1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HERMAN TAMRAT, Case No. 20-cv-07623-PJH
8 Plaintiff, ORDER DISMISSING CLAIMS; 9 v. DENYING MOTION TO APPOINT COUNSEL; GRANTING EXTENSION 10 ADAM MARLOWE, et al., Re: Dkt. Nos. 19, 21 Defendants. 11
12 13 Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 14 U.S.C. § 1983. The court ordered service for two defendants on a claim of excessive 15 force and dismissed the remaining claims and defendants with leave to amend. Plaintiff 16 has filed a second amended complaint. 17 DISCUSSION 18 STANDARD OF REVIEW 19 Federal courts must engage in a preliminary screening of cases in which prisoners 20 seek redress from a governmental entity or officer or employee of a governmental entity. 21 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 22 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief 23 may be granted, or seek monetary relief from a defendant who is immune from such 24 relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. 25 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement 27 of the claim showing that the pleader is entitled to relief." "Specific facts are not 1 is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) 2 (citations omitted). Although in order to state a claim a complaint “does not need detailed 3 factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] 4 to relief' requires more than labels and conclusions, and a formulaic recitation of the 5 elements of a cause of action will not do. . . . Factual allegations must be enough to 6 raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 7 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state 8 a claim to relief that is plausible on its face." Id. at 570. The United States Supreme 9 Court has recently explained the “plausible on its face” standard of Twombly: “While legal 10 conclusions can provide the framework of a complaint, they must be supported by factual 11 allegations. When there are well-pleaded factual allegations, a court should assume their 12 veracity and then determine whether they plausibly give rise to an entitlement to relief.” 13 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 14 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 15 elements: (1) that a right secured by the Constitution or laws of the United States was 16 violated, and (2) that the alleged deprivation was committed by a person acting under the 17 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 18 LEGAL CLAIMS 19 Plaintiff alleges that defendants used excessive force against him and that he 20 received improper medical care for his injuries.1 21 The Due Process Clause of the Fourteenth Amendment protects a post- 22 arraignment pretrial detainee from the use of excessive force that amounts to 23 punishment. Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (citing Bell v. Wolfish, 24 441 U.S. 520, 535-39 (1979)). To prove an excessive force claim under § 1983, a pretrial 25 detainee must show only that the “force purposely or knowingly used against him was 26 objectively unreasonable.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). “A 27 1 court must make this determination from the perspective of a reasonable officer on the 2 scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” 3 Id. “A court (judge or jury) cannot apply this standard mechanically.” Id. “[O]bjective 4 reasonableness turns on the ‘facts and circumstances of each particular case.’” Id. 5 (quoting Graham v. Connor, 490 U.S. at 396). 6 A non-exhaustive list of considerations that may bear on the reasonableness of 7 the force used include “the relationship between the need for the use of force and the 8 amount of force used; the extent of the plaintiff's injury; any effort made by the officer to 9 temper or to limit the amount of force; the severity of the security problem at issue; the 10 threat reasonably perceived by the officer; and whether the plaintiff was actively 11 resisting.” Kingsley, 135 S. Ct. at 2473. 12 Because the Kingsley standard applicable to excessive force claims by pretrial 13 detainees is purely objective, it does not matter whether the defendant understood that 14 the force used was excessive or intended it to be excessive. Castro v. Cnty. of Los 15 Angeles, 833 F.3d 1060, 1069 (9th Cir. 2016) (en banc). A pretrial detainee can prevail 16 by providing “‘objective evidence that the challenged governmental action is not rationally 17 related to a legitimate governmental objective or that it is excessive in relation to that 18 purpose.’” Id. (quoting Kingsley, 135 S. Ct. at 2473-74)) (emphasis in original). 19 A claim for a violation of a pretrial detainee’s right to adequate medical care arises 20 under the Fourteenth Amendment rather than the Eighth Amendment. See Gordon v. 21 County of Orange, 888 F.3d 1118, 1122 & n.4 (9th Cir. 2018). The claim is evaluated 22 under an objective deliberate indifference standard.
23 [T]he elements of a pretrial detainee’s medical care claim against an individual defendant under the due process clause 24 of the Fourteenth Amendment are: (i) the defendant made an intentional decision with respect to the conditions under which 25 the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant 26 did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would 27 have appreciated the high degree of risk involved—making the injuries. 1 Id. at 1125. With regard to the third element, a defendant’s conduct must be objectively 2 unreasonable – “a test that will necessarily ‘turn[] on the facts and circumstances of each 3 particular case.’” Id. (citation omitted). The four-part test described in Gordon requires 4 plaintiffs to prove more than negligence, but less than subjective intent – something akin 5 to reckless disregard. Id. 6 Plaintiff states that on June 9, 2019, defendant deputies Marlowe and Tamayo 7 knocked plaintiff to the ground and then grabbed his hands, wrists and arms painfully 8 bending them and causing injuries. He also alleges that he was slammed on the ground 9 injuring his head and later shoved into a doorframe. The case continues with these 10 allegations of excessive force against defendants Marlowe and Tamayo.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HERMAN TAMRAT, Case No. 20-cv-07623-PJH
8 Plaintiff, ORDER DISMISSING CLAIMS; 9 v. DENYING MOTION TO APPOINT COUNSEL; GRANTING EXTENSION 10 ADAM MARLOWE, et al., Re: Dkt. Nos. 19, 21 Defendants. 11
12 13 Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 14 U.S.C. § 1983. The court ordered service for two defendants on a claim of excessive 15 force and dismissed the remaining claims and defendants with leave to amend. Plaintiff 16 has filed a second amended complaint. 17 DISCUSSION 18 STANDARD OF REVIEW 19 Federal courts must engage in a preliminary screening of cases in which prisoners 20 seek redress from a governmental entity or officer or employee of a governmental entity. 21 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 22 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief 23 may be granted, or seek monetary relief from a defendant who is immune from such 24 relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. 25 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement 27 of the claim showing that the pleader is entitled to relief." "Specific facts are not 1 is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) 2 (citations omitted). Although in order to state a claim a complaint “does not need detailed 3 factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] 4 to relief' requires more than labels and conclusions, and a formulaic recitation of the 5 elements of a cause of action will not do. . . . Factual allegations must be enough to 6 raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 7 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state 8 a claim to relief that is plausible on its face." Id. at 570. The United States Supreme 9 Court has recently explained the “plausible on its face” standard of Twombly: “While legal 10 conclusions can provide the framework of a complaint, they must be supported by factual 11 allegations. When there are well-pleaded factual allegations, a court should assume their 12 veracity and then determine whether they plausibly give rise to an entitlement to relief.” 13 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 14 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 15 elements: (1) that a right secured by the Constitution or laws of the United States was 16 violated, and (2) that the alleged deprivation was committed by a person acting under the 17 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 18 LEGAL CLAIMS 19 Plaintiff alleges that defendants used excessive force against him and that he 20 received improper medical care for his injuries.1 21 The Due Process Clause of the Fourteenth Amendment protects a post- 22 arraignment pretrial detainee from the use of excessive force that amounts to 23 punishment. Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (citing Bell v. Wolfish, 24 441 U.S. 520, 535-39 (1979)). To prove an excessive force claim under § 1983, a pretrial 25 detainee must show only that the “force purposely or knowingly used against him was 26 objectively unreasonable.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). “A 27 1 court must make this determination from the perspective of a reasonable officer on the 2 scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” 3 Id. “A court (judge or jury) cannot apply this standard mechanically.” Id. “[O]bjective 4 reasonableness turns on the ‘facts and circumstances of each particular case.’” Id. 5 (quoting Graham v. Connor, 490 U.S. at 396). 6 A non-exhaustive list of considerations that may bear on the reasonableness of 7 the force used include “the relationship between the need for the use of force and the 8 amount of force used; the extent of the plaintiff's injury; any effort made by the officer to 9 temper or to limit the amount of force; the severity of the security problem at issue; the 10 threat reasonably perceived by the officer; and whether the plaintiff was actively 11 resisting.” Kingsley, 135 S. Ct. at 2473. 12 Because the Kingsley standard applicable to excessive force claims by pretrial 13 detainees is purely objective, it does not matter whether the defendant understood that 14 the force used was excessive or intended it to be excessive. Castro v. Cnty. of Los 15 Angeles, 833 F.3d 1060, 1069 (9th Cir. 2016) (en banc). A pretrial detainee can prevail 16 by providing “‘objective evidence that the challenged governmental action is not rationally 17 related to a legitimate governmental objective or that it is excessive in relation to that 18 purpose.’” Id. (quoting Kingsley, 135 S. Ct. at 2473-74)) (emphasis in original). 19 A claim for a violation of a pretrial detainee’s right to adequate medical care arises 20 under the Fourteenth Amendment rather than the Eighth Amendment. See Gordon v. 21 County of Orange, 888 F.3d 1118, 1122 & n.4 (9th Cir. 2018). The claim is evaluated 22 under an objective deliberate indifference standard.
23 [T]he elements of a pretrial detainee’s medical care claim against an individual defendant under the due process clause 24 of the Fourteenth Amendment are: (i) the defendant made an intentional decision with respect to the conditions under which 25 the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant 26 did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would 27 have appreciated the high degree of risk involved—making the injuries. 1 Id. at 1125. With regard to the third element, a defendant’s conduct must be objectively 2 unreasonable – “a test that will necessarily ‘turn[] on the facts and circumstances of each 3 particular case.’” Id. (citation omitted). The four-part test described in Gordon requires 4 plaintiffs to prove more than negligence, but less than subjective intent – something akin 5 to reckless disregard. Id. 6 Plaintiff states that on June 9, 2019, defendant deputies Marlowe and Tamayo 7 knocked plaintiff to the ground and then grabbed his hands, wrists and arms painfully 8 bending them and causing injuries. He also alleges that he was slammed on the ground 9 injuring his head and later shoved into a doorframe. The case continues with these 10 allegations of excessive force against defendants Marlowe and Tamayo. 11 Plaintiff also states that he was seen by defendant physician’s assistant Martin 12 one week after the assault. Plaintiff states that Martin became aggressive and painfully 13 squeezed his hand and wrist that were injured. Docket No. 18 at 10. Plaintiff states 14 Martin ignored his requests to stop but then she stopped the evaluation when he gently 15 pushed her hand away and cried out in pain. Id. 16 The claims against Martin were dismissed with leave to amend to provide more 17 information regarding the allegations of excessive force and failure to provide medical 18 care. Plaintiff was informed that he must provide more information that the pain Martin 19 caused was not related to her exam of his injury in order to provide better medical care. 20 Plaintiff has failed to cure these deficiencies. Plaintiff has failed to plausibly show that 21 while examining his injured hand and wrist, Martin used force that was objectively 22 unreasonable, and it was not related to the examination. Nor has plaintiff shown that 23 Martin denied him adequate medical care. Plaintiff against only presents conclusory 24 allegations that Martin denied proper medical care without providing specific allegations 25 how his rights were violated. A later x-ray showed his hand and wrist were within normal 26 limits without out sign of fracture or dislocation. Docket No. 18 at 45. A small fracture 27 was located and was treated with a splint and anti-inflammatory medication. Id. Plaintiff 1 has failed to show that Martin demonstrated objective deliberate indifference. To the 2 extent plaintiff alleges Martin failed to conduct a thorough exam, he also states that he 3 prevented Martin from examining his hand and wrist because the exam was painful. 4 These claims are dismissed with prejudice because plaintiff has already been provided 5 an opportunity to amend but he has simply repeated the same allegations from the prior 6 complaint.2 Further amendment would be futile. 7 Plaintiff has also filed a motion to appoint counsel. There is no constitutional right 8 to counsel in a civil case, Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981), 9 and although district courts may "request" that counsel represent a litigant who is 10 proceeding in forma pauperis, as plaintiff is here, see 28 U.S.C. § 1915(e)(1), that does 11 not give the courts the power to make "coercive appointments of counsel." Mallard v. 12 United States Dist. Court, 490 U.S. 296, 310 (1989). 13 The Ninth Circuit has held that a district court may ask counsel to represent an 14 indigent litigant only in "exceptional circumstances," the determination of which requires 15 an evaluation of both (1) the likelihood of success on the merits and (2) the ability of the 16 plaintiff to articulate his claims pro se in light of the complexity of the legal issues 17 involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff has presented 18 his claims adequately, and the issues are not complex. Therefore, the motion to appoint 19 counsel is denied. 20 CONCLUSION 21 1. The amended complaint (Docket No. 18) is the operative complaint in this 22 action. The case continues with the excessive force claims against Marlowe and 23 Tamayo. All other claims and defendants are dismissed with prejudice. 24 25
26 2 The allegations of excessive force and improper medical occurred in June 2019. Plaintiff also presents allegations against Martin for denying medical care in December 27 2018. This claim is dismissed without prejudice from this action because it does not 1 2. Plaintiff’s motion to appoint counsel (Docket No. 19) is DENIED. Good cause 2 appearing, it is hereby ordered that defendants’ request for an extension of time (Docket 3 No. 21) is GRANTED and defendants may file a dispositive motion by July 14, 2021. All 4 other aspects of the order of service (Docket No. 9) remain in effect. 5 3. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the 6 court informed of any change of address by filing a separate paper with the clerk headed 7 “Notice of Change of Address,” and must comply with the court's orders in a timely 8 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 9 pursuant to Federal Rule of Civil Procedure 41(b). 10 IT IS SO ORDERED. 11 Dated: May 13, 2021 12 13 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27