Collett v. Russell et al

Filing 10

ORDER OF PARTIAL SERVICE Habeas Answer or Dispositive Motion due by 6/27/2014.. Signed by Magistrate Judge Kandis A. Westmore on 4/25/14. (Attachments: # 1 Certificate/Proof of Service)(sisS, COURT STAFF) (Filed on 4/28/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RONALD DOUGLAS COLLETT,

Case No. C 14-0857 KAW (PR)

Plaintiff,
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v.

ORDER OF PARTIAL SERVICE

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SGT. RUSSELL and ALAMEDA COUNTY
SHERIFF’S DEPARTMENT,
Defendants.

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United States District Court
Northern District of California

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Plaintiff Ronald Douglas Collett, a prisoner incarcerated at Santa Rita County Jail, has

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filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging the violation of his

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constitutional rights by Alameda County Sheriff Sergeant Russell and the Alameda County

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Sheriff’s Department. Plaintiff has consented to the jurisdiction of the undersigned United States

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Magistrate Judge over this action. Plaintiff has filed a motion for leave to proceed in forma

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pauperis (“IFP”) with a completed IFP application, which is granted in a separate order. The

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Court now addresses the claims asserted in Plaintiff’s complaint.

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DISCUSSION
I.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks

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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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that 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. § 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. 1988).

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To state a claim under 42 U.S.C. § 1983, a 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

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the alleged violation was committed by a person acting under the color of state law. West v.

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Atkins, 487 U.S. 42, 48 (1988).
Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the

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plaintiff can show that the defendant’s actions both actually and proximately caused the

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deprivation of a federally protected right. Lemire v. Caifornia Dep’t of Corrections &

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Rehabilitation, 726 F.3d 1062, 1074 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.

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

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another of a constitutional right within the meaning of § 1983 if he does an affirmative act,

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participates in another's affirmative act or omits to perform an act which he is legally required to

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do, that causes the deprivation of which the plaintiff complains. Leer, 844 F.2d at 633. Under no

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United States District Court
Northern District of California

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circumstances is there respondeat superior liability under § 1983. Lemire, 726 F.3d at 1074. Or,

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in layman's terms, under no circumstances is there liability under § 1983 solely because one is

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responsible for the actions or omissions of another. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984).

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A supervisor may be liable under § 1983 upon a showing of (1) personal involvement in the

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constitutional deprivation or (2) a sufficient causal connection between the supervisor's wrongful

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conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir.

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2012). It is insufficient for a plaintiff only to allege that supervisors knew about the constitutional

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violation and that they generally created policies and procedures that led to the violation, without

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alleging “a specific policy” or “a specific event” instigated by them that led to the constitutional

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violation. Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012).

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II.

Plaintiff’s Claims
In his complaint, Plaintiff alleges the following. On September 11, 2013, Plaintiff was at

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his mother’s house. He was told by several people that the Sheriff’s Department was going to

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make an example of him, by beating him. When Sgt. Russell arrived at Plaintiff’s mother’s house,

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Plaintiff tried to hide from him. But Sgt. Russell found Plaintiff, ordered him to lie on his

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stomach, and then brutally beat him.
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An allegation of the use of excessive force by a law enforcement officer in effectuating an

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arrest states a valid claim under 42 U.S.C. § 1983. Rutherford v. City of Berkeley, 780 F.2d 1444,

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1447 (9th Cir. 1986), overruled on other grounds by Graham v. Connor, 490 U.S. 386 (1989).

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Excessive force claims which arise in the context of an arrest or investigatory stop of a free citizen

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are analyzed under the Fourth Amendment reasonableness standard. Graham v. Connor, 490 U.S.

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386, 394-95 (1989).

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Liberally construed, Plaintiff’s complaint alleges a Fourth Amendment claim against Sgt.
Russell. However, he does not state a claim against the Alameda County Sheriff’s Department.
Local governments are "persons" subject to liability under 42 U.S.C. § 1983 where official
policy or custom causes a constitutional tort, see Monell v. Dep't of Social Servs., 436 U.S. 658,

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United States District Court
Northern District of California

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690 (1978); however, a city or county may not be held vicariously liable for the unconstitutional

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acts of its employees under the theory of respondeat superior, see Board of Cty. Comm'rs of Bryan

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Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691. To impose municipal liability

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under § 1983 for a violation of constitutional rights, a plaintiff must show: (1) that the plaintiff

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possessed a constitutional right of which he or she was deprived; (2) that the municipality had a

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policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional rights;

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and (4) that the policy is the moving force behind the constitutional violation. Plumeau v. School

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Dist. #40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997).

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Plaintiff’s complaint fails to state a claim against the Sheriff’s Department because he does

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not allege that the Sheriff’s Department had a policy which amounts to deliberate indifference to

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his Fourth Amendment rights and that the policy was the moving force behind the Fourth

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Amendment violation. Therefore, the claim against the Alameda County Sheriff’s Department is

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dismissed with leave to amend for Plaintiff to remedy this deficiency, if he truthfully can do so.
CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1. Plaintiff states a cognizable Fourth Amendment claim for excessive force in his arrest

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against Alameda Sheriff’s Sgt. Russell.
2. Plaintiff’s Fourth Amendment claim against the Alameda County Sheriff’s Department
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is dismissed with leave to amend. Plaintiff may file an amended complaint remedying the

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deficiencies noted above within twenty-one days from the date of this Order. The amended

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complaint must include the caption and civil case number used in this Order and the words

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AMENDED COMPLAINT on the first page. Because an amended complaint completely replaces

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the original complaint, Plaintiff must include in it all the claims he wishes to present. See Ferdik

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v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the

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original complaint by reference. If Plaintiff does not file an amended complaint within the

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designated timeframe, his claims against the Sheriff’s Department will be dismissed without leave

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to amend and his claim against Sgt. Russell will proceed in accordance with the schedule set forth

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United States District Court
Northern District of California

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below.
3. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of

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Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint

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(docket no. 1) and all attachments thereto, a copy of this Order and a copy of the form “Consent or

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Declination to Magistrate Judge Jurisdiction” to Alameda County Sheriff Sgt. Russell. A courtesy

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copy of the complaint with attachments and this Order shall also be mailed to the Alameda County

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Counsel’s Office.

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4. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure require

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him to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant

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to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of

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Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of

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such service unless good cause be shown for their failure to sign and return the waiver forms. If

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service is waived, this action will proceed as if Defendants had been served on the date that the

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waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve

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and file an answer before sixty days from the date on which the request for waiver was sent. (This

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allows a longer time to respond than would be required if formal service of summons is

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necessary.)

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Defendants are advised to read the statement set forth at the foot of the waiver form that
more completely describes the duties of the parties with regard to waiver of service of the
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summons. If service is waived after the date provided in the Notice but before Defendants have

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been personally served, the answer shall be due sixty days from the date on which the request for

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waiver was sent or twenty days from the date the waiver form is filed, whichever is later.

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5. Defendants shall file their Consent or Declination to Magistrate Judge Jurisdiction on or
before the date their answer is due.
6. Defendants shall answer the complaint in accordance with the Federal Rules of Civil
Procedure. The following briefing schedule shall govern dispositive motions in this action:
a. No later than thirty days from the date his answer is due, Defendants shall file a

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motion for summary judgment or other dispositive motion. If Defendants file a motion for
summary judgment, it shall be supported by adequate factual documentation and shall conform in

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United States District Court
Northern District of California

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all respects to Federal Rule of Civil Procedure 56. If Defendants are of the opinion that this case

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cannot be resolved by summary judgment, they shall so inform the Court prior to the date the

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summary judgment motion is due. All papers filed with the Court shall be promptly served on

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Plaintiff.

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At the time of filing the motion for summary judgment or other dispositive motion,

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Defendants shall comply with the Ninth Circuit’s decisions in Woods v. Carey, 684 F.3d 934 (9th

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Cir. 2012), and Stratton v. Buck, 697 F.3d 1004 (9th Cir. 2012), and provide Plaintiff with notice

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of what is required of him to oppose a summary judgment motion or a motion to dismiss for

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failure to exhaust administrative remedies.

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b. Plaintiff’s opposition to the motion for summary judgment or other dispositive

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motion shall be filed with the Court and served on Defendants no later than twenty-eight days

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after the date on which Defendants’ motion is filed.

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Before filing his opposition, Plaintiff is advised to read the notice that will be provided to

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him by Defendants when the motion is filed, and Rule 56 of the Federal Rules of Civil Procedure

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and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come

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forward with evidence showing triable issues of material fact on every essential element of his

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claim). Plaintiff is cautioned that because he bears the burden of proving his allegations in this

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case, he must be prepared to produce evidence in support of those allegations when he files his
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opposition to Defendants’ summary judgment motion. Such evidence may include sworn

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declarations from himself and other witnesses to the incident, and copies of documents

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authenticated by sworn declaration. Plaintiff will not be able to avoid summary judgment simply

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by repeating the allegations of his complaint.
c. Defendants shall file a reply brief no later than fourteen days after the date

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Plaintiff’s opposition is filed.
d. The motion shall be deemed submitted as of the date the reply brief is due. No

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hearing will be held on the motion unless the Court so orders at a later date.
7. Discovery may be taken in this action in accordance with the Federal Rules of Civil
Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to

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United States District Court
Northern District of California

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depose Plaintiff and any other necessary witnesses confined in prison.

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8. All communications by Plaintiff with the Court must be served on Defendants, or

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Defendants’ counsel once counsel has been designated, by mailing a true copy of the document to

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Defendants or their counsel.

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

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

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

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

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Procedure 41(b).

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10. Extensions of time are not favored, though reasonable extensions will be granted. Any

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motion for an extension of time must be filed no later than seven days prior to the deadline sought

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to be extended.

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IT IS SO ORDERED.
Dated: 4/25/14
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KANDIS A. WESTMORE
UNITED STATES MAGISTRATE JUDGE

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