Cepero v. Gillespie et al

Filing 19

ORDER that Magistrate Judge George Foley, Jr.s Report and Recommendation 9 is ACCEPTED. Count IV is dismissed with prejudice because it fails to state a claim upon which relief may be granted. Signed by Judge Gloria M. Navarro on 12/19/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BILLY CEPERO,
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Plaintiff,

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vs.

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DOUGLAS GILLESPIE, et al.,
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Defendants.

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Case No.: 2:11-cv-01421-GMN-GWF
ORDER

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Before the Court is the Honorable Magistrate Judge George Foley, Jr.’s Report and

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Recommendation on pro se Plaintiff Billy Cepero’s Application to Proceed in Forma Pauperis

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(ECF No. 5). Plaintiff filed an Objection to the Magistrate Judge’s Recommendation that Count

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IV of Plaintiff’s Complaint be dismissed with prejudice. (ECF No. 9.)

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I.

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BACKGROUND
Pursuant to 28 U.S.C. § 1915(a), Plaintiff, who is currently incarcerated, filed this action

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and attached a financial affidavit to his application. Plaintiff brings this action against Sheriff

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Douglas Gillespie and twenty (20) other individual Las Vegas Metropolitan Police Department

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(“LVMPD”) officers pursuant to 42 U.S.C. § 1983. The facts relevant to Plaintiff’s objection

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stem from his arrest on August 26, 2009, in which the LVMPD SWAT team found and arrested

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him. At the time of his arrest, Plaintiff alleges that he was in his boxer shorts, lying on his

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stomach on the bathroom floor, while he was punched, kicked and hit with a canister until he

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fainted. Plaintiff claims that his injuries were so severe that he required several stitches in his

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face and shoulder surgery. Plaintiff alleges excessive use of force in Count I of his Complaint,

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and cruel and unusual punishment in Count IV of his Complaint.

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II.

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LEGAL STANDARD
Civil complaints brought by prisoners seeking relief against a governmental entity or

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officer or employee of a governmental entity must be screened. 28 U.S. C. § 1915A(a). Any

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portion of a complaint that “is frivolous, malicious, or fails to state a claim upon which relief

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may be granted,” or that “seeks monetary relief from a defendant who is immune from such

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relief” must be dismissed. 28 U.S.C. § 1915A(b).

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party has

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filed timely objections, this Court reviews de novo the parts to which an objection was made. Id;

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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III.

DISCUSSION

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Count IV of Plaintiff’s Complaint alleges cruel and unusual punishment. Plaintiff states

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that seventeen (17) of the twenty-one (21) named Defendants “were involve[d in] the infliction

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of pain wantonly and unnecessar[ily].” He recites the injuries he received upon his arrest and

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the medical treatments that were subsequently required. He alleges that these injuries are

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permanent and unjust, and that they are all due to the actions of Defendants even though he

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posed no harm.

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The Eighth Amendment to the United States Constitution prohibits the infliction of cruel

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and unusual punishment. The United States Supreme Court has explained that “Eighth

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Amendment scrutiny is appropriate only after the State has complied with the constitutional

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guarantees traditionally associated with criminal prosecutions… [T]he State does not acquire the

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power to punish with which the Eighth Amendment is concerned until after it has secured a

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formal adjudication of guilt in accordance with due process of law.” City of Revere v. Mass.

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Gen. Hosp., 463 U.S. 239, 244 (1983) (quoting Ingraham v. Wright, 430 U.S. 651, 671-72 n.40

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(1977)).

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Here, Plaintiff does not allege a formal adjudication of guilt prior to Defendants’ actions.

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Furthermore, claims that law enforcement officers used excessive force in the course of an arrest

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are analyzed under the Fourth Amendment’s “reasonableness standard.” Graham v. Connor, 490

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U.S. 386, 395 (1989). Accordingly, and because Plaintiff’s cause of action in Count IV is

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substantively identical to his cause of action in Count I, the Magistrate Judge recommends that

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Plaintiff’s claims in Count IV be dismissed with prejudice.
Plaintiff responds that “[e]ven though no state prosecution nor an adjudication of guilt

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has been secure[d], it’s an appropriate claim, part and on its own ‘when an official(s) is

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responsible for unnecessary and wanton infliction of pain, the Eighth Amendment has been

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violated.” Plaintiff cites no legal support for this contention.
After full consideration of Plaintiff’s objection, the Court is satisfied that the Magistrate

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Judge’s ruling is nevertheless correct. The Court accepts the Magistrate Judge’s Report and

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Recommendation.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that Magistrate Judge George Foley, Jr.’s Report and

Recommendation (ECF No. 9) is ACCEPTED.
DATED this 19th day of December, 2011.

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Gloria M. Navarro
United States District Judge

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