Purnell v. Mora ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 GEORGETTE G. PURNELL, Case No. 1:19-cv-00210-DAD-BAM 8 Plaintiff, SCREENING ORDER GRANTING PLAINTIFF LEAVE TO FILE AN 9 v. AMENDED COMPLAINT 10 R.T. MORA, et al., (Doc. No. 1) 11 Defendants. THIRTY (30) DAY DEADLINE 12 13 Plaintiff Georgette G. Purnell (“Plaintiff”), proceeding pro se and in forma pauperis, filed 14 this action against Fresno County Police Officers R.T. Mora, Hodge, N. Cruz, and B. Phelps 15 (“Defendants”), alleging violation of her civil rights under 42 U.S.C. § 1983. (Doc. Nos. 1, 5-6.) 16 Plaintiff’s complaint is currently before the Court for screening. 17 I. Screening Requirement and Standard 18 The Court screens complaints brought by litigants proceeding pro se and in forma 19 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to 20 dismissal if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or 21 seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(b). 22 A complaint must contain “a short and plain statement of the claim showing that the 23 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 24 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 25 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 26 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 27 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 28 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 1 To survive screening, Plaintiff’s claims must be facially plausible, which requires 2 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 3 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 4 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 5 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 6 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 7 II. Plaintiff’s Allegations 8 Plaintiff’s complaint alleges that she was stopped by Officer R.T. Mora while driving her 9 car in Fresno, California on August 30, 2018. During the stop, Officer Mora questioned Plaintiff 10 regarding her license plate. In response, Plaintiff attempted to produce documents from her 11 vehicle purportedly showing that another officer had recently informed her that she had six 12 months to take care of her registration and/or license plate. Officer Mora “viciously” knocked her 13 documents from her hands and used a racial slur, indicating that he did not want to see Plaintiff’s 14 documents. Plaintiff alleges that Officer Mora then grabbed her arm and “viciously twisted it to 15 the point of . . . excruciating pain[]” and Plaintiff cried out. Officers Cruz, Phelps, and Hodge, as 16 well as non-defendant Officer Ruiz, were allegedly present during these events and did nothing to 17 stop Officer Mora. Paramedics were called and Plaintiff was treated on the scene for a sprained 18 arm. Plaintiff alleges that she continues to feel pain in her arm and has also experienced sleepless 19 nights and loss of appetite since the incident. The exhibits to the complaint indicate that, at the 20 time of the underlying incident, Officer Cruz issued notices to appear to Plaintiff for driving with 21 an expired registration in violation of California Vehicle Code § 4000(a)(1) and resisting arrest in 22 violation of California Penal Code § 148. 23 Plaintiff’s complaint sets forth claims under 42 U.S.C. § 1983 for violation of her “right to 24 be free from excessive force by law enforcement,” her “right to be free from racial insults,” and 25 “4th Amendment United States Constitution Prohibition.” Plaintiff seeks compensatory damages 26 in the amount of one million dollars from each Defendant, punitive damages in the amount of one 27 million dollars from each Defendant, as well as the imposition of “necessary measures such as 28 training to ensure these illegal acts does not ever occur again.” 1 III. Discussion 2 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to 3 state a cognizable claim. As Plaintiff is proceeding pro se, she will be granted leave to amend her 4 complaint to cure the identified deficiencies to the extent she can do so in good faith. To assist 5 Plaintiff, the Court provides the pleading and legal standards that appear relevant to her 6 allegations. 7 A. Federal Rule of Civil Procedure 8 8 Pursuant to Rule 8(a) of the Federal Rules of Civil Procedure, the complaint or 9 amended complaint must contain a “short and plain statement of the claim showing that the 10 pleader is entitled to relief.” Although the Federal Rules adopt a flexible pleading policy, 11 a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones 12 v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir.1984). While detailed allegations are 13 not required, a plaintiff must set forth “the grounds of his entitlement to relief[,]” which “requires 14 more than labels and conclusions, and a formulaic recitation of the elements of a cause of 15 action....” Twombly, 550 U.S. at 555. 16 Plaintiff's complaint is short but it is unclear which claim is asserted against which 17 Defendant. The complaint does not set forth the factual basis for each of the asserted claims with 18 respect to each Defendant. Moreover, the nature of the claims Plaintiff intends to pursue are 19 unclear. For example, in example, addition to her claim for violation of “the right to be free from 20 excessive force by law enforcement[,]” Plaintiff also alleges a violation of her rights under “4th 21 Amendment United States Constitution Prohibition.” (Doc. No. 1 at 3.) It is not clear if these 22 claims are duplicative of each other or if Plaintiff claims other unidentified Fourth Amendment 23 rights were violated beyond her right to be free from excessive force. As a result, the Court 24 cannot assess which claims Plaintiff intends to pursue, which Defendant is alleged to be involved, 25 or whether Plaintiff has stated a cognizable claim for relief. 26 Plaintiff must submit a complaint to the Court that meets the requirements of Rule 8. If 27 Plaintiff amends her complaint, she should link each Defendant to a deprivation of a 28 constitutional right. Plaintiff's amended complaint need not and should not be lengthy, Fed. R. 1 Civ. P. 8(a)(2), but it must specify what each Defendant did or did not do that led to the violation 2 of Plaintiff's rights. Conclusory assertions of personal involvement or liability will not 3 suffice. Iqbal, 556 U.S. at 677-679. Any amended complaint should include a short and plain 4 statement of her claims and factual allegations identifying what happened, when it happened and 5 who was involved. Plaintiff shall separate her claims so that it is clear what her claims are and 6 which Defendants allegedly violated her rights. For each claim, Plaintiff shall clearly and 7 succinctly set forth the facts that Plaintiff believes give rise to the claim. 8 B. Section 1983 9 Plaintiff’s complaint generally asserts claims for deprivation of her federal constitutional 10 or statutory rights under 42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff must 11 allege two essential elements: (1) that a right secured by the Constitution or laws of the United 12 States was violated and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 14 F.2d 1243, 1245 (9th Cir.1987). 15 Government officials enjoy qualified immunity from civil damages unless their conduct 16 violates “clearly established statutory or constitutional rights of which a reasonable person would 17 have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two 18 important interests—the need to hold public officials accountable when they exercise power 19 irresponsibly and the need to shield officials from harassment, distraction, and liability when they 20 perform their duties reasonably,” Pearson v. Callahan, 555 U.S. 223, 231 (2009), and protects 21 “all but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 22 U.S. 335, 341 (1986). 23 1. Officer Mora—Excessive Force 24 Plaintiff appears to allege that Officer Mora violated her “right to be free from excessive 25 force by law enforcement officers.” The use of excessive force by law enforcement officers in 26 effectuating an arrest states a valid claim under section 1983. See Rutherford v. City of Berkeley, 27 780 F.2d 1444, 1447 (9th Cir. 1986). A claim that a law enforcement officer used excessive force 28 1 in the course of an arrest or investigatory stop of a free citizen is analyzed under the Fourth 2 Amendment reasonableness standard. Graham v. Connor, 490 U.S. 386, 394–95 (1989). 3 “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth 4 Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the 5 individual's Fourth Amendment interests' against the countervailing governmental interests at 6 stake.” Graham, 490 U.S. at 396 (citations omitted). Whether a law enforcement officer's use of 7 force was “objectively reasonable” depends upon the totality of the facts and circumstances 8 confronting him. Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir.) (en banc) 9 (quoting Graham, 490 U.S. at 397), cert. denied, 545 U.S. 1128 (2005). 10 “The question is whether the officers' actions are ‘objectively reasonable’ in light of the 11 facts and circumstances confronting them, without regard to their underlying intent or 12 motivation.” Graham, 490 U.S. at 397 (citation omitted). Reasonableness must be assessed from 13 the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight, 14 and must allow for the fact that “police officers are often forced to make split-second judgments- 15 in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is 16 necessary in a particular situation.” Graham, 490 U.S. 397. The relevant factors in the Fourth 17 Amendment reasonableness inquiry include “the severity of the crime at issue, whether the 18 suspect poses an immediate threat to the safety of the officers or others, and whether he is 19 actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. While 20 these are the most common considerations, they are not “a magical on/off switch that triggers 21 rigid preconditions” to determine whether an officer's conduct constituted excessive force. Scott 22 v. Harris, 550 U.S. 372 (2007). Consequently, courts consider other factors, such as the 23 availability of alternative methods of capturing or detaining the suspect in determining 24 reasonableness. Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir.1994), cert. denied, 513 U.S. 1148 25 (1995). 26 Plaintiff alleges that she attempted to show Officer Mora documentation in response to 27 questioning regarding her registration and he “viciously” knocked her documents from her hands, 28 1 grabbed her arm, and “viciously twisted it to the point of . . . excruciating pain[]” at which time 2 Plaintiff cried out. An ambulance was called, and Plaintiff was treated on the scene for a sprained 3 arm. The complaint also states that Plaintiff was cited for resisting arrest. 4 The Court finds that these allegations as pled fail to state a cognizable claim for the use of 5 excessive force in violation of the Fourth Amendment because Plaintiff does not sufficiently 6 plead facts to show that Officer Mora’s actions were objectively unreasonable under the 7 circumstances. While Plaintiff alleges that she had “done nothing to warrant such actions[,]” 8 Plaintiff’s complaint also indicates that she was cited for resisting arrest. See Steckman v. Hart 9 Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (“[W]e are not required to accept as true 10 conclusory allegations which are contradicted by documents referred to in the complaint.”) It is 11 therefore not clear whether Plaintiff posed an immediate threat to the safety of the officers or 12 others or was actively resisting arrest or attempting to evade arrest by flight at the time the 13 underlying arm twisting incident occurred. From the allegations as pled, the Court cannot 14 determine whether Plaintiff has alleged sufficient facts to support the plausible conclusion that the 15 degree of force used by Officer Mora was unreasonable given the circumstances. 16 2. Officers Cruz, Phelps, and Hodge—Excessive Force 17 It is not clear from the complaint whether Plaintiff intends to assert a claim against 18 Officers Cruz, Phelps, and Hodge for direct participation in the alleged excessive force. Section 19 1983 provides: 20 Every person who, under color of [state law] ... subjects, or causes to 21 be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution ... 22 shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 23 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between 24 the actions of the defendants and the deprivation alleged to have been suffered by 25 Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 26 U.S. 362 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation 27 of a constitutional right, within the meaning of section 1983, if he does an affirmative act, 28 1 participates in another's affirmative acts, or omits to perform an act which he is legally required to 2 do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 3 (9th Cir.1978). To state a claim, Plaintiff must demonstrate that each Defendant personally 4 participated in the deprivation of his rights. Iqbal, 556 U.S. at 677-678; Simmons v. Navajo 5 County, Ariz., 609 F.3d 1011, 1020–21 (9th Cir.2010). There must be an actual connection or 6 link between the actions of the Defendants and the deprivation alleged to have been suffered by 7 Plaintiff. Rizzo v. Goode, 423 U.S. at 371. Under section 1983, Plaintiff is required to show that 8 (1) each Defendant acted under color of state law and (2) each Defendant deprived him of rights 9 secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 10 (9th Cir.2006). Plaintiff must demonstrate that each Defendant personally participated in the 11 deprivation of his rights. Jones, 297 F.3d at 934. There is no respondeat superior liability 12 under section 1983, and therefore, each Defendant is only liable for his or her own 13 misconduct. Iqbal, 556 U.S. at 675-677. 14 Plaintiff does not link Officers Cruz, Phelps, and Hodge to any direct participation in any 15 alleged excessive force. The complaint does not allege that Officers Cruz, Phelps, or Hodge 16 grabbed or twisted her arm or otherwise used any force against her. Accordingly, Plaintiff fails to 17 state a claim against Officers Cruz, Phelps, and Hodge for any direct involvement in the alleged 18 use of excessive force against her in violation of her Fourth Amendment rights. See Johnson, 588 19 F.2d at 743 (requiring causal connection between acts or omissions of defendant and 20 constitutional deprivation). 21 3. Officers Cruz, Phelps, and Hodge—Failure to Intercede 22 The complaint alleges that Officer Mora “viciously twisted” Plaintiff’s arm while “[t]he 23 remaining defendants just looked on, and . . . did nothing to stop him.” Plaintiff is proceeding pro 24 se and her complaint is to be liberally construed. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 25 2014). Accordingly, the Court will consider whether Plaintiff has adequately alleged a claim 26 arising under the Fourth Amendment against Officers Cruz, Phelps, and Hodge for their failure to 27 intercede. 28 1 “[P]olice officers have a duty to intercede when their fellow officers violate the 2 constitutional rights of a suspect or other citizen.” Cunningham v. Gates, 229 F.3d 1271, 1289 3 (9th Cir. 2000), as amended (Oct. 31, 2000) (citing United States v. Koon, 34 F.3d 1416, 1447 n. 4 25 (9th Cir.1994), rev'd on other grounds, 518 U.S. 81 (1996)). Therefore, an officer may be 5 held liable for failing to intercede when his fellow officer uses excessive force. See Cunningham, 6 229 F.3d at 1289; Garlick v. County of Kern, 167 F.Supp.3d 1117, 1161 (E.D. Cal. 2016). 7 However, an officer can only be held liable for failing to intercede of the officer had a “realistic 8 opportunity” to intercede. Cunningham, 228 F.3d at 1290; Garlick, 167 F.Supp.3d at 1161. 9 Officers who are not present at the time of a constitutional violation have no realistic opportunity 10 to intercede. Cunningham, 228 F.3d at 1290. “In addition, if a constitutional violation occurs too 11 quickly, there may no realistic opportunity to intercede to prevent the violation.” Freeland v. 12 Sacramento City Police Dep’t, 2010 WL 409838, at *5 (E.D. Cal. Jan. 29, 2010) (citing Knapps 13 v. City of Oakland, 647 F.Supp.2d 1129, 1159-60 (N.D.Cal.2009)). 14 As discussed above, Plaintiff has not adequately pled that Officer Mora’s conduct 15 amounted to excessive force. Without an underlying constitutional violation, Officers Cruz, 16 Phelps, and Hodge cannot be held liable for their failure to intercede. 17 Moreover, the complaint lacks facts that Officers Cruz, Phelps, and Hodge were on notice 18 that Plaintiff’s constitutional rights had been or were being violated and had a realistic 19 opportunity to intercede to prevent the alleged violation. It merely alleges that Officers Cruz, 20 Phelps, and Hodge “just stood there” when Officer Mora grabbed her arm. It is not clear from the 21 complaint whether the incident is alleged to have occurred in these officers’ immediate presence 22 or in close enough proximity to allow them a realistic opportunity to intercede. See Anderson v. 23 Hartley, 2011 WL 5876913, at *2 (E.D. Cal. Nov. 22, 2011) (finding that a plaintiff adequately 24 alleged a realistic opportunity to intercede where the complaint alleged the defendant was near 25 enough to the incident itself to intercede.”). Similarly, given the apparently short time period in 26 which the incident is alleged to have taken place, i.e. while Plaintiff was producing documents 27 from her vehicle, it is not clear whether Plaintiff alleges that Officers Cruz, Phelps, and Hodge 28 had enough time to prevent the alleged violation. See Knapps, 647 F.Spp.2d at 1159-1160 1 (reasoning that a defendant did not have a realistic opportunity to intercede where the violation 2 happened in a “short time period” and the defendants did not anticipate the use of force); Mendez 3 v. Montour, 2014 WL 1218665, at *1-4 (N.D. Cal. Mar. 21, 2014) (finding no realistic 4 opportunity to intercede where excessive force claim was based on officer’s act of suddenly and 5 unexpectedly knocking plaintiff to the ground then slamming plaintiff’s head against a vehicle). 6 Plaintiff therefore has not made the necessary showing that Officers Cruz, Phelps, and Hodge had 7 a realistic opportunity to intercede. 8 4. Racial Insults 9 The complaint also alleges a claim under section 1983 for violation of Plaintiff’s “right to 10 be free from racial insults.” (Doc. No. 1 at 3.) The Fourteenth Amendment provides that a state 11 may not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. 12 amend. XIV, § 1. An equal protection violation occurs when persons similarly situated are 13 unfairly treated differently. Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). “To state a 14 claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth 15 Amendment a plaintiff must show that the defendants acted with an intent or purpose 16 to discriminate against the plaintiff based upon membership in a protected class.” Barren v. 17 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 18 Additionally, 42 U.S.C. § 1981 provides, in part, that: 19 All persons within the jurisdiction of the United States shall have the same right in every State and Territory ... to the full and equal benefit 20 of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like 21 punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 22 23 42 U.S.C. § 1981(a). As with § 1983 claims regarding Equal Protection, in order to prevail on a 24 claim under Section 1981, a plaintiff “must show intentional discrimination on account of 25 race.” Evans v. McKay, 869 F.2d 1341, 1344 (9th Cir. 1989). 26 However, allegations of verbal harassment and abuse alone are generally not actionable. 27 Walker v. Chisman, 2019 WL 5536212, at *1 (N.D. Cal. Oct. 25, 2019). This is so even if the 28 verbal harassment is racially motivated. Hubbard v. Johnson, 2019 WL 5579507, at *4 (N.D. 1 Cal. Oct. 29, 2019); Walker, 2019 WL 5536212, at *1; see also, e.g., Austin v. Terhune, 367 F.3d 2 1167, 1171 (9th Cir. 2004) (noting that “the Eighth Amendment's protections do not necessarily 3 extend to mere verbal sexual harassment”); Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) 4 (“As for being subjected to abusive language directed at [one's] religious and ethnic background, 5 verbal harassment or abuse...is not sufficient to state a constitutional deprivation under 42 6 U.S.C. § 1983.”) (internal quotations omitted) abrogated on other grounds by Shakur, 514 F.3d 7 878. 8 Plaintiff alleges that Officer Mora called her a racial slur after she attempted to produce 9 documents from her vehicle. Plaintiff again fails to link Officers Cruz, Phelps, and Hodge to any 10 direct participation in the conduct which allegedly violated her rights. While Plaintiff alleges that 11 Officer Mora is Caucasian and she is African American with “Haitian Roots,” the complaint only 12 sets forth allegations of verbal harassment. Plaintiff does not allege any facts from which the 13 Court could reasonably discern that Officer Mora or any other Defendant engaged in intentional 14 discrimination based on race. Plaintiff has therefore failed to adequately allege a constitutional 15 violation. Plaintiff is reminded that if she elects to amend her complaint she must provide 16 sufficient factual detail to allow the Court to reasonably infer that each named Defendant is liable 17 for the misconduct alleged. Conclusory assertions of liability will not suffice. Iqbal, 556 U.S. at 18 678. 19 IV. Conclusion and Order 20 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to 21 state a cognizable claim for relief. As Plaintiff is proceeding pro se, the Court will grant Plaintiff 22 an opportunity to amend her complaint to cure these deficiencies to the extent she is able to do so 23 in good faith. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 24 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 25 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights. Iqbal, 26 556 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to 27 raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations 28 1 omitted). 2 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 3 claims in her first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 4 “buckshot” complaints). 5 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 6 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 7 complaint must be “complete in itself without reference to the prior or superseded pleading.” 8 Local Rule 220. 9 Based on the foregoing, it is HEREBY ORDERED that: 10 1. The Clerk’s Office shall send Plaintiff a complaint form; 11 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 12 first amended complaint curing the deficiencies identified by the Court in this order or file a 13 notice of voluntary dismissal; and 14 3. If Plaintiff fails to file an amended complaint in compliance with this order, the 15 Court will recommend dismissal of this action, with prejudice, for failure to obey a court order 16 and for failure to state a claim. 17 IT IS SO ORDERED. 18 19 Dated: January 10, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28