filed with the Court and served on Defendant no later than thirty (30) days after the date on which Defendant's motion is filed. The Ninth Circuit has held that the following notice should

be given to pro se plaintiffs facing a summary judgment motion: The defendants have made a motion for summary judgment by which they seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case.

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Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact -- that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted [in favor of the defendants], your case will be dismissed and there will be no trial. See Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come forward with evidence showing triable issues of material fact on every essential element of his claim). Plaintiff is cautioned that because he bears the

burden of proving his allegations in this case, he must be prepared to produce evidence in support of those allegations when he files his opposition to Defendant's dispositive motion. Such evidence

may include sworn declarations from himself and other witnesses to the incident, and copies of documents authenticated by sworn declaration. Plaintiff will not be able to avoid summary judgment

simply by repeating the allegations of his complaint. c. If Defendant wishes to file a reply brief, Defendant

shall do so no later than fifteen (15) days after the date

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Plaintiff's opposition is filed. d. The motion shall be deemed submitted as of the date No hearing will be held on the motion

the reply brief is due.

unless the Court so orders at a later date. 7. Discovery may be taken in this action in accordance with Leave of the Court pursuant

the Federal Rules of Civil Procedure.

to Rule 30(a)(2) is hereby granted to Defendant to depose Plaintiff and any other necessary witnesses confined in prison. 8. All communications by Plaintiff with the Court must be

served on Defendant, or Defendant's counsel once counsel has been designated, by mailing a true copy of the document to Defendant or Defendant's counsel. 9. It is Plaintiff's responsibility to prosecute this case.

Plaintiff must keep the Court informed of any change of address and must comply with the Court's orders in a timely fashion. 10. Extensions of time are not favored, though reasonable Any motion for an extension of time

extensions will be granted.

must be filed no later than fifteen (15) days prior to the deadline sought to be extended. IT IS SO ORDERED. DATED: 10/20/08 CLAUDIA WILKEN United States District Judge

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Eric J. Ontiveros 1780 A St., Apt. #11 Castro Valley, CA 94546 v. ERIC J. ONTIVEROS, Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV06-02122 CW CERTIFICATE OF SERVICE

HAYWARD POLICE DEPARTMENT et al, Defendant. /

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 20, 2008, 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.

Magistrate Judge Nador Vadas U.S. District Court 514 H Street P.O. Box 1306 Eureka, CA 95502 Dated: October 20, 2008 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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