1 2 3 4 5 6 7 10 11 JESSE I. GOMEZ, Case No. 1:21-cv-01170-NONE-BAM 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN 13 v. CLAIMS 14 KINGS COUNTY SHERIFF (Doc. 9) DEPARTMENT, et al., Defendants. 16 17 18 Plaintiff Jesse I. Gomez (“Plaintiff”) is a county jail inmate proceeding pro se and in 19 forma pauperis in this civil rights action under 42 U.S.C. § 1983. On August 20, 2021, the Court 20 screened Plaintiff’s complaint and granted him leave to amend. (Doc. 6.) Plaintiff’s first 21 amended complaint, filed on September 8, 2021, is currently before the Court for screening. 22 (Doc. 9.) 23 I. Screening Requirement and Standard 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 27 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 28 1 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b); 2 1915(e)(2)(B)(ii). 3 A complaint must contain “a short and plain statement of the claim showing that the 4 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 5 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 7 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 8 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 9 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 10 To survive screening, Plaintiff’s claims must be facially plausible, which requires 11 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 12 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 13 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 14 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 15 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 16 II. Plaintiff’s Allegations 17 Plaintiff is currently housed at the Kings County Jail and is a pretrial detainee. Plaintiff 18 names the following defendants: Sr. Deputy Fausnett and Deputy Verhoeven. In his sole 19 amended claim, Plaintiff asserts violations of the Eighth and Ninth Amendments of the United 20 States Constitution. He alleges as follows:
21 On 1/8/2001 I was pulled over for felony evading on Sherman Ave in Corcoran California. Upon exiting the car with hands up, is when Deputy Fausnett released 22 his K9 dog “Dash.” Immediately after K9 locked & bit my arms is when Officers Fausnett & Verhoeven began their excessive force & police brutality. Fausnett 23 struck me behind the head with fist while dog was mauling at me. I attempted to cover my face from the viscious [sic] dog and punches thrown by defendants. At 24 this point K9 dog Dash began biting my right pinky finger chewing/mauling the flesh til he severed it from my body. During this whole time I was undergoing the 25 dog wripping [sic] off my finger Defendants continued to beat me violently. I was screaming for my life and begging defendants to stop but they didn’t. Defendants 26 Fausnett & Verhoeven beat me badly and even mocked me by picking up my pinky finger while placing me in the ambulance stating: “Do you want your pinky back.” 27 [¶] Further more at no time was any attempt made to save my finger. I have no clue what officers did with my finger still to this day. While in hospital officers cite and 28 released me. I also had to have surgery on my right hand. My bone was sticking 1 out from where finger used to be. Doctors cut my bone with surgical scissors and stitched my hand. I had about (7) seven stiches in my right hand and (6) six stiches 2 in left hand. I sat in Fresno Regional Center for about 5 day(s). 3 (Doc. 9 at 3-4.) Plaintiff requests compensatory and punitive damages. (Id. at 5.) 4 III. Discussion 5 A. Excessive Force 6 Although Plaintiff appears to base his excessive force claim on the Eighth Amendment, a 7 claim of excessive force in the context of an arrest or investigatory stop implicates the Fourth 8 Amendment right to be free from “unreasonable ... seizures.” U.S. Const. amend. IV; see Graham 9 v. Connor, 490 U.S. 386, 394 (1989). “Determining whether the force used to effect a particular 10 seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature 11 and quality of the intrusion on the individual's Fourth Amendment interests’ against the 12 countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (citations omitted). 13 Whether a law enforcement officer’s use of force was “objectively reasonable” depends upon the 14 totality of the facts and circumstances confronting him. Smith v. City of Hemet, 394 F.3d 689, 701 15 (9th Cir.) (en banc) (quoting Graham, 490 U.S. at 397), cert. denied, 545 U.S. 1128 (2005). 16 A court must “first assess the quantum of force used to arrest the plaintiff by considering 17 the type and amount of force inflicted.” Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th 18 Cir. 2003) (internal quotation marks and brackets omitted). Second, a court balances the 19 government’s countervailing interests. This involves considering “the severity of the crime at 20 issue, whether the suspect poses an immediate threat to the safety of the officers or others, and 21 whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. 22 at 396. Using these factors, a court must determine “whether the force employed was greater than 23 is reasonable under the circumstances.” Drummond, 343 F.3d at 1058. 24 Liberally construing the allegations in the first amended complaint, the Court finds that 25 Plaintiff alleges a cognizable claim for excessive force in violation of the Fourth Amendment 26 against Defendants Fausnett and Verhoeven. 27 B. Deliberate Indifference to Medical Needs 28 Although not entirely clear, Plaintiff appears to be attempting to assert a claim regarding 1 his medical needs against defendants. A claim of inadequate medical care brought by a pretrial 2 detainee arises under the Fourteenth Amendment and is governed by an “objective deliberate 3 indifference standard.” See Gordon v. County of Orange, 888 F.3d 1118, 1124-1125 (9th Cir. 4 2018).
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1 2 3 4 5 6 7 10 11 JESSE I. GOMEZ, Case No. 1:21-cv-01170-NONE-BAM 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN 13 v. CLAIMS 14 KINGS COUNTY SHERIFF (Doc. 9) DEPARTMENT, et al., Defendants. 16 17 18 Plaintiff Jesse I. Gomez (“Plaintiff”) is a county jail inmate proceeding pro se and in 19 forma pauperis in this civil rights action under 42 U.S.C. § 1983. On August 20, 2021, the Court 20 screened Plaintiff’s complaint and granted him leave to amend. (Doc. 6.) Plaintiff’s first 21 amended complaint, filed on September 8, 2021, is currently before the Court for screening. 22 (Doc. 9.) 23 I. Screening Requirement and Standard 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 27 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 28 1 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b); 2 1915(e)(2)(B)(ii). 3 A complaint must contain “a short and plain statement of the claim showing that the 4 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 5 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 7 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 8 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 9 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 10 To survive screening, Plaintiff’s claims must be facially plausible, which requires 11 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 12 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 13 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 14 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 15 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 16 II. Plaintiff’s Allegations 17 Plaintiff is currently housed at the Kings County Jail and is a pretrial detainee. Plaintiff 18 names the following defendants: Sr. Deputy Fausnett and Deputy Verhoeven. In his sole 19 amended claim, Plaintiff asserts violations of the Eighth and Ninth Amendments of the United 20 States Constitution. He alleges as follows:
21 On 1/8/2001 I was pulled over for felony evading on Sherman Ave in Corcoran California. Upon exiting the car with hands up, is when Deputy Fausnett released 22 his K9 dog “Dash.” Immediately after K9 locked & bit my arms is when Officers Fausnett & Verhoeven began their excessive force & police brutality. Fausnett 23 struck me behind the head with fist while dog was mauling at me. I attempted to cover my face from the viscious [sic] dog and punches thrown by defendants. At 24 this point K9 dog Dash began biting my right pinky finger chewing/mauling the flesh til he severed it from my body. During this whole time I was undergoing the 25 dog wripping [sic] off my finger Defendants continued to beat me violently. I was screaming for my life and begging defendants to stop but they didn’t. Defendants 26 Fausnett & Verhoeven beat me badly and even mocked me by picking up my pinky finger while placing me in the ambulance stating: “Do you want your pinky back.” 27 [¶] Further more at no time was any attempt made to save my finger. I have no clue what officers did with my finger still to this day. While in hospital officers cite and 28 released me. I also had to have surgery on my right hand. My bone was sticking 1 out from where finger used to be. Doctors cut my bone with surgical scissors and stitched my hand. I had about (7) seven stiches in my right hand and (6) six stiches 2 in left hand. I sat in Fresno Regional Center for about 5 day(s). 3 (Doc. 9 at 3-4.) Plaintiff requests compensatory and punitive damages. (Id. at 5.) 4 III. Discussion 5 A. Excessive Force 6 Although Plaintiff appears to base his excessive force claim on the Eighth Amendment, a 7 claim of excessive force in the context of an arrest or investigatory stop implicates the Fourth 8 Amendment right to be free from “unreasonable ... seizures.” U.S. Const. amend. IV; see Graham 9 v. Connor, 490 U.S. 386, 394 (1989). “Determining whether the force used to effect a particular 10 seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature 11 and quality of the intrusion on the individual's Fourth Amendment interests’ against the 12 countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (citations omitted). 13 Whether a law enforcement officer’s use of force was “objectively reasonable” depends upon the 14 totality of the facts and circumstances confronting him. Smith v. City of Hemet, 394 F.3d 689, 701 15 (9th Cir.) (en banc) (quoting Graham, 490 U.S. at 397), cert. denied, 545 U.S. 1128 (2005). 16 A court must “first assess the quantum of force used to arrest the plaintiff by considering 17 the type and amount of force inflicted.” Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th 18 Cir. 2003) (internal quotation marks and brackets omitted). Second, a court balances the 19 government’s countervailing interests. This involves considering “the severity of the crime at 20 issue, whether the suspect poses an immediate threat to the safety of the officers or others, and 21 whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. 22 at 396. Using these factors, a court must determine “whether the force employed was greater than 23 is reasonable under the circumstances.” Drummond, 343 F.3d at 1058. 24 Liberally construing the allegations in the first amended complaint, the Court finds that 25 Plaintiff alleges a cognizable claim for excessive force in violation of the Fourth Amendment 26 against Defendants Fausnett and Verhoeven. 27 B. Deliberate Indifference to Medical Needs 28 Although not entirely clear, Plaintiff appears to be attempting to assert a claim regarding 1 his medical needs against defendants. A claim of inadequate medical care brought by a pretrial 2 detainee arises under the Fourteenth Amendment and is governed by an “objective deliberate 3 indifference standard.” See Gordon v. County of Orange, 888 F.3d 1118, 1124-1125 (9th Cir. 4 2018). In order to state a claim against any defendant for denial of medical care while a pretrial 5 detainee, Plaintiff must allege that the defendant: (1) “made an intentional decision with respect 6 to the conditions under which the plaintiff was confined”; (2) the “conditions put the plaintiff at 7 substantial risk of suffering serious harm”; (3) the “defendant did not take reasonable available 8 measures to abate that risk, even though a reasonable official in the circumstances would have 9 appreciated the high degree of risk involved—making the consequences of the defendant’s 10 conduct obvious”; and (4) “by not taking such measures, the defendant caused the plaintiff's 11 injuries.” Gordon, 888 F.3d at 1125. 12 Liberally construed, Plaintiff’s first amended complaint alleges a deliberate indifference 13 claim against defendants in connection with their purported failure to save Plaintiff’s severed 14 finger. 15 C. Ninth Amendment 16 Plaintiff again alleges a violation of the Ninth Amendment. As Plaintiff previously was 17 informed, the Ninth Amendment provides that “the enumeration in the Constitution, of certain 18 rights, shall not be construed to deny or disparage others retained by the people.” Strandberg v. 19 City of Helena, 791 F.2d 744, 748 (9th Cir. 1986). While “[i]t has been argued that the ninth 20 amendment protects rights not enunciated in the first eight amendments[,] “the ninth amendment 21 has never been recognized as independently securing any constitutional right, for purposes of 22 pursuing a civil rights claim.” Strandberg, 791 F.2d at 748. “Causes of action based on the Ninth 23 Amendment fail to state a legal claim.” Williams v. Fresno Cty. Dep’t of Soc. Servs., No. 1:21- 24 cv-00596-DAD-SAB, 2021 WL 3033578, at *6 (E.D. Cal. July 19, 2021) (citing Ralls v. 25 Facebook, 221 F.Supp.3d 1237, 1245 (W.D. Wash. 2016)). Plaintiff may not pursue a claim 26 pursuant to the Ninth Amendment. 27 IV. Conclusion and Recommendation 28 Based on the above, the Court finds that Plaintiff’s first amended complaint states a 1 cognizable claim against Defendants Fausnett and Verhoeven for excessive force in violation of 2 the Fourth Amendment and deliberate indifference to medical needs in violation of the Fourteenth 3 Amendment, but fails to state any other cognizable claims. 4 Despite being provided with the relevant pleading and legal standards, Plaintiff has been 5 unable to cure the remaining deficiencies and further leave to amend is not warranted. Lopez v. 6 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 7 For the reasons stated above, IT IS HEREBY RECOMMENDED as follows: 8 1. This action proceed on Plaintiff’s first amended complaint, filed on September 8, 9 2021, against Defendants Fausnett and Verhoeven for excessive force in violation of the Fourth 10 Amendment and deliberate indifference to serious medical needs in violation of the Fourteenth 11 Amendment; and 12 2. All other claims and defendants be dismissed from this action, without prejudice, 13 based on Plaintiff’s failure to state claims upon which relief may be granted. 14 These Findings and Recommendation will be submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 16 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 17 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 18 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 19 specified time may result in the waiver of the “right to challenge the magistrate’s factual 20 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 21 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 IT IS SO ORDERED. 23
24 Dated: October 18, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25
26 27 28