Flaugher v. San Diego Police Department et al

Filing 4

ORDER: (1) Granting Motion to Proceed in Forma Pauperis; (2) Denying Motion for Appointment of Counsel; and (3) Dismissing Civil Action for Failure to State a Claim. Plaintiff is granted thirty (30) days leave from the date of this Order to file an Amended Complaint. Signed by Judge Roger T. Benitez on 7/31/2017.(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DOUGLAS WILLIAM FLAUGHER,

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Plaintiff,

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SAN DIEGO POLICE DEPARTMENT
JON DOE,

ORDER:

v.

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Case No.: 3:17-cv-1501-BEN-WVG

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Defendant.

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1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS;
2) DENYING MOTION FOR
APPOINTMENT OF COUNSEL; and

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3) DISMISSING CIVIL ACTION
FOR FAILURE TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)

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Plaintiff Douglas W. Flaugher, proceeding prose, has filed a complaint, a motion

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to proceed in forma pauperis ("IFP"), and a motion for appointment of counsel. For the

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reasons stated below, the Court grants the motion to proceed IFP, denies the motion for

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appointment of counsel, and dismisses Plaintiffs complaint for failure to state a claim

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pursuant to 28 U.S.C. § 1915(e).

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I.

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Motion to Proceed IFP
All parties instituting any civil action in a district court must pay a filing fee. 28

U.S.C. § 1914(a). An action may proceed despite a plaintiffs failure to prepay the entire

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fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). Under 28

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U.S.C. § 1915(a)(l),

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[A]ny court of the United States may authorize the commencement,
prosecution or defense of any suit, action or proceeding ... without
prepayment of fees or security therefor, by a person who submits an affidavit
that includes a statement of all assets such [person] possesses that the person
is unable to pay such fees or give security therefor.

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Plaintiff is unemployed and homeless. He claims to be mentally disabled and have

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only a 10th grade education. He receives $1,086.70 monthly in Social Security Disability

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and $160 in food stamps. He has no assets. He estimates monthly expenses of$1,000.

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Those expenses include $300 on food, $50 on clothing, $25 on laundry, $650 in medical

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and dental costs, $18 in transportation, $50 in recreation, $190 for two storage units and

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phone, and occasional motel rooms for $75 to $100 a night. (The Court notes that

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although Plaintiff estimates $1,000 a month in expenses, his enumerated costs total over

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$1,200). Based on the above, the Court finds that Plaintiff has sufficiently stated that he

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cannot afford to pay the filing fee. Therefore, Plaintiffs motion to proceed IFP is

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GRANTED. (ECF No. 3).

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II.

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Motion for Appointment of Counsel
Plaintiff also asks the Court to appoint counsel for him because he is indigent,

mentally disabled, and cannot afford an attorney.

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Courts have discretion, pursuant to 28 U.S.C. § 1915(e)(l) (1996), to appoint

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counsel for indigent civil litigants upon a showing of exceptional circumstances. "A

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finding of exceptional circumstances requires an evaluation of both the likelihood of

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success on the merits and the ability of the petitioner to articulate his claims pro se in

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light of the complexity of the legal issues involved." Terrell v. Brewer, 935 F.2d 1015,

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1017 (9th Cir. 1991) (internal citations omitted). "Neither of these factors is dispositive

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and both must be viewed together before reaching a decision." Id. (internal citations

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omitted).

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III
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At this time, the Court cannot say there is any likelihood of success on the merits.

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Moreover, Plaintiff fails to demonstrate an inability to represent himself beyond the

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ordinary burdens encountered by plaintiffs representing themselves pro se. As to his

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argument that he cannot afford counsel, "[m]erely alleging indigence is insufficient to

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entitle him to appointed counsel; he must also demonstrate that he made a good faith

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effort, but was unable, to obtain counsel." Garcia v. Smith, No. 10-cv-1187, 2012 WL

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2499003, at *4 (S.D. Cal. June 27, 2012). Plaintiff has failed to make this showing.

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Therefore, the Court finds that the exceptional circumstances required for the

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appointment of counsel are not present. Plaintiffs motion for appointment of counsel is

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DENIED. (ECF No. 2).

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III.

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Section 1915 Screening

A. Legal Standard
Under section 1915(e) of title 28 of the United States Code, the Court must sua

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sponte dismiss IFP complaints, or any portions thereof, which are frivolous, malicious,

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fail to state a claim, or which seek damages from defendants who are immune. See Lopez

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v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en bane) (discussing 28 U.S.C. §

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1915(e)(2)). "[T]he provisions of section 1915(e)(2)(B) are not limited to prisoners."

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Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001).

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Every complaint must contain "a short and plain statement of the claim showing

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that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported

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by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (citing Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "When there are

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well-pleaded factual allegations, a court should assume their veracity, and then determine

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whether they plausibly give rise to an entitlement to relief." Id. at 679; see Barren v.

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Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that section 1915(e)(2)

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"parallels the language of Federal Rule of Civil Procedure 12(b)( 6)"). "Determining

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whether a complaint states a plausible claim for relief [is] ... a context-specific task that
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Iqbal, 556 U.S. at 679. The "mere possibility of misconduct" falls short of meeting this

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plausibility standard. Id.; see also Moss v. US. Secret Serv., 572 F.3d 962, 969 (9th Cir.

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2009).

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While a plaintiffs factual allegations are taken as true, courts "are not required to

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indulge unwarranted inferences." Doe Iv. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th

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Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts "have an

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obligation where the petitioner is pro se, particularly in civil rights cases, to construe the

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pleadings liberally and to afford the petitioner the benefit of any doubt," Heb be v. Pliler,

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627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.l

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(9th Cir. 1985)), it may not "supply essential elements of claims that were not initially

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pied." Iveyv. Bd. a/Regents of the Univ. ofAlaska, 673 F.2d 266, 268 (9th Cir. 1982).

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B. Discussion
Plaintiff alleges that San Diego Police Department ("SDPD") Officer Jon Doe

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"attacked" and "attempted [to] murder" him during the seventh inning of a San Diego

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Padres baseball game at Petco Park in 2015. Although not entirely clear, it appears that

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Plaintiff was "attacked" by the officer while Plaintiff was resisting arrest. The officer

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"wrestled" Plaintiff to the ground and put him in a "choke hold," with his arm around

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Plaintiffs neck. Plaintiff contends that he was charged with resisting arrest and agreed to

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a plea agreement with three years of probation. He states that he submitted a complaint

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with the City of San Diego, but the City never responded to his complaint. He has tried

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to obtain evidence to support his claim, but has not been able to obtain such evidence

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"because of [a] local ordinance." He seeks to discover the officer(s) involved in the

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incident and for them to be disciplined and/or prosecuted. He also asks for $500,000 in

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damages for his pain and mental suffering.

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Plaintiff fails to enumerate any specific claims, but the Court will construe his

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pleading liberally. Plaintiff claims an SDPD officer used excessive force while arresting

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him and that he pied guilty to resisting arrest. Resisting arrest is a crime under California
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Penal Code§ 148(a). Under California law, an essential element to establish a violation

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of§ 148(a) is that the officer must be acting lawfully. Smith v. City ofHemet, 394 F.3d

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689, 695 (9th Cir. 2005) (citing People v. Curtis, 70 Cal. 2d 347, 354-56 (1969)). The

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use of excessive force by the officer at the time of the arrest constitutes unlawful action.

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Id. Therefore, if a police officer uses excessive force to make an arrest, that arrest is

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unlawful and the arrestee cannot be convicted of violating§ 148(a).

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To the extent Plaintiff brings a damages claim under 42 U.S.C. § 1983 against

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SDPD officers for use of excessive force during arrest in violation of Plaintiffs Fourth

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Amendment rights, he may not pursue this claim in a§ 1983 action without first showing

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his conviction has been invalidated. See Heck v. Humphry, 512 U.S. 477, 486-87 (1994).

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In Heck, the Supreme Court held:
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A
claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under
§ 1983.

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Id. at 486-87. Because Plaintiff seeks damages based on the use of excessive force

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during an arrest, his claim necessarily means that the officers acted unlawfully at the time

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of the arrest and that his conviction under§ 148(a) was wrongful. Thus, his claim

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"necessarily impl[ies] the invalidity of' his conviction and is barred by Heck until

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Plaintiff can show that his conviction has been reversed, expunged, or otherwise declared

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invalid. Id. at 487.

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Plaintiff may also be attempting to plead state law claims for assault and battery.

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However, the California Supreme Court has extended the Heck bar to state law claims

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arising from the same alleged misconduct. Yount v. City ofSacramento, 43 Cal. 4th 885,
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902 (2008).

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Moreover, the Court notes that Plaintiff's action may be untimely. The statute of

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limitations for § 1983 claims and state law claims for assault or battery is two years. Cal.

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Civ. P. Code§ 335.1; Butler v. Nat'! Cmty. Renaissance a/Cal., 766 F.3d 1191, 1198

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(9th Cir. 2014) (explaining that§ 1983 does not have its own statute of limitations and,

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instead, actions under§ 1983 borrow the forum state's limitations period for personal

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injury actions). Plaintiff alleges that the conduct at issue occurred sometime in 2015, but

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he does not specify a particular date. Thus, should Plaintiff choose to amend his

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complaint, he must specify the date of the alleged misconduct to plausibly plead a timely

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claim.

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For the reasons discussed above, Plaintiff's complaint must be dismissed for

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failing to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e). Because

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Plaintiff is proceeding without counsel, however, the Court having now provided him

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with "notice of the deficiencies in his complaint," will also grant him an opportunity to

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amend it. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v.

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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

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IV.

Conclusion and Order

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Good cause appearing, the Court:

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1.

GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 3);

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2.

DENIES Plaintiff's Motion for Appointment of Counsel (ECF No. 2);

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DISMISSES Plaintiff's Complaint for failing to state a claim upon which

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relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B), and GRANTS him thirty

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(30) days leave from the date of this Order in which to file an Amended Complaint which

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cures all the deficiencies of pleading noted. Plaintiff's Amended Complaint must be

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complete by itself without reference to his original pleading. Defendants not named and

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any claim not re-alleged in his Amended Complaint will be considered waived. See S.D.

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Cal. CivLR 15.l; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,

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1546 (9th Cir. 1989) ("[A]n amended pleading supersedes the original."); Lacey v.
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leave to amend which are not re-alleged in an amended pleading may be "considered

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waived if not repled.").

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If Plaintiff fails to file an Amended Complaint within the time provided, the Court

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will enter a final Order dismissing this civil action based both on Plaintiff's failure to

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state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)

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and his failure to prosecute in compliance with a court order requiring amendment. See

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Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) ("If a plaintiff does not take

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advantage of the opportunity to fix his complaint, a district court may convert the

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dismissal of the complaint into dismissal of the entire action.").
IT IS SO ORDERED.

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Dated: July

-?f

2017

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Hon. o
. enitez
United States District Judge

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