1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN FRANCIS DALY No. 2:23-cv-1764 AC P 12 Plaintiff, 13 v. ORDER 14 RYAN WAKEFIELD, et al., 15 Defendants. 16 17 Plaintiff, a county prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 18 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). ECF No. 2. Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 II. Statutory Screening of Prisoner Complaints 4 The court is required to screen complaints brought by prisoners seeking relief against “a 5 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 6 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 12 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 15 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 16 Franklin, 745 F.2d at 1227-28 (citations omitted). 17 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 20 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 22 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 23 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 24 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 25 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain 27 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 28 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 1 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 2 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 3 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 4 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 5 content that allows the court to draw the reasonable inference that the defendant is liable for the 6 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 7 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 8 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 9 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 10 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 11 III. Complaint 12 The complaint alleges that defendant Wakefield used excessive force when arresting 13 plaintiff by throwing plaintiff hard onto the ground after he was handcuffed and without 14 provocation. ECF No. 1 at 3. After plaintiff was taken to the police station, defendant Hernandez 15 refused to take plaintiff’s complaint of excessive force seriously and did not document his injuries 16 during booking. Id. Plaintiff requests immediate release from custody and dismissal of all 17 charges. Id. at 6. 18 IV. Defendant Wakefield 19 Claims that law enforcement officers used excessive force during an arrest are analyzed 20 under the Fourth Amendment and its “reasonableness” standard. Graham v. Connor, 490 U.S. 21 386, 394-95 (1989). Courts evaluating excessive force claims ask whether the officer’s actions 22 were “objectively reasonable” based on the facts and circumstances facing the officer when the 23 force was used. Id. at 397 (citations omitted). The right to make an arrest “necessarily carries 24 with it the right to use some degree of physical coercion or threat thereof to effect it,” thus not all 25 uses of physical force violate the Fourth Amendment. Id. at 396. 26 Here, plaintiff alleges that Wakefield threw him on the ground without provocation and 27 after he was already handcuffed. These allegation are enough to state a claim for excessive force.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN FRANCIS DALY No. 2:23-cv-1764 AC P 12 Plaintiff, 13 v. ORDER 14 RYAN WAKEFIELD, et al., 15 Defendants. 16 17 Plaintiff, a county prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 18 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). ECF No. 2. Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 II. Statutory Screening of Prisoner Complaints 4 The court is required to screen complaints brought by prisoners seeking relief against “a 5 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 6 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 12 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 15 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 16 Franklin, 745 F.2d at 1227-28 (citations omitted). 17 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 20 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 22 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 23 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 24 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 25 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain 27 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 28 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 1 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 2 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 3 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 4 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 5 content that allows the court to draw the reasonable inference that the defendant is liable for the 6 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 7 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 8 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 9 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 10 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 11 III. Complaint 12 The complaint alleges that defendant Wakefield used excessive force when arresting 13 plaintiff by throwing plaintiff hard onto the ground after he was handcuffed and without 14 provocation. ECF No. 1 at 3. After plaintiff was taken to the police station, defendant Hernandez 15 refused to take plaintiff’s complaint of excessive force seriously and did not document his injuries 16 during booking. Id. Plaintiff requests immediate release from custody and dismissal of all 17 charges. Id. at 6. 18 IV. Defendant Wakefield 19 Claims that law enforcement officers used excessive force during an arrest are analyzed 20 under the Fourth Amendment and its “reasonableness” standard. Graham v. Connor, 490 U.S. 21 386, 394-95 (1989). Courts evaluating excessive force claims ask whether the officer’s actions 22 were “objectively reasonable” based on the facts and circumstances facing the officer when the 23 force was used. Id. at 397 (citations omitted). The right to make an arrest “necessarily carries 24 with it the right to use some degree of physical coercion or threat thereof to effect it,” thus not all 25 uses of physical force violate the Fourth Amendment. Id. at 396. 26 Here, plaintiff alleges that Wakefield threw him on the ground without provocation and 27 after he was already handcuffed. These allegation are enough to state a claim for excessive force. 28 However, the only relief plaintiff seeks is immediate release from custody and dismissal of all 1 charges against him, neither of which is available in a § 1983 action. See Skinner v. Switzer, 562 2 U.S. 521, 533-34 (2011) (a writ of habeas corpus is the “exclusive remedy” for the prisoner who 3 seeks “‘immediate or speedier release’” from confinement). 4 In light of the factual allegations which state a claim for excessive force under the Fourth 5 Amendment, plaintiff will be granted leave to file an amended complaint seeking any form of 6 relief, including monetary damages, which are available in this § 1983 action. If plaintiff wishes 7 to contest the constitutionality of his confinement, he must do so in a petition for a writ of habeas 8 corpus. Plaintiff is further advised that before he may file a habeas petition in this court, he must 9 first exhaust any constitutional claims by raising them in the California Supreme Court. 28 10 U.S.C. § 2254(b)(1). 11 V. Defendant Hernandez 12 “Liability under § 1983 must be based on the personal involvement of the defendant.” 13 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (citation omitted). Plaintiff does not 14 make any allegations against Hernandez other than her failure to document his injuries or take his 15 complaint of excessive force seriously, and there is no indication that Hernandez’ failure resulted 16 in any further injury to plaintiff. Because plaintiff has not identified any actions of Hernandez 17 that violated his constitutional rights or caused such a violation, he has not stated a claim against 18 her. 19 VI. Leave to Amend 20 For the reasons set forth above, the court finds that although plaintiff has stated a claim 21 against defendant Wakefield, the complaint does seek an available form of relief. The complaint 22 also fails to state a cognizable claim against defendant Hernandez. However, it appears that 23 plaintiff may be able to allege facts to remedy this and he will be given the opportunity to amend 24 the complaint if he desires. 25 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 26 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 27 423 U.S. 362, 370-71 (1976). The complaint must also allege in specific terms how each named 28 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 1 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 2 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 3 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 4 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 5 268 (9th Cir. 1982) (citations omitted). 6 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 7 his amended complaint complete. Local Rule 220 requires that an amended complaint be 8 complete in itself without reference to any prior pleading. This is because, as a general rule, an 9 amended complaint supersedes any prior complaints. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 10 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 11 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 12 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint, 13 any previous complaints no longer serve any function in the case. Therefore, in an amended 14 complaint, as in an original complaint, each claim and the involvement of each defendant must be 15 sufficiently alleged. 16 VII. Plain Language Summary of this Order for a Pro Se Litigant 17 Your request to proceed in forma pauperis is granted. That means you do not have to pay 18 the entire filing fee now. You will pay it over time, out of your trust account. 19 Your complaint will not be served because (1) the relief you have requested (release from 20 custody and dismissal of charges) is not available in a civil rights action, and (2) you have not 21 stated any claims for relief against defendant Hernandez. 22 You may amend your complaint to try to fix these problems. Be sure to provide facts that 23 show exactly what each defendant did to violate your rights or to cause a violation of your rights. 24 If you choose to file an amended complaint, it must include all claims you want to bring. 25 You must also request a form of relief that is available in a civil rights action, such as money 26 damages. Once an amended complaint is filed, the court will not look at any information in the 27 original complaint. Any claims and information not in the amended complaint will not be 28 considered. 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is GRANTED. 3 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 4 | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 5 || § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 6 || appropriate agency filed concurrently herewith. 7 3. Plaintiffs complaint fails to request relief that can be granted in a § 1983 action or 8 || state a claim upon which relief may be granted against defendant Hernandez, see 28 U.S.C. 9 | § 1915A, and will not be served. 10 4. Within thirty days from the date of service of this order, plaintiff may file an amended 11 || complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 12 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 13 || number assigned this case and must be labeled “First Amended Complaint.” Failure to file an 14 || amended complaint in accordance with this order will result in a recommendation that this action 15 || be dismissed. 16 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 17 || form used in this district. 18 | DATED: January 10, 2024 . . 19 Cttierr— Clare 0 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28