Luckert v. Gutierrez ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL L LUCKERT, Case No. 19-cv-08204-PJH 8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND 10 O. SMITH, et al., Defendants. 11 12 13 Plaintiff, a former detainee, proceeds with a pro se civil rights complaint under 42 14 U.S.C. § 1983. 15 DISCUSSION 16 STANDARD OF REVIEW 17 Federal courts must engage in a preliminary screening of cases in which prisoners 18 seek redress from a governmental entity or officer or employee of a governmental entity. 19 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 20 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief 21 may be granted, or seek monetary relief from a defendant who is immune from such 22 relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. 23 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement 25 of the claim showing that the pleader is entitled to relief." "Specific facts are not 26 necessary; the statement need only '"give the defendant fair notice of what the . . . . claim 27 is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) 1 factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] 2 to relief' requires more than labels and conclusions, and a formulaic recitation of the 3 elements of a cause of action will not do. . . . Factual allegations must be enough to 4 raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 5 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state 6 a claim to relief that is plausible on its face." Id. at 570. The United States Supreme 7 Court has recently explained the “plausible on its face” standard of Twombly: “While legal 8 conclusions can provide the framework of a complaint, they must be supported by factual 9 allegations. When there are well-pleaded factual allegations, a court should assume their 10 veracity and then determine whether they plausibly give rise to an entitlement to relief.” 11 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 13 elements: (1) that a right secured by the Constitution or laws of the United States was 14 violated, and (2) that the alleged deprivation was committed by a person acting under the 15 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 16 LEGAL CLAIMS 17 Plaintiff alleges that several police officers and a library security guard used 18 excessive force during an arrest and that he was denied medical care while in jail. 19 An allegation of the use of excessive force by a law enforcement officer in 20 effectuating an arrest states a valid claim under 42 U.S.C. § 1983. See Rutherford v. City 21 of Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986), overruled on other grounds by Graham 22 v. Connor, 490 U.S. 386 (1989); see also Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 23 641-42 (9th Cir. 2018) (pro se allegations that police officers “beat the crap out of” plaintiff 24 and caused him severe injury enough to support a legally cognizable claim under § 25 1983). Excessive force claims which arise in the context of an arrest or investigatory stop 26 of a free citizen are analyzed under the Fourth Amendment reasonableness standard. 27 See Graham v. Connor, 490 U.S. 386, 394-95 (1989); Forrester v. City of San Diego, 25 1 A claim for a violation of a pretrial detainee’s right to adequate medical care arises 2 under the Fourteenth Amendment rather than the Eighth Amendment. See Gordon v. 3 County of Orange, 888 F.3d 1118, 1122 & n.4 (9th Cir. 2018). The claim is evaluated 4 under an objective deliberate indifference standard. 5 [T]he elements of a pretrial detainee's medical care claim against an individual defendant under the due process clause 6 of the Fourteenth Amendment are: (i) the defendant made an intentional decision with respect to the conditions under which 7 the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant 8 did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would 9 have appreciated the high degree of risk involved—making the consequences of the defendant's conduct obvious; and (iv) by 10 not taking such measures, the defendant caused the plaintiff's injuries. 11 Id. at 1125. With regard to the third element, the defendant’s conduct must be 12 objectively unreasonable -- “a test that will necessarily turn[] on the facts and 13 circumstances of each particular care.” Id. (citations and internal quotation marks 14 omitted). The four-part test articulated in Gordon requires the plaintiff to prove more than 15 negligence, but less than subjective intent --something akin to reckless disregard. Id. 16 In order to recover damages for an allegedly unconstitutional conviction or 17 imprisonment, or for other harm caused by actions whose unlawfulness would render a 18 conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction 19 or sentence has been reversed on direct appeal, expunged by executive order, declared 20 invalid by a state tribunal authorized to make such determination, or called into question 21 by a federal court’s issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 22 477, 486-487 (1994). A claim for damages bearing that relationship to a conviction or 23 sentence that has not been so invalidated is not cognizable under § 1983. Id. at 487. 24 In Wallace v. Kato, 549 U.S. 384, 393 (2007), the Court held that the “Heck rule for 25 deferred accrual is called into play only when there exists ‘a conviction or sentence that 26 has not been . . . invalidated,’ that is to say, an ‘outstanding criminal judgment.’” Id. at 27 391-93 (quoting Heck, 512 U.S. at 486-87). The Heck rule delays accrual only if there is 1 an existing conviction on the date the statute of limitations begins to run, which in the 2 case of wrongful arrest or wrongful imprisonment claims is when the plaintiff's 3 confinement is no longer without legal process, but rather becomes a confinement 4 pursuant to legal process – that is, for example, when he or she is bound over by a 5 magistrate or arraigned on charges. Id. at 389-90. The Court stated that the contention 6 that “an action which would impugn an anticipated future conviction cannot be brought 7 until that conviction occurs and is set aside” goes “well beyond Heck” and rejected it. Id. 8 at 393 (italics in original). Although the Court was only considering when the statute of 9 limitations began running on a false arrest/false imprisonment claim, the discussion 10 quoted suggests that Heck does not apply if there is no extant conviction – for instance, if 11 plaintiff has only been arrested or charged. 12 If a plaintiff files a § 1983 false arrest claim before he or she is convicted, or files 13 any other claim related to rulings that likely will be made in a pending or anticipated 14 criminal trial, it is within the power of the district court, and accords with common practice, 15 to stay the civil action until the criminal case or the likelihood of a criminal case is ended. 16 Id. at 393-94. If the plaintiff is then convicted, and if the stayed civil suit would impugn 17 that conviction, Heck requires dismissal; otherwise, the case may proceed. Id. at 394. 18 Plaintiff alleges that several police officers and a library security guard used 19 excessive force in arresting him and while transporting him and placing him in jail. He 20 also alleges that he was placed in a cell for two to three days and did not receive any 21 medical care. 22 Plaintiff was charged with resisting, delaying, or obstructing a police officer and a 23 public agency official among other charges. Docket No. 7 at 12. It is unclear if he has 24 been convicted, if the charges are still pending or if the charges have been dropped. 25 Plaintiff’s allegations regarding the excessive force may be barred by Heck because the 26 allegations of excessive force directly relate to several of the underlying charges. The 27 complaint is dismissed to provide more information regarding the status of the criminal 1 charges are still pending this case may be stayed. 2 With respect to the allegations that he was denied medical care, plaintiff must also 3 provide more information. He does not elaborate on this claim and fails to identify any 4 specific defendant and how they violated his constitutional rights. Plaintiff should provide 5 more information regarding these allegations and describe what defendants he sought 6 medical care from and how they denied care. He should also describe his injuries and 7 what medical care was needed. 8 CONCLUSION 9 1. The complaint is DISMISSED with leave to amend in accordance with the 10 standards set forth above. The amended complaint must be filed no later than March 27, 11 2020, and must include the caption and civil case number used in this order and the 12 words AMENDED COMPLAINT on the first page. Because an amended complaint completely replaces the original complaint, plaintiff must include in it all the claims he 13 wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may 14 not incorporate material from the original complaint by reference. Failure to file amended 15 complaint may result in dismissal of this action. 16 2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the 17 court informed of any change of address by filing a separate paper with the clerk headed 18 “Notice of Change of Address,” and must comply with the court's orders in a timely 19 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 20 pursuant to Federal Rule of Civil Procedure 41(b). 21 IT IS SO ORDERED. 22 Dated: March 2, 2020 23 24 /s/ Phyllis J. Hamilton 25 PHYLLIS J. HAMILTON 26 United States District Judge 27