McCarty v. Egnor ( 2021 )

1 WO JL 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jyles Jon Dale McCarty, No. CV 21-00473-PHX-MTL (MTM) 10 Plaintiff, 11 v. ORDER 12 Logan Jeffrey Egnor, et al., 13 14 Defendants. 15 16 On March 19, 2021, Plaintiff Jyles Jon Dale McCarty, who is confined in a 17 Maricopa County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 18 and an Application to Proceed In Forma Pauperis. In a March 26, 2021 Order, the Court 19 granted the Application to Proceed and dismissed the Complaint because Plaintiff had 20 failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that 21 cured the deficiencies identified in the Order. 22 On March 30, 2021, Plaintiff filed his First Amended Complaint. In an April 2, 23 2021 Order, the Court dismissed the First Amended Complaint because Plaintiff had failed 24 to state a claim. The Court gave Plaintiff 30 days to file a second amended complaint that 25 cured the deficiencies identified in the Order. 26 On April 12, 2021, Plaintiff filed a Second Amended Complaint (Doc. 12). The 27 Court will dismiss the Second Amended Complaint and this action. 28 . . . . 1 I. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or an officer or an employee of a governmental entity. 28 4 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 5 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 6 relief may be granted, or that seek monetary relief from a defendant who is immune from 7 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 10 not demand detailed factual allegations, “it demands more than an unadorned, the- 11 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 12 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Id. 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 23 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 24 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 25 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 26 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 27 U.S. 89, 94 (2007) (per curiam)). 28 . . . . 1 II. Second Amended Complaint 2 In his three-count Second Amended Complaint, Plaintiff sues Phoenix Police 3 Department Officer Logan Jeffrey Egnor. Plaintiff asserts Defendant Egnor violated his 4 constitutional rights during his arrest. Plaintiff seeks monetary relief, for Defendant Egnor 5 to be fired and criminally prosecuted, for “this incident to be reported to CNN on national 6 television,” and for “all parties involved to be investigated.” 7 Plaintiff alleges that on October 20, 2020, Defendant Egnor stopped and arrested 8 Plaintiff without probable cause. Plaintiff claims Defendant Egnor shot him five times 9 with beanbag rounds, without probable cause. Plaintiff asserts he was not resisting arrest, 10 running from officers, or threatening anyone, and he had done nothing “to be arrested.” 11 Plaintiff suffered five cuts and bleeding from wounds caused by the beanbag rounds. 12 Plaintiff was arrested, transported to a Maricopa County Jail, and charged with 13 multiple crimes. Plaintiff asserts Defendant Egnor falsified legal documents, thereby 14 “affecting” Plaintiff’s Fourth Amendment right to be free from illegal search and seizure. 15 III. Failure to State a Claim 16 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 17 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 18 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 19 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 20 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 21 as a result of the conduct of a particular defendant and he must allege an affirmative link 22 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 23 72, 377 (1976). 24 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 25 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 26 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 27 civil rights complaint may not supply essential elements of the claim that were not initially 28 pled. Id. 1 A. False Arrest 2 To state a § 1983 claim for false arrest, Plaintiff must show that he was arrested 3 without probable cause or other justification. Gravelet-Blondin v. Shelton, 728 F.3d 1086, 4 1097 (9th Cir. 2013). “‘Probable cause exists if the arresting officers ‘had knowledge and 5 reasonably trustworthy information of facts and circumstances sufficient to lead a prudent 6 person to believe that [the arrestee] had committed or was committing a crime.’” Id. at 7 1097-98 (quoting Maxwell v. County of San Diego, 697 F.3d 941, 951 (9th Cir. 2012)). “If 8 an officer has probable cause to believe that an individual has committed even a very minor 9 criminal offense in his presence, he may, without violating the Fourth Amendment, arrest 10 the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). 11 Plaintiff does not allege any facts to support his conclusory assertion that Defendant 12 Egnor lacked probable cause to arrest him. Plaintiff does not specify the charges for which 13 he was arrested or describe the circumstances of his arrest. Plaintiff therefore has not stated 14 a claim for false arrest. 15 B. Excessive Force 16 The use of excessive force by police officers in the course of an arrest can violate 17 the arrestee’s Fourth Amendment right to be free from unreasonable seizures. See White 18 by White v. Pierce County, 797 F.2d 812, 816 (9th Cir. 1986). The Fourth Amendment 19 does not prohibit the use of reasonable force. Tatum v. City & County of S.F., 441 F.3d 20 1090, 1095 (9th Cir. 2006). Whether the force was excessive depends on “whether the 21 officers’ actions [were] ‘objectively reasonable’ in light of the facts and circumstances 22 confronting them, without regard to their underlying intent or motivation.” Graham v. 23 Connor, 490 U.S. 386, 397 (1989); Tatum, 441 F.3d at 1095; Lolli v. County of Orange, 24 351 F.3d 410, 415 (9th Cir. 2003). The Court must balance the nature and quality of the 25 intrusion against the countervailing governmental interests at stake. Graham, 490 U.S. at 26 396; Lolli, 351 F.3d at 415. Moreover, 27 [t]he “reasonableness” of a particular use of force must be judged from the 28 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . . “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” violates the Fourth 1 Amendment. 2 3 Graham, 490 U.S. at 396 (citations omitted). “Whether a particular use of force was 4 ‘objectively reasonable’ depends on several factors, including the severity of the crime that 5 prompted the use of force, the threat posed by a suspect to the police or to others, and 6 whether the suspect was resisting arrest.” Tatum, 441 F.3d at 1095. 7 Plaintiff has not alleged sufficient facts concerning his arrest, including the 8 circumstances surrounding his arrest, the crime or crimes for which he was arrested, and 9 the events that resulted in Defendant Egnor shooting Plaintiff with beanbag rounds. Absent 10 additional information, Plaintiff fails to state an excessive force claim against Defendant 11 Egnor. 12 IV. Dismissal without Leave to Amend 13 Because Plaintiff has failed to state a claim in his Second Amended Complaint, the 14 Court will dismiss his Second Amended Complaint. “Leave to amend need not be given 15 if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, 16 Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is 17 particularly broad where Plaintiff has previously been permitted to amend his complaint. 18 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). 19 Repeated failure to cure deficiencies is one of the factors to be considered in deciding 20 whether justice requires granting leave to amend. Moore, 885 F.2d at 538. 21 Plaintiff has made three efforts at crafting a viable complaint and appears unable to 22 do so despite specific instructions from the Court. The Court finds that further 23 opportunities to amend would be futile. Therefore, the Court, in its discretion, will dismiss 24 Plaintiff’s Second Amended Complaint without leave to amend. 25 IT IS ORDERED: 26 (1) Plaintiff’s Second Amended Complaint (Doc. 12) and this action are 27 dismissed for failure to state a claim, and the Clerk of Court must enter judgment 28 accordingly. 1 (2) The Clerk of Court must make an entry on the docket stating that the dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g). 3 (3) The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal 5 | of this decision would be taken in good faith and finds Plaintiff may appeal in forma pauperis. 7 Dated this 15th day of April, 2021. 8 Wichadl T. gibund Michael T. Liburdi 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28