1 2 3 WESTERN DISTRICT OF WASHINGTON 6 ROMEO C. ALLEN, Case No. 3:23-cv-05362-DGE 7 Plaintiff, v. ORDER TO SHOW CAUSE, OR LONGVIEW POLICE DEPARTMENT, COMPLAINT 9 Defendants. 10
11 This matter comes before the Court on plaintiff’s filing of a proposed amended 12 civil rights complaint. Dkt. 6. Plaintiff is proceeding pro se and has filed a motion to 13 proceed in forma pauperis (“IFP”). Dkt. 3.1 Having reviewed and screened plaintiff’s 14 proposed amended complaint under 28 U.S.C. §1915, the Court declines to serve the 15 proposed amended complaint but provides plaintiff leave to file an amended complaint 16 by June 30, 2023, to cure the deficiencies identified in this Order. 18 The Court may permit indigent litigants to proceed IFP upon completion of a 19 proper affidavit of indigency. See 28 U.S.C. §1915(a). However, the court has broad 20 discretion in denying an application to proceed IFP. Weller v. Dickson, 314 F.2d 598 21 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). 22 23 1 Because plaintiff’s complaint is deficient, the Court will defer ruling on plaintiff’s application to proceed 24 IFP to allow plaintiff another opportunity to file an amended complaint. 1 The Court must subject each civil action commenced pursuant to 28 U.S.C. § 2 1915(a) to mandatory screening and order the sua sponte dismissal of any case that is 3 “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks 4 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §
5 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he 6 provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 7 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not 8 only permits but requires” the court to sua sponte dismiss an IFP complaint that fails to 9 state a claim). An IFP complaint is frivolous if “it ha[s] no arguable substance in law or 10 fact.” Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (citing 11 Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); see also Franklin v. Murphy, 745 12 F.2d 1221, 1228 (9th Cir. 1984). 13 A pro se plaintiff’s complaint is to be construed liberally, but like any other 14 complaint it must contain factual assertions sufficient to support a facially plausible
15 claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citing Bell Atlantic Corp. v. 16 Twombly, 550 U.S. 544, 570 (2007)). A claim for relief is facially plausible when “the 17 plaintiff pleads factual content that allows the court to draw the reasonable inference 18 that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 19 Unless it is absolutely clear that no amendment can cure the defects of a 20 complaint, a pro se litigant is entitled to notice of the complaint’s deficiencies and an 21 opportunity to amend prior to dismissal of the action. See Lucas v. Dep't of Corr., 66 22 F.3d 245, 248 (9th Cir.1995). Leave to amend need not be granted “where the 23
24 1 amendment would be futile or where the amended complaint would be subject to 2 dismissal.” Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). 3 To state a claim under 42 U.S.C. § 1983, a complaint must allege: (1) the 4 conduct complained of was committed by a person acting under color of state law, and
5 (2) the conduct deprived a person of a right, privilege, or immunity secured by the 6 Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), 7 overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). To satisfy the 8 second prong, a plaintiff must allege facts showing how individually named defendants 9 caused, or personally participated in causing the harm alleged in the complaint. See 10 Arnold v. Int'l Bus. Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 11 The Court is required to liberally construe pro se documents. Estelle v. Gamble, 12 429 U.S. 97, 106 (1976). And, Federal Rule of Civil Procedure 8 requires a complaint to 13 contain “a short and plain statement of the claim showing that the pleader is entitled to 14 relief.” Fed. R. Civ. P. 8(a). “Each allegation must be simple, concise, and direct.” Fed.
15 R. Civ. P. 8(d). 16 Plaintiff’s Amended Complaint 17 The Court issued a prior Order to Show Cause in this case indicating that 18 plaintiff’s original complaint was deficient because it named only Longview Police 19 Department as the sole defendant, and it failed to allege any set of facts that would 20 support any plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citing 21 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In response to the Court’s 22 order plaintiff filed this amended complaint which names Pattison, Blanton, and 23
24 1 Benjamin as defendants; the proposed Amended Complaint identifies these three 2 individuals as police officers of Longview Police Department. Dkt. 6 at 2. 3 i. Fourth Amendment Excessive Force 4 Plaintiff alleges that he was subjected to unlawful excessive force during his
5 arrest. A Fourth Amendment claim of excessive force is analyzed under the standard 6 set forth by the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989). The analysis 7 is objective; whether the officers’ actions are objectively reasonable in light of the facts 8 and circumstances confronting them. Id. at 397. “A Court…cannot apply this standard 9 mechanically.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). Objective 10 reasonableness is determined by the “’facts and circumstances of each particular 11 case.’” Id. (citing Graham, 490 U.S. at 396).
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1 2 3 WESTERN DISTRICT OF WASHINGTON 6 ROMEO C. ALLEN, Case No. 3:23-cv-05362-DGE 7 Plaintiff, v. ORDER TO SHOW CAUSE, OR LONGVIEW POLICE DEPARTMENT, COMPLAINT 9 Defendants. 10
11 This matter comes before the Court on plaintiff’s filing of a proposed amended 12 civil rights complaint. Dkt. 6. Plaintiff is proceeding pro se and has filed a motion to 13 proceed in forma pauperis (“IFP”). Dkt. 3.1 Having reviewed and screened plaintiff’s 14 proposed amended complaint under 28 U.S.C. §1915, the Court declines to serve the 15 proposed amended complaint but provides plaintiff leave to file an amended complaint 16 by June 30, 2023, to cure the deficiencies identified in this Order. 18 The Court may permit indigent litigants to proceed IFP upon completion of a 19 proper affidavit of indigency. See 28 U.S.C. §1915(a). However, the court has broad 20 discretion in denying an application to proceed IFP. Weller v. Dickson, 314 F.2d 598 21 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). 22 23 1 Because plaintiff’s complaint is deficient, the Court will defer ruling on plaintiff’s application to proceed 24 IFP to allow plaintiff another opportunity to file an amended complaint. 1 The Court must subject each civil action commenced pursuant to 28 U.S.C. § 2 1915(a) to mandatory screening and order the sua sponte dismissal of any case that is 3 “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks 4 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §
5 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he 6 provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 7 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not 8 only permits but requires” the court to sua sponte dismiss an IFP complaint that fails to 9 state a claim). An IFP complaint is frivolous if “it ha[s] no arguable substance in law or 10 fact.” Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (citing 11 Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); see also Franklin v. Murphy, 745 12 F.2d 1221, 1228 (9th Cir. 1984). 13 A pro se plaintiff’s complaint is to be construed liberally, but like any other 14 complaint it must contain factual assertions sufficient to support a facially plausible
15 claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citing Bell Atlantic Corp. v. 16 Twombly, 550 U.S. 544, 570 (2007)). A claim for relief is facially plausible when “the 17 plaintiff pleads factual content that allows the court to draw the reasonable inference 18 that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 19 Unless it is absolutely clear that no amendment can cure the defects of a 20 complaint, a pro se litigant is entitled to notice of the complaint’s deficiencies and an 21 opportunity to amend prior to dismissal of the action. See Lucas v. Dep't of Corr., 66 22 F.3d 245, 248 (9th Cir.1995). Leave to amend need not be granted “where the 23
24 1 amendment would be futile or where the amended complaint would be subject to 2 dismissal.” Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). 3 To state a claim under 42 U.S.C. § 1983, a complaint must allege: (1) the 4 conduct complained of was committed by a person acting under color of state law, and
5 (2) the conduct deprived a person of a right, privilege, or immunity secured by the 6 Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), 7 overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). To satisfy the 8 second prong, a plaintiff must allege facts showing how individually named defendants 9 caused, or personally participated in causing the harm alleged in the complaint. See 10 Arnold v. Int'l Bus. Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 11 The Court is required to liberally construe pro se documents. Estelle v. Gamble, 12 429 U.S. 97, 106 (1976). And, Federal Rule of Civil Procedure 8 requires a complaint to 13 contain “a short and plain statement of the claim showing that the pleader is entitled to 14 relief.” Fed. R. Civ. P. 8(a). “Each allegation must be simple, concise, and direct.” Fed.
15 R. Civ. P. 8(d). 16 Plaintiff’s Amended Complaint 17 The Court issued a prior Order to Show Cause in this case indicating that 18 plaintiff’s original complaint was deficient because it named only Longview Police 19 Department as the sole defendant, and it failed to allege any set of facts that would 20 support any plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citing 21 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In response to the Court’s 22 order plaintiff filed this amended complaint which names Pattison, Blanton, and 23
24 1 Benjamin as defendants; the proposed Amended Complaint identifies these three 2 individuals as police officers of Longview Police Department. Dkt. 6 at 2. 3 i. Fourth Amendment Excessive Force 4 Plaintiff alleges that he was subjected to unlawful excessive force during his
5 arrest. A Fourth Amendment claim of excessive force is analyzed under the standard 6 set forth by the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989). The analysis 7 is objective; whether the officers’ actions are objectively reasonable in light of the facts 8 and circumstances confronting them. Id. at 397. “A Court…cannot apply this standard 9 mechanically.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). Objective 10 reasonableness is determined by the “’facts and circumstances of each particular 11 case.’” Id. (citing Graham, 490 U.S. at 396). In determining the reasonableness of a 12 seizure effected by non-deadly force, “the nature and quality of the intrusion on the 13 individual’s Fourth Amendment interests” should be balanced against “the 14 countervailing governing interests at stake.” Graham, 490 U.S. at 396 (internal
15 quotations omitted). 16 Several considerations may be relevant to this determination including: (1) the 17 relationship between the need for force and the amount of force used; (2) the extent of 18 the plaintiff’s injury; (3) any effort made by the officer to temper or to limit the amount of 19 force; (4) the severity of the security problem at issue; (5) the threat reasonably 20 perceived by the officer; and (6) whether plaintiff was actively resisting. See Kingsley v. 21 Hendrickson, 576 U.S. 389, 397 (2015); Graham, 490 U.S. at 396. 22 Plaintiff alleges that the arresting officer handcuffed and kicked him until he 23 slammed face first into the ground however, “[n]either tackling nor punching a suspect
24 1 to make an arrest necessarily constitutes excessive force.” Blankenhorn v. City of 2 Orange, 485 F.3d 463, 477 (9th Cir. 2007) (citing Graham, 490 U.S. at 396). It is not 3 enough for plaintiff to state the harm he incurred in the course of his arrest; he must 4 allege additional facts regarding specifics of his encounter with the defendants – i.e.
5 plaintiff must provide details about the events leading up to the arrest including the 6 incident defendants were responding to, and plaintiff’s and defendants’ actions before 7 and during the arrest. Without more, plaintiff has not pled sufficient facts to allege that 8 his rights were violated under the reasonableness standard stated above for the 9 purposes of a § 1983 claim. 11 Due to the deficiencies described above, the Court will not serve plaintiff’s 12 proposed amended complaint. If plaintiff intends to pursue this § 1983 civil rights action, 13 they must file an amended complaint on or before June 30, 2023. Within the amended 14 complaint, plaintiff must write a short, plain statement telling the Court: (1) the
15 constitutional right plaintiff believes was violated; (2) the name of the person(s) who 16 violated the right; (3) exactly what each individual defendant did or failed to do; (4) how 17 the action or inaction of the individual is connected to the violation of plaintiff’s 18 constitutional rights; and (5) what specific injury plaintiff suffered because of the 19 individual’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). Each 20 claim for relief must be simple, concise, and direct. Fed. R. Civ. P. 8(d). 21 If plaintiff submits an amended complaint, it shall be submitted on the form 22 provided by the Court. The amended complaint must be legibly rewritten or retyped in 23 its entirety, it should be an original and not a copy, it should contain the same case
24 1 number, and it may not incorporate any part of the original complaint by reference. The 2 amended complaint will act as a complete substitute for any previously filed complaint, 3 and not as a supplement. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) 4 overruled in part on other grounds, Lacey v. Maricopa Cty., 693 F.3d 896 (9th Cir.
5 2012). 6 If plaintiff includes attachments with the proposed amended complaint, any 7 attachments would be evidentiary exhibits in support of plaintiff’s allegations – not a 8 substitute for a complaint. Therefore, plaintiff is directed to include all allegations and 9 relevant facts in the body of the amended complaint. 10 The Court will screen the amended complaint to determine whether it contains 11 factual allegations linking each defendant to the alleged violations of plaintiff’s rights. 12 The Court will not authorize service of the amended complaint on any defendant who is 13 not specifically linked to a violation of plaintiff’s rights. 14 If plaintiff fails to respond to the Order to Show Cause, or fails to file an amended
15 complaint that adequately address the issues raised herein on or before June 30, 16 2023, the undersigned will recommend dismissal of this action without prejudice. 17 The Clerk is directed to: 18 1. Send plaintiff the appropriate forms for filing a 42 U.S.C. § 1983 civil rights 19 complaint; 20 2. Send copies of this Order and Pro Se Instruction Sheet to plaintiff; 21 3. Re-note plaintiff’s Motion to Proceed IFP (Dkt. 3) for June 30, 2023. 22 23
24 1 Dated this 14th day of June, 2023. 2
3 A 4 Theresa L. Fricke 5 United States Magistrate Judge 6 7
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24