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)

Download PDF
1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 RONALD DOUGLAS COLLETT, Case No. C 14-0857 KAW (PR) Plaintiff, 6 v. ORDER OF PARTIAL SERVICE 7 8 SGT. RUSSELL and ALAMEDA COUNTY SHERIFF’S DEPARTMENT, Defendants. 9 10 United States District Court Northern District of California 11 Plaintiff Ronald Douglas Collett, a prisoner incarcerated at Santa Rita County Jail, has 12 filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging the violation of his 13 constitutional rights by Alameda County Sheriff Sergeant Russell and the Alameda County 14 Sheriff’s Department. Plaintiff has consented to the jurisdiction of the undersigned United States 15 Magistrate Judge over this action. Plaintiff has filed a motion for leave to proceed in forma 16 pauperis (“IFP”) with a completed IFP application, which is granted in a separate order. The 17 Court now addresses the claims asserted in Plaintiff’s complaint. 18 19 20 DISCUSSION I. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner seeks 21 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 23 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 24 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 25 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 26 Cir. 1988). 27 28 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 1 the alleged violation was committed by a person acting under the color of state law. West v. 2 Atkins, 487 U.S. 42, 48 (1988). Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the 3 plaintiff can show that the defendant’s actions both actually and proximately caused the 5 deprivation of a federally protected right. Lemire v. Caifornia Dep’t of Corrections & 6 Rehabilitation, 726 F.3d 1062, 1074 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 7 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives 8 another of a constitutional right within the meaning of § 1983 if he does an affirmative act, 9 participates in another's affirmative act or omits to perform an act which he is legally required to 10 do, that causes the deprivation of which the plaintiff complains. Leer, 844 F.2d at 633. Under no 11 United States District Court Northern District of California 4 circumstances is there respondeat superior liability under § 1983. Lemire, 726 F.3d at 1074. Or, 12 in layman's terms, under no circumstances is there liability under § 1983 solely because one is 13 responsible for the actions or omissions of another. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 14 1989); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984). 15 A supervisor may be liable under § 1983 upon a showing of (1) personal involvement in the 16 constitutional deprivation or (2) a sufficient causal connection between the supervisor's wrongful 17 conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir. 18 2012). It is insufficient for a plaintiff only to allege that supervisors knew about the constitutional 19 violation and that they generally created policies and procedures that led to the violation, without 20 alleging “a specific policy” or “a specific event” instigated by them that led to the constitutional 21 violation. Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012). 22 23 24 II. Plaintiff’s Claims In his complaint, Plaintiff alleges the following. On September 11, 2013, Plaintiff was at 25 his mother’s house. He was told by several people that the Sheriff’s Department was going to 26 make an example of him, by beating him. When Sgt. Russell arrived at Plaintiff’s mother’s house, 27 Plaintiff tried to hide from him. But Sgt. Russell found Plaintiff, ordered him to lie on his 28 stomach, and then brutally beat him. 2 1 An allegation of the use of excessive force by a law enforcement officer in effectuating an 2 arrest states a valid claim under 42 U.S.C. § 1983. Rutherford v. City of Berkeley, 780 F.2d 1444, 3 1447 (9th Cir. 1986), overruled on other grounds by Graham v. Connor, 490 U.S. 386 (1989). 4 Excessive force claims which arise in the context of an arrest or investigatory stop of a free citizen 5 are analyzed under the Fourth Amendment reasonableness standard. Graham v. Connor, 490 U.S. 6 386, 394-95 (1989). 7 8 9 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, 11 United States District Court Northern District of California 10 690 (1978); however, a city or county may not be held vicariously liable for the unconstitutional 12 acts of its employees under the theory of respondeat superior, see Board of Cty. Comm'rs of Bryan 13 Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691. To impose municipal liability 14 under § 1983 for a violation of constitutional rights, a plaintiff must show: (1) that the plaintiff 15 possessed a constitutional right of which he or she was deprived; (2) that the municipality had a 16 policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional rights; 17 and (4) that the policy is the moving force behind the constitutional violation. Plumeau v. School 18 Dist. #40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). 19 Plaintiff’s complaint fails to state a claim against the Sheriff’s Department because he does 20 not allege that the Sheriff’s Department had a policy which amounts to deliberate indifference to 21 his Fourth Amendment rights and that the policy was the moving force behind the Fourth 22 Amendment violation. Therefore, the claim against the Alameda County Sheriff’s Department is 23 dismissed with leave to amend for Plaintiff to remedy this deficiency, if he truthfully can do so. CONCLUSION 24 25 For the foregoing reasons, the Court orders as follows: 26 1. Plaintiff states a cognizable Fourth Amendment claim for excessive force in his arrest 27 28 against Alameda Sheriff’s Sgt. Russell. 2. Plaintiff’s Fourth Amendment claim against the Alameda County Sheriff’s Department 3 1 is dismissed with leave to amend. Plaintiff may file an amended complaint remedying the 2 deficiencies noted above within twenty-one days from the date of this Order. The amended 3 complaint must include the caption and civil case number used in this Order and the words 4 AMENDED COMPLAINT on the first page. Because an amended complaint completely replaces 5 the original complaint, Plaintiff must include in it all the claims he wishes to present. See Ferdik 6 v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the 7 original complaint by reference. If Plaintiff does not file an amended complaint within the 8 designated timeframe, his claims against the Sheriff’s Department will be dismissed without leave 9 to amend and his claim against Sgt. Russell will proceed in accordance with the schedule set forth 10 United States District Court Northern District of California 11 below. 3. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 12 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint 13 (docket no. 1) and all attachments thereto, a copy of this Order and a copy of the form “Consent or 14 Declination to Magistrate Judge Jurisdiction” to Alameda County Sheriff Sgt. Russell. A courtesy 15 copy of the complaint with attachments and this Order shall also be mailed to the Alameda County 16 Counsel’s Office. 17 4. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure require 18 him to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant 19 to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of 20 Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of 21 such service unless good cause be shown for their failure to sign and return the waiver forms. If 22 service is waived, this action will proceed as if Defendants had been served on the date that the 23 waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve 24 and file an answer before sixty days from the date on which the request for waiver was sent. (This 25 allows a longer time to respond than would be required if formal service of summons is 26 necessary.) 27 28 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 4 1 summons. If service is waived after the date provided in the Notice but before Defendants have 2 been personally served, the answer shall be due sixty days from the date on which the request for 3 waiver was sent or twenty days from the date the waiver form is filed, whichever is later. 4 5 6 7 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 8 9 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 11 United States District Court Northern District of California 10 all respects to Federal Rule of Civil Procedure 56. If Defendants are of the opinion that this case 12 cannot be resolved by summary judgment, they shall so inform the Court prior to the date the 13 summary judgment motion is due. All papers filed with the Court shall be promptly served on 14 Plaintiff. 15 At the time of filing the motion for summary judgment or other dispositive motion, 16 Defendants shall comply with the Ninth Circuit’s decisions in Woods v. Carey, 684 F.3d 934 (9th 17 Cir. 2012), and Stratton v. Buck, 697 F.3d 1004 (9th Cir. 2012), and provide Plaintiff with notice 18 of what is required of him to oppose a summary judgment motion or a motion to dismiss for 19 failure to exhaust administrative remedies. 20 b. Plaintiff’s opposition to the motion for summary judgment or other dispositive 21 motion shall be filed with the Court and served on Defendants no later than twenty-eight days 22 after the date on which Defendants’ motion is filed. 23 Before filing his opposition, Plaintiff is advised to read the notice that will be provided to 24 him by Defendants when the motion is filed, and Rule 56 of the Federal Rules of Civil Procedure 25 and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come 26 forward with evidence showing triable issues of material fact on every essential element of his 27 claim). Plaintiff is cautioned that because he bears the burden of proving his allegations in this 28 case, he must be prepared to produce evidence in support of those allegations when he files his 5 1 opposition to Defendants’ summary judgment motion. Such evidence may include sworn 2 declarations from himself and other witnesses to the incident, and copies of documents 3 authenticated by sworn declaration. Plaintiff will not be able to avoid summary judgment simply 4 by repeating the allegations of his complaint. c. Defendants shall file a reply brief no later than fourteen days after the date 5 6 Plaintiff’s opposition is filed. d. The motion shall be deemed submitted as of the date the reply brief is due. No 7 8 9 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 11 United States District Court Northern District of California 10 depose Plaintiff and any other necessary witnesses confined in prison. 12 8. All communications by Plaintiff with the Court must be served on Defendants, or 13 Defendants’ counsel once counsel has been designated, by mailing a true copy of the document to 14 Defendants or their counsel. 15 9. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 16 informed of any change of address by filing a separate paper with the clerk headed “Notice of 17 Change of Address,” and must comply with the Court's orders in a timely fashion. Failure to do so 18 may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 19 Procedure 41(b). 20 10. Extensions of time are not favored, though reasonable extensions will be granted. Any 21 motion for an extension of time must be filed no later than seven days prior to the deadline sought 22 to be extended. 23 24 25 26 IT IS SO ORDERED. Dated: 4/25/14 ______________________________________ KANDIS A. WESTMORE UNITED STATES MAGISTRATE JUDGE 27 28 6

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?