Hernandez v. Washburn

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 ADAN HERNANDEZ, Case No. 1: 22-cv-00092-JLT-SAB

12 Plaintiff, SCREENING ORDER GRANTING PLAINTIFF LEAVE TO FILE AN 13 v. AMENDED COMPLAINT

14 M. WASHBURN, et al., (ECF No. 1)

15 Defendants. THIRTY DAY DEADLINE

16 17 18 19 20 Adan Hernandez (“Plaintiff”), proceeding pro se and in forma pauperis, filed this civil 21 rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s complaint, 22 filed on January 21, 2022. (ECF No. 1.) 23 I. 24 SCREENING REQUIREMENT 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 27 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 28 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 1 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 2 1915(e)(2)(B). 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)). Moreover, Plaintiff must demonstrate 8 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 9 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 10 In reviewing a pro se complaint, the Court is to liberally construe the pleadings and accept 11 as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 12 (2007); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (quoting Hebbe v. 13 Pliler, 627 F.3d 338, 342 (9th Cir. 2010)) (“where the petitioner is pro se, particularly in civil 14 rights cases, [courts should] construe the pleadings liberally and . . . afford the petitioner the 15 benefit of any doubt.”); United States v. Qazi, 975 F.3d 989, 992–93 (9th Cir. 2020) (“It is an 16 entrenched principle that pro se filings however inartfully pleaded are held to less stringent 17 standards than formal pleadings drafted by lawyers.”) (citations and internal quotations omitted). 18 To survive screening, Plaintiff’s claims must be facially plausible, which requires 19 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 20 for the misconduct alleged. Iqbal, 556 U.S. at 678–79; Moss v. U.S. Secret Service, 572 F.3d 21 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not 22 sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of 23 satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 24 II. 25 COMPLAINT ALLEGATIONS 26 Plaintiff filed this complaint while incarcerated, however the allegations described appear 27 to have occurred while Plaintiff was being arrested. Plaintiff is not challenging his conditions of 28 confinement, except as in relation to the injuries suffered while being arrested and treated at a 1 hospital immediately following arrest. The Court accepts Plaintiff’s allegations in the complaint 2 as true only for the purpose of the sua sponte screening requirement under 28 U.S.C. § 1915. 3 Plaintiff names the following members of the Kings County Sheriff’s Office as 4 Defendants: (1) M. Washburn; (2) C. Barsteceanu; and (3) D. Dodd. (Compl. 1-2,1 ECF No. 1.) 5 Plaintiff’s first claim is for excessive force brought pursuant to the Eighth Amendment. 6 Plaintiff’s factual support for the claim is as follows: “I was detained by a KCSO Officer who 7 then had me controlled and subdued in handcuffs. While I was held down on the ground the 8 Officer M. Washburn KCSO K9 unit deployed his K9 while there was no need to.” (Compl. 3.) 9 Plaintiff’s second claim is for “Failure to Protect,” and Plaintiff states: “The supporting 10 facts are held on the Bod Cams of the KCSO Officers on duty the day of my arrest. The Officers 11 failed to intervene and detain me peaceably.” (Compl. 4.) 12 Plaintiff’s third claim is for “Healthcare,” checking the box for “Medical care,” and 13 Plaintiff states: “The arresting agency KCSO transported me by ambulance to the Visalia Kaweah 14 Delta Hospital who failed to stitch and dress the K9 bite to my left thigh in which I have suffered 15 for three weeks after my arrested my leg was bleeding.” (Compl. 5.) 16 III. 17 DISCUSSION 18 A. Federal Rule of Civil Procedure 8 19 Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim 20 showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). “Such a statement must 21 simply give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which 22 it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (citation and internal quotation 23 marks omitted). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 24 elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 25 556 U.S. at 678 (citation omitted). This is because, while factual allegations are accepted as true, 26 legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556-57; Moss v. U.S. Secret Serv.,

27 1 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the CM/ECF electronic court docketing system. 28 1 572 F.3d 962, 969 (9th Cir. 2009). Therefore, Plaintiff must set forth “sufficient factual matter, 2 accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” A claim has facial 3 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 4 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 5 (citations and internal quotation marks omitted). 6 As currently pled, Plaintiff’s complaint does not contain enough factual details to permit 7 the Court to draw the reasonable inference that any of the Defendants are liable for the 8 misconduct alleged. Iqbal, 556 U.S. at 678. Plaintiff’s allegations are vague and conclusory 9 statements that excessive force was used. No details such as the date of the incident, where the 10 incident occurred, the crime Plaintiff was being arrested for, or other basic facts are provided. 11 These conclusory statements, insufficiently supported by factual details, do not suffice to state 12 any claim. For these reasons, Plaintiff’s complaint fails to comply with Rule 8’s pleading 13 standard. 14 If Plaintiff chooses to file an amended complaint, he should consider the legal standards 15 the Court provides in the following sections. 16 B. Section 1983, Supervisory Liability, and Municipal Liability 17 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or 18 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 19 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 20 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To state a claim under section 1983, a 21 plaintiff is required to show that (1) each defendant acted under color of state law and (2) each 22 defendant deprived her of rights secured by the Constitution or federal law. Long, 442 F.3d at 23 1185 (9th Cir. 2006). There is no respondeat superior liability under section 1983, and therefore, 24 each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 677. To state a 25 claim, Plaintiff must demonstrate that each defendant personally participated in the deprivation of 26 his rights. Jones, 297 F.3d at 934. 27 In other words, to state a claim for relief under § 1983, Plaintiff must link each named 28 defendant with some affirmative act or omission that demonstrates a violation of his federal 1 rights. The only named Defendant that Plaintiff mentions in the factual allegations is M. 2 Washburn. 3 1. Health Care Claim 4 Plaintiff states that the arresting agency and sheriffs transported Plaintiff by ambulance to 5 a hospital for treatment. Plaintiff then states that the hospital failed to stitch and dress his wound. 6 (Compl. 5.) Plaintiff has not described any actions in relation to this claim that link any named 7 Defendant to an act or omission related to the lack of medical treatment. Plaintiff has failed to 8 state any cognizable claim related to his treatment following arrest. 9 C. Excessive Force 10 “A claim that law-enforcement officers used excessive force to effect a seizure is 11 governed by the Fourth Amendment’s ‘reasonableness’ standard.” Plumhoff v. Rickard, 572 U.S. 12 765, 774 (2014); Graham v. Connor, 490 U.S. 386, 395 (1989) (holding “that all claims that law 13 enforcement officers have used excessive force — deadly or not — in the course of an arrest, 14 investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth 15 Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ 16 approach.”) (emphasis in original); see also Price v. Sery, 513 F.3d 962, 967 (9th Cir. 2008). 17 Because reasonableness “is not capable of precise definition or mechanical application,” 18 the inquiry requires “attention to the facts and circumstances of each particular case.” Graham, 19 490 U.S. at 396. Reasonableness “must be judged from the perspective of a reasonable officer on 20 the scene, rather than with the 20/20 vision of hindsight.” Id. “Not every push or shove, even if 21 it may later seem unnecessary in the peace of a judge’s chambers,” violates the Fourth 22 Amendment. Graham, 490 U.S. at 396 (citing Johnson v. Glick, 481 F. 2d 1028, 1033 (2nd Cir. 23 1973)). Rather, “[t]he calculus of reasonableness must embody allowance for the fact that police 24 officers are often forced to make split-second judgments — in circumstances that are tense, 25 uncertain, and rapidly evolving — about the amount of force that is necessary in a particular 26 situation.” Graham, 490 U.S. at 396–97; see also Ames v. King County, 846 F.3d 340, 348 (9th 27 Cir. 2017). Determination of reasonableness therefore requires consideration of the totality of the 28 circumstances. Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011). 1 The Ninth Circuit has articulated a three-step analysis to evaluate excessive force claims 2 under the framework set forth by the Supreme Court in Graham v. Connor. See Thompson v. 3 Rahr, 885 F.3d 582, 586 (9th Cir. 2018) (citing Espinosa v. City & Cty. of S.F., 598 F.3d 528, 4 537 (9th Cir. 2010)). First, the Court must assess “the severity of the intrusion” “by considering 5 ‘the type and amount of force inflicted.’” Id. Second, the Court must evaluate the government’s 6 interest “by assessing (1) the severity of the crime; (2) whether the suspect posed an immediate 7 threat to the officers’ or public’s safety; and (3) whether the suspect was resisting arrest or 8 attempting to escape.” Espinosa, 598 F.3d at 537 (quoting Graham, 490 U.S. at 396). Third, the 9 Court must balance “the gravity of the intrusion on the individual against the government’s need 10 for that intrusion . . . to determine whether the force used was ‘greater than is reasonable under 11 the circumstances.’” Id. (citing Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002)). 12 Plaintiff’s complaint is not expressly brought under the Fourth Amendment. Even if 13 Plaintiff had brought a Fourth Amendment claim for excessive force, there are insufficient factual 14 details to state a claim under these applicable legal standards. 15 D. Plaintiff’s Eighth Amendment Claim and Failure to Protect 16 The Eighth Amendment proscribes a freedom from cruel and unusual punishment. U.S. 17 Const. amend. VIII. The prohibition of cruel and unusual punishment applies only after 18 conviction and sentencing. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Thus, 19 a claim of excessive force in the context of an arrest, as here, implicates the Fourth Amendment 20 right to be free from “unreasonable . . . seizures,” not the Eighth Amendment. U.S. Const. 21 amend. IV; see Graham, 490 U.S. at 394; see also Gibson v. County of Washoe, 290 F.3d 1175, 22 1187 (9th Cir. 2002) (“[b]ecause [the plaintiff] had not been convicted of a crime, but had only 23 been arrested, his rights derive from the due process clause rather than the Eighth Amendment’s 24 protection against cruel and unusual punishment.”), overruled on other grounds by Castro v. Cnty. 25 of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). 26 Prison officials have a duty under the Eighth Amendment to protect prisoners from 27 violence at the hands of other prisoners because being violently assaulted in prison is simply not 28 part of the penalty that criminal offenders pay for their offenses against society. Farmer, 511 U.S. 1 at 833-34 (quotation marks omitted); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009); 2 Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). However, prison officials are liable 3 under the Eighth Amendment only if they demonstrate deliberate indifference to conditions 4 posing a substantial risk of serious harm to an inmate; and it is well settled that deliberate 5 indifference occurs when an official acted or failed to act despite his knowledge of a substantial 6 risk of serious harm. Farmer, 511 U.S. at 834, 841 (quotations omitted); Clem, 566 F.3d at 1181; 7 Hearns, 413 F.3d at 1040. 8 Plaintiff asserts an excessive force claim solely under the Eighth Amendment. Based on 9 the aforementioned authorities, Plaintiff fails to state a claim for excessive force under the Eighth 10 Amendment. Plaintiff also has failed to state a claim for a failure to protect. 11 IV. 12 CONCLUSION AND ORDER 13 For the foregoing reasons, Plaintiff fails to state a cognizable claim and shall be granted 14 leave to file an amended complaint to cure the deficiencies identified in this order faith. Lopez, 15 203 F.3d at 1127. Plaintiff’s first amended complaint should be brief, Fed. R. Civ. P. 8(a), but it 16 must also state what each named defendant did that led to the deprivation of Plaintiff’s 17 constitutional rights, Iqbal, 556 U.S. at 678–79. Although accepted as true, the “[f]actual 18 allegations must be [sufficient] to raise a right to relief above the speculative level . . . .” 19 Twombly, 550 U.S. at 555 (citations omitted). 20 Further, Plaintiff may not change the nature of this suit by adding new, unrelated claims in 21 his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” 22 complaints). 23 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 24 Lacey v. Maricopa Cnty., 693 F.3d 896, 927. Absent court approval, Plaintiff’s first amended 25 complaint must be “complete in itself without reference to the prior or superseded pleading.” 26 E.D. Cal. L.R. 220. 27 / / / 28 / / / 1 Based on the foregoing, IT IS HEREBY ORDERED that: 2 1. The Clerk of the Court shall send Plaintiff a civil rights complaint form; 3 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 4 first amended complaint curing the deficiencies identified by the Court in this 5 order; 6 3. The first amended complaint, including attachments, shall not exceed twenty-five 7 (25) pages in length; and 8 4. If Plaintiff fails to file a first amended complaint in compliance with this order, the 9 Court will recommend to the district judge that this action be dismissed, with 10 prejudice, for failure to obey a court order, failure to prosecute, and for failure to 11 state a claim. 12 B IT IS SO ORDERED. FA. ee 14 | Dated: _ February 11, 2022

Is UNITED STATES MAGISTRATE JUDGE

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