1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 WENDELL KEITH CAUSEY, Case No. 2:23-cv-00421-RFB-EJY
5 Plaintiff, ORDER and 6 v. REPORT AND RECOMMENDATION
7 HENDERSON POLICE DEPARTMENT, et Re: ECF No. 1-1 al., Plaintiff’s Complaint 8 Defendants. 9 10 This matter is before the Court for screening of Plaintiff’s application to proceed in forma 11 pauperis (“IFP”) and Complaint. ECF Nos.1, 1-1. Plaintiff’s IFP is complete and demonstrates an 12 inability to pay filing fees. Thus, the Court grants Plaintiff’s IFP status. 13 I. SCREENING THE COMPLAINT 14 Upon granting a request to proceed in forma pauperis, a court must screen the complaint under 15 28 U.S.C. § 1915(e)(2). In its review, the court must identify any cognizable claims and dismiss any 16 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 17 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). 18 Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 19 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 20 elements: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) 21 that the alleged violation was committed by a person acting under color of state law. West v. Atkins, 22 487 U.S. 42, 48 (1988). 23 In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation 24 Reform Act, a federal court must dismiss a prisoner’s claim, if “the allegation of poverty is untrue,” 25 or if the action “is frivolous or malicious, fails to state a claim on which relief may be granted, or 26 seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). 27 Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for 1 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a 2 complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions 3 as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could 4 not be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 5 Review under Rule 12(b)(6) is essentially a ruling on a question of law. Chappel v. Lab. 6 Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper 7 only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would 8 entitle him or her to relief. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this 9 determination, the court takes as true all allegations of material fact stated in the complaint, and the 10 court construes them in the light most favorable to the plaintiff. Warshaw v. Xoma Corp., 74 F.3d 11 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 12 formal pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard 13 under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than 14 mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic 15 recitation of the elements of a cause of action is insufficient. Id. 16 Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, 17 because they are no more than [mere] conclusions, are not entitled to the assumption of truth.” 18 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the framework of 19 a complaint, they must be supported with factual allegations.” Id. “When there are well-pleaded 20 factual allegations, a court should assume their veracity and then determine whether they plausibly 21 give rise to an entitlement to relief.” Id. “Determining whether a complaint states a plausible claim 22 for relief … [is] a context-specific task that requires the reviewing court to draw on its judicial 23 experience and common sense.” Id. 24 Finally, all or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if 25 the prisoner’s claims lack an arguable basis either in law or in fact. This includes claims based on 26 legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or 27 claims of infringement of a legal interest which clearly does not exist), as well as claims based on 1 fanciful factual allegations (e.g., fantastic or delusional scenarios). Neitzke v. Williams, 490 U.S. 319, 2 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 3 II. DISCUSSION 4 Plaintiff’s Complaint offers a slim set of facts suggesting a judge ordered Plaintiff to change 5 into an orange jumpsuit, which included taking off a belt. ECF No. 1-1 at 4. This appears to have 6 led to a jail guard alleging Plaintiff almost hit him followed by the jailer breaking Plaintiff’s rib. Id. 7 Plaintiff sues the Henderson Police Department (“HPD”) alleging excessive force. Id. at 3. 8 To state a claim under 42 U.S.C. § 1983 against the HPD, Plaintiff must allege a 9 constitutional violation arising out of an official department policy, practice, or custom. Monell v. 10 Department of Social Services of N.Y., 436 U.S. 658, 690 (1978); Tsao v. Desert Palace, Inc., 698 11 F.3d 1128, 1138-39 (9th Cir. 2012); Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249 (9th 12 Cir. 2010). “First, a local government may be held liable ‘when implementation of its official 13 policies or established customs inflicts the constitutional injury.’” Clouthier, 591 F.3d at 1249 14 (quoting Monell, 436 U.S. at 708 (Powell, J. concurring)). “Second, under certain circumstances, a 15 local government may be held liable under § 1983 for acts of omission, when such omissions amount 16 to the local government’s own official policy.” Id. “Third, a local government may be held liable 17 under § 1983 when ‘the individual who committed the constitutional tort was an official with final 18 policy-making authority’ or such an official ‘ratified a subordinate’s unconstitutional decision or 19 action and the basis for it.’” Id. at 1250 (quoting Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th 20 Cir. 1992)).
Free access — add to your briefcase to read the full text and ask questions with AI
1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 WENDELL KEITH CAUSEY, Case No. 2:23-cv-00421-RFB-EJY
5 Plaintiff, ORDER and 6 v. REPORT AND RECOMMENDATION
7 HENDERSON POLICE DEPARTMENT, et Re: ECF No. 1-1 al., Plaintiff’s Complaint 8 Defendants. 9 10 This matter is before the Court for screening of Plaintiff’s application to proceed in forma 11 pauperis (“IFP”) and Complaint. ECF Nos.1, 1-1. Plaintiff’s IFP is complete and demonstrates an 12 inability to pay filing fees. Thus, the Court grants Plaintiff’s IFP status. 13 I. SCREENING THE COMPLAINT 14 Upon granting a request to proceed in forma pauperis, a court must screen the complaint under 15 28 U.S.C. § 1915(e)(2). In its review, the court must identify any cognizable claims and dismiss any 16 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 17 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). 18 Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 19 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 20 elements: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) 21 that the alleged violation was committed by a person acting under color of state law. West v. Atkins, 22 487 U.S. 42, 48 (1988). 23 In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation 24 Reform Act, a federal court must dismiss a prisoner’s claim, if “the allegation of poverty is untrue,” 25 or if the action “is frivolous or malicious, fails to state a claim on which relief may be granted, or 26 seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). 27 Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for 1 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a 2 complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions 3 as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could 4 not be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 5 Review under Rule 12(b)(6) is essentially a ruling on a question of law. Chappel v. Lab. 6 Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper 7 only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would 8 entitle him or her to relief. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this 9 determination, the court takes as true all allegations of material fact stated in the complaint, and the 10 court construes them in the light most favorable to the plaintiff. Warshaw v. Xoma Corp., 74 F.3d 11 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 12 formal pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard 13 under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than 14 mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic 15 recitation of the elements of a cause of action is insufficient. Id. 16 Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, 17 because they are no more than [mere] conclusions, are not entitled to the assumption of truth.” 18 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the framework of 19 a complaint, they must be supported with factual allegations.” Id. “When there are well-pleaded 20 factual allegations, a court should assume their veracity and then determine whether they plausibly 21 give rise to an entitlement to relief.” Id. “Determining whether a complaint states a plausible claim 22 for relief … [is] a context-specific task that requires the reviewing court to draw on its judicial 23 experience and common sense.” Id. 24 Finally, all or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if 25 the prisoner’s claims lack an arguable basis either in law or in fact. This includes claims based on 26 legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or 27 claims of infringement of a legal interest which clearly does not exist), as well as claims based on 1 fanciful factual allegations (e.g., fantastic or delusional scenarios). Neitzke v. Williams, 490 U.S. 319, 2 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 3 II. DISCUSSION 4 Plaintiff’s Complaint offers a slim set of facts suggesting a judge ordered Plaintiff to change 5 into an orange jumpsuit, which included taking off a belt. ECF No. 1-1 at 4. This appears to have 6 led to a jail guard alleging Plaintiff almost hit him followed by the jailer breaking Plaintiff’s rib. Id. 7 Plaintiff sues the Henderson Police Department (“HPD”) alleging excessive force. Id. at 3. 8 To state a claim under 42 U.S.C. § 1983 against the HPD, Plaintiff must allege a 9 constitutional violation arising out of an official department policy, practice, or custom. Monell v. 10 Department of Social Services of N.Y., 436 U.S. 658, 690 (1978); Tsao v. Desert Palace, Inc., 698 11 F.3d 1128, 1138-39 (9th Cir. 2012); Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249 (9th 12 Cir. 2010). “First, a local government may be held liable ‘when implementation of its official 13 policies or established customs inflicts the constitutional injury.’” Clouthier, 591 F.3d at 1249 14 (quoting Monell, 436 U.S. at 708 (Powell, J. concurring)). “Second, under certain circumstances, a 15 local government may be held liable under § 1983 for acts of omission, when such omissions amount 16 to the local government’s own official policy.” Id. “Third, a local government may be held liable 17 under § 1983 when ‘the individual who committed the constitutional tort was an official with final 18 policy-making authority’ or such an official ‘ratified a subordinate’s unconstitutional decision or 19 action and the basis for it.’” Id. at 1250 (quoting Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th 20 Cir. 1992)). 21 A single act by a non-policymaking official does not show the existence of a policy, custom, 22 or practice. Rivera v. County of Los Angeles, 745 F.3d 384, 389 (9th Cir. 2014). A municipal 23 defendant may not be sued solely because an injury was inflicted by one of its employees or agents. 24 Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). “Only if a plaintiff shows that 25 his injury resulted from a ‘permanent and well settled’ practice may liability attach for injury 26 resulting from a local government custom.” McDade v. West, 223 F.3d 1135, 1141 (9th Cir. 2000) 27 (citation omitted). The Iqbal/Twombly pleading standard applies to Monell claims. AE ex rel. 1 Here, Plaintiff’s claims against the HPD alleges a single jailer used excessive force and broke 2 his rib. While the Court does not condone such conduct, if it occurred as Plaintiff alleges, this 3 allegation does not state a claim based upon an official policy, whether explicit or implicit, against 4 HPD. There are no facts alleged demonstrating the actions of the unnamed jailer were based on a 5 well settled policy, custom or practice adopted by the HPD. Plaintiff fails to plead the jailer alleged 6 to have committed the constitutional tort was an official with final policy-making authority or that 7 any such official ratified the jailer’s alleged unconstitutional actions. 8 Plaintiff also does not state an excessive force claim against the unnamed jailer. To state an 9 Eighth Amendment claim for excessive force against the individual jailer, Plaintiff must allege the 10 defendant acted maliciously and sadistically for the very purpose of causing him harm, rather than 11 to preserve order and discipline within the prison. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); 12 Whitley v. Albers, 475 U.S. 312, 320-21 (1986). When evaluating such a claim, the Court considers: 13 (1) the need for the use of force; (2) the relationship between the need for force and the amount used; 14 (3) the extent of injury inflicted; (4) the extent of the threat the officers reasonably perceived the 15 plaintiff to pose to staff and inmate safety; and (5) any efforts made to temper the severity of the 16 forceful response. Hudson, 503 U.S. at 7; Wilkins v. Ramirez, 455 F.Supp.2d 1080, 1090 (S.D. Cal. 17 2006). Here, Plaintiff’s single sentence allegation does not establish the jailer acted maliciously and 18 sadistically for the purpose of causing Plaintiff harm. 19 III. ORDER 20 IT IS HEREBY ORDERED that Plaintiff’s application to proceed in forma pauperis is 21 GRANTED. 22 IV. RECOMMENDATION 23 IT IS HEREBY RECOMMENDED that Plaintiff’s claim against the Henderson Police 24 Department under Monell be dismissed without prejudice. 25 IT IS FURTHER RECOMMENDED that Plaintiff be given one opportunity to file an 26 amended complaint that either pleads a claim against the Henderson Police Department that includes 27 facts sufficient to state the conduct of the jailer was acting pursuant to an unconstitutional official 1 || seeks to amend his Complaint he must file his amended complaint no later than April 28, 2023. TI 2 || amended complaint must be complete in and of itself. This means all facts supporting all clain 3 || must be contained in the amended complaint. The Court cannot look back to Plaintiffs origin 4 || Complaint for any purposes because, upon filing the amended complaint, Plaintiffs origin 5 || Complaint is nullified. 6 IT IS FURTHER RECOMMENDED that if Plaintiff does not file an amended complaint « 7 || or before April 28, 2023, this matter be dismissed without prejudice. 8 DATED this 21st day of March, 2023.
10 . ELA J.Y 1 UNITED STATES MAGISTRATE JUDGE 12 NOTICE 13 Under Local Rule IB 3-2, any objection to this Finding and Recommendation must be in 14 || writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has 15 |} held that the courts of appeal may determine that an appeal has been waived due to the failure to 16 || file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit 17 || has also held that (1) failure to file objections within the specified time and (2) failure to properly 18 |} address and brief the objectionable issues waives the right to appeal the District Court’s order 19 || and/or appeal factual issues from the order of the District Court. Martinez v. Yist, 951 F.2d 1153, 20 || 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 21 22 23 24 25 26 27 28