Cody v. Cromwell

Filing 7

INITIAL REVIEW ORDER re 3 Complaint filed by Blake Edmond Cody, (Plaintiff shall have 30 days within which to file an amended complaint). Plaintiff's Request for Appointment of Counsel (contained in the Complaint) is DENIED without prejudice. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

BLAKE EDMOND CODY,
Case No. 1:15-cv-00331-REB
Plaintiff,
INITIAL REVIEW ORDER
v.
JIM CROMWELL, Boise City Police
Department,
Defendant.

The Clerk of Court conditionally filed Plaintiff Blake Edmond Cody’s Complaint
as a result of his status as an inmate and his in forma pauperis request. The Court now
reviews the Complaint to determine whether it should be summarily dismissed in whole
or in part under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and
otherwise being fully informed, the Court enters the following Order requiring Plaintiff to
file an amended complaint if he intends to proceed.
REVIEW OF COMPLAINT
1.

Factual Allegations
Plaintiff is a prisoner in the custody of the Idaho Department of Correction,

currently incarcerated at Idaho State Correctional Institution (ISCI). Plaintiff alleges that
on May 11, 2014, several Boise police officers—one of whom is the named Defendant in
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the instant case—used excessive force during the course of Plaintiff’s arrest. (Compl.,
Dkt. 3, at 2.) Plaintiff states that, because the initial force used by the officers rendered
Plaintiff unable to see “where hands were placed,” Plaintiff was then subjected to “more
aggressive force.” (Id.)
Plaintiff was hospitalized as a result of his injuries and asserts that he suffered
abrasions on his ankle, shoulder, elbow, knees, and face. The officers’ use of force also
allegedly caused swelling and bruising around Plaintiff’s eyes, bloody hands, and a
bloody nose, as well as PTSD and mental anguish. (Id.)
2.

Standard of Law for Summary Dismissal
The Court is required to review complaints filed in forma pauperis, or complaints

filed by prisoners seeking relief against a governmental entity or an officer or employee
of a governmental entity, to determine whether summary dismissal is appropriate. The
Court must dismiss a complaint or any portion thereof that states a frivolous or malicious
claim, fails to state a claim upon which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(d)(2) & 1915A(b).
A complaint fails to state a claim for relief under Rule 8 of the Federal Rules of
Civil Procedure if the factual assertions in the complaint, taken as true, are insufficient
for the reviewing court plausibly “to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. In other words, although Rule 8 “does not require detailed
factual allegations, . . . it demands more than an unadorned, the-defendant-unlawfullyINITIAL REVIEW ORDER - 2

harmed-me accusation.” Id. (internal quotation marks omitted). If the facts pleaded are
“merely consistent with a defendant’s liability,” the complaint has not stated a claim for
relief that is plausible on its face. Id. (internal quotation marks omitted).
Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To state
a valid claim under § 1983, a plaintiff must allege a violation of rights protected by the
Constitution or created by federal statute proximately caused by the conduct of a person
acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
Plaintiff has not alleged sufficient facts to proceed with his Complaint. The Court
will grant Plaintiff 30 days to amend his Complaint, however. Any amended complaint
must comply with the following standards.
3.

Excessive Force Claim against Officer Cromwell
Claims of excessive force during the course of an arrest are analyzed under the

Fourth Amendment’s “reasonableness” standard,” which requires “balancing the nature
and quality of the intrusion on a person’s liberty with the countervailing governmental
interests at stake.” Davis v. City of Las Vegas, 478 F.3d 1048, 1053-54 (9th Cir. 2007).
First, the “quantum of force” must be assessed. Second, the governmental interests at
stake must be analyzed in light of the following factors: (1) the severity of the crime for
which the plaintiff was arrested; (2) whether the plaintiff posed a threat to the safety of
the officers or others; (3) whether the plaintiff was actively resisting arrest or attempting
to flee; and (4) the availability of alternative methods of subduing the plaintiff. Id.
Plaintiff describes the force used upon him only as “excessive.” There are no
factual allegations from which the Court can draw a plausible inference as to the quantum
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of force used or the severity of the crime for which Plaintiff was arrested. Similarly, the
circumstances surrounding Plaintiff’s arrest are unknown. If Plaintiff intends to amend
his Complaint, he should include specific factual details about his arrest, including what
Plaintiff was doing, what Officer Cromwell was doing, and all interactions between
Plaintiff and Defendant.
4.

Potential Claims against the City of Boise
It is unclear whether Plaintiff intends to assert a claim of excessive force against

the City of Boise or the Boise Police Department. To bring a § 1983 claim against a
municipality (local governmental entity), a plaintiff must allege that the execution of an
official policy or unofficial custom inflicted the injury of which the plaintiff complains,
as required by Monell v. Deptartment of Social Services of New York, 436 U.S. 658, 694
(1978). Under Monell, the requisite elements of a § 1983 claim against a municipality are
the following: (1) the plaintiff was deprived of a constitutional right; (2) the municipality
had a policy or custom; (3) the policy or custom amounted to deliberate indifference to
plaintiff’s constitutional right; and (4) the policy or custom was the moving force behind
the constitutional violation. Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1110-11 (9th
Cir. 2001).
An unwritten policy or custom must be so “persistent and widespread” that it
constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970)). “Liability for improper
custom may not be predicated on isolated or sporadic incidents; it must be founded upon
practices of sufficient duration, frequency and consistency that the conduct has become a
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traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.
1996). Further, a municipality or private entity performing a state function “may be held
liable under § 1983 when the individual who committed the constitutional tort was an
official with final policy-making authority or such an official ratified a subordinate's
unconstitutional decision or action and the basis for it.” Clouthier v. County of Contra
Costa, 591 F.3d 1232, 1250 (9th Cir. 2010).
If Plaintiff intends to assert an excessive claim against the City of Boise in an
amended complaint, he should include facts meeting the above standards.
5.

Standards for Amended Complaint
If Plaintiff chooses to amend his § 1983 complaint, he must demonstrate how the

actions complained of have resulted in a deprivation of his constitutional rights. See Ellis
v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980), abrogated on other grounds by Kay v.
Ehler, 499 U.S. 432 (1991). Plaintiff must also allege a sufficient causal connection
between each defendant’s actions and the claimed deprivation. Taylor, 880 F.2d at 1045;
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “Vague and conclusory allegations
of official participation in civil rights violations are not sufficient . . . .” Ivey v. Bd. of
Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Iqbal, 556 U.S. at
678 (“Nor does a complaint suffice if it tenders naked assertions devoid of further factual
enhancement.” (internal quotation marks and alteration omitted)). Rather, the complaint
must allege in specific terms the following: (1) the particular governmental policy or
custom which caused the deprivation of his constitutional rights or the names of the
persons who caused or personally participated in causing the alleged deprivation of his
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constitutional rights; (2) the dates on which the conduct of each defendant allegedly took
place; and (3) the specific conduct or action Plaintiff alleges is unconstitutional.
Further, any amended complaint must contain all of Plaintiff’s allegations in a
single pleading, and cannot rely upon or incorporate by reference prior pleadings. Dist.
Idaho Loc. Civ. R. 15.1 (“Any amendment to a pleading, whether filed as a matter of
course or upon a motion to amend, must reproduce the entire pleading as amended”); see
also Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (“[An] amended
complaint supersedes the original, the latter being treated thereafter as non-existent.”),
overruled in part on other grounds by Lacey v. Maricopa County, 693 F.3d 896, (9th Cir.
2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542,
1546 (9th Cir. 1990) (holding that the district court erred by entering judgment against a
party named in the initial complaint, but not in the amended complaint).
Plaintiff shall set forth each different factual allegation in a separate numbered
paragraph. The amended complaint must be legibly written or typed in its entirety, and it
should be clearly designated as the “Amended Complaint.” Plaintiff’s name and address
should be clearly printed at the top left corner of the first page of each document filed
with the Court.
If Plaintiff files an amended complaint, he must also file a “Motion to Review the
Amended Complaint.” If Plaintiff does not amend within 30 days, or if his amendment
does not comply with Rule 8, this case may be dismissed without further notice. See
Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (“When a litigant knowingly and

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repeatedly refuses to conform his pleadings to the requirements of the Federal Rules, it is
reasonable to conclude that the litigant simply cannot state a claim.”).
ORDER
IT IS ORDERED:
1.

Plaintiff shall have 30 days within which to file an amended complaint as
described above. If Plaintiff does so, he must file (along with the amended
complaint) a Motion to Review the Amended Complaint. If Plaintiff does
not amend within 30 days, his case may be dismissed without further
notice.

2.

Plaintiff’s Request for Appointment of Counsel (contained in the
Complaint) is DENIED without prejudice.

DATED: September 28, 2015

Honorable Ronald E. Bush
U. S. Magistrate Judge

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