Wise v. Nampa Police Department ( 2020 )

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO JEREMY WISE, Case No. 1:20-cv-00023-BLW Plaintiff, INITIAL REVIEW ORDER BY v. SCREENING JUDGE NAMPA POLICE DEPARTMENT, Defendant. The Clerk of Court conditionally filed Plaintiff Jeremy Wise’s Complaint as a result of Plaintiff’s in forma pauperis request and his status as an inmate at the time he filed the Complaint. The Court now reviews the Complaint to determine whether it should be summarily dismissed in whole or in part under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order directing Plaintiff to file an amended complaint if he intends to proceed. 1. Screening Requirement The Court must review complaints filed by inmates seeking relief against a governmental entity, as well as complaints filed in forma pauperis, to determine whether summary dismissal is appropriate. The Court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). 2. Pleading Standard A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint fails to state a claim for relief under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient for the reviewing court plausibly “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. In other words, although Rule 8 “does not require detailed factual allegations, ... it demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation.” Id. (internal quotation marks omitted). If the facts pleaded are “merely consistent with a defendant’s liability,” or if there is an “obvious alternative explanation” that would not result in liability, the complaint has not stated a claim for relief that is plausible on its face. Id. at 678, 682 (internal quotation marks omitted). 3. Factual Allegations When Plaintiff filed the instant action, he was an inmate in the Canyon County Jail. Plaintiff alleges that an unidentified officer of the Nampa Police Department used excessive force against him, evidently during the course of an arrest: [the officer] [r]efused to take me to jail, pulled me out the back of A police car and punched me four times in the ribs. Proceeded to putting [sic] his knee on the back of my head which gave me road rash on my face. Proceeded to filling [sic] an added robbery charged [sic] which was dismissed at Arraignment. Compl., Dkt. 3, at 2.1 Plaintiff sues the Nampa Police Department, asserting a claim of excessive force under 42 U.S.C. § 1983. Id. at 1. Plaintiff has not alleged sufficient facts to proceed with the Complaint. The Court will, however, grant Plaintiff 28 days to amend the Complaint. Any amended complaint should take into consideration the following. 4. Standards of Law Governing Plaintiff’s Section 1983 Claim Plaintiff brings his claim under 42 U.S.C. § 1983, the civil rights statute. To state a plausible civil rights claim, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To be liable under § 1983, “the defendant must possess a purposeful, a knowing, or possibly a reckless state of mind.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015). Negligence is not actionable under § 1983, because a negligent act by a public official is not an abuse of governmental power but merely a “failure to measure up to the conduct of a reasonable person.” Daniels v. Williams, 474 U.S. 327, 332 (1986). Government officials generally are not liable for damages under § 1983 unless they personally participated in the alleged constitutional violations. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Iqbal, 556 U.S. at 677 (“[E]ach Government 1 Plaintiff’s handwriting is difficult to read because it is very light. Quotations from the Complaint represent the Court’s best efforts. Plaintiff is advised to use a black pen when drafting any amended complaint. official, his or her title notwithstanding, is only liable for his or her own misconduct.”). Section 1983 does not allow for recovery against an employer or principal simply because an employee or agent committed misconduct. Taylor, 880 F.2d at 1045. However, “[a] defendant may be held liable as a supervisor under § 1983 ‘if there exists ... a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). A plaintiff can establish this causal connection by alleging that a defendant (1) “set[] in motion a series of acts by others”; (2) “knowingly refus[ed] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury”; (3) failed to act or improperly acted in the training, supervision, or control of his subordinates”; (4) “acquiesc[ed] in the constitutional deprivation”; or (5) engag[ed] in “conduct that showed a reckless or callous indifference to the rights of others.” Id. at 1205-09. A claim that a supervisor or training official failed to adequately train subordinates ordinarily requires that, “in light of the duties assigned to specific officers or employees[,] the need for more or different training [was] so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the [supervisor or training official] can reasonably be said to have been deliberately indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989). That is, to maintain a failure-to-train claim, a plaintiff must allege facts showing a “pattern of violations” amounting to deliberate indifference. Connick v. Thompson, 563 U.S. 51, 72 (2011). Likewise, “a failure to supervise that is sufficiently inadequate may amount to deliberate indifference” that supports a § 1983 claim, but there generally must be a pattern of violations sufficient to render the need for further supervision obvious. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (internal quotation marks omitted). That is, if a supervisory or training official had “knowledge of the unconstitutional” conduct through such a pattern of violations—including knowledge of the “culpable actions of his subordinates”—yet failed to act to remedy that conduct, that official can be said to have acquiesced “in the unconstitutional conduct of his subordinates,” such that a causal connection between the supervisor and the constitutional violation is plausible. Starr, 652 F.3d at 1208. To bring a § 1983 claim against a municipal entity, such as the Nampa Police Department, a plaintiff must allege that the execution of an official policy or unofficial custom inflicted the injury of which the plaintiff complains. Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978). Under Monell, the requisite elements of a § 1983 claim against a municipal entity are the following: (1) the plaintiff was deprived of a constitutional right; (2) the municipal entity had a policy or custom; (3) the policy or custom amounted to deliberate indifference to plaintiff’s constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1110–11 (9th Cir. 2001). Further, a municipality “may be held liable under § 1983 when the individual who committed the constitutional tort was an official with final policy-making authority or such an official ratified a subordinate’s unconstitutional decision or action and the basis for it.” Clouthier v. County of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010), overruled in part on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1069 (9th Cir. 2016) (en banc). An unwritten policy or custom must be so “persistent and widespread” that it constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970)). “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Claims of excessive force during the course of an arrest are analyzed under the Fourth Amendment, which prohibits unreasonable searches and seizures. The Fourth Amendment requires that officers use only an amount of force that is “objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989) (internal quotation marks omitted).2 This reasonableness inquiry requires “balancing the nature and quality of the intrusion on a person’s liberty with the countervailing governmental interests at stake,” Davis v. City of Las Vegas, 478 F.3d 1048, 1053–54 (9th Cir. 2007) (internal quotation marks omitted). First, the “quantum of force” must be assessed. Id. at 1054. Force that 2 Although this excessive force standard is an objective test, it must not be confused with the standard for negligence claims under state law, as negligence is not actionable under § 1983. See Kingsley, 135 S. Ct. at 2472; Error! Main Document Only.Daniels, 474 U.S. at 332. imposes only a “minimal intrusion” upon the arrestee is considered minimal force. Johnson v. Cty. of Los Angeles, 340 F.3d 787, 793 (9th Cir. 2003). Intermediate force is force that is “capable of inflicting significant pain and causing serious injury” and, “while less severe than deadly force, nonetheless present[s] a significant intrusion upon an individual’s liberty interests.” Young v. Cty. of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011). Baton-strikes, pepper spray, and tasers are examples of intermediate force. Id.; Bryan v. MacPherson, 630 F.3d 805, 825–26 (9th Cir. 2010). And lethal or deadly force is “force that creates a substantial risk of causing death or serious bodily injury”—a severe intrusion on the arrestee’s Fourth Amendment interests. Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir. 2005). Second, the governmental interests at stake must be balanced against the quantum of force used. A court must analyze those governmental interests in light of the following factors: (1) the severity of the crime for which the plaintiff was arrested; (2) whether the plaintiff posed a threat to the safety of the officers or others; (3) whether the plaintiff was actively resisting arrest or attempting to flee; and (4) the availability of alternative methods of subduing the plaintiff. Davis, 478 F.3d at 1054. A plaintiff cannot simply restate these standards of law in a complaint. Instead, a plaintiff must provide specific facts supporting each elements of the claim and must allege facts showing a causal link between each defendant and Plaintiff’s injury or damage. Alleging “the mere possibility of misconduct” is not enough. Iqbal, 556 U.S. at 679. 5. Discussion Plaintiff has not alleged facts plausibly suggesting that the allegedly excessive force was applied pursuant to a policy, custom, or practice of the Nampa Police Department. See Monell, 436 U.S. 658, 694 (1978); Mabe, 237 F.3d at 1110–11. Plaintiff may attempt to remedy this deficiency in an amended complaint. 6. Standards for Amended Complaint If Plaintiff chooses to amend the Complaint, Plaintiff must demonstrate how the actions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980), abrogated on other grounds by Kay v. Ehler, 499 U.S. 432 (1991). Plaintiff must also allege a sufficient causal connection between each defendant’s actions and the claimed deprivation. Taylor, 880 F.2d at 1045; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss” or to survive screening under 28 U.S.C. §§ 1915 and 1915A. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Iqbal, 556 U.S. at 678 (“Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” (internal quotation marks and alteration omitted)). Rather, for each cause of action against each defendant, Plaintiff must state the following: (1) the name of the person or entity that caused the alleged deprivation of Plaintiff’s constitutional rights; (2) facts showing the defendant is a state actor (such as state employment or a state contract) or a private entity performing a state function; (3) the dates on which the conduct of the defendant allegedly took place; (4) the specific conduct or action Plaintiff alleges is unconstitutional; (5) the particular federal constitutional provision (or state law provision) Plaintiff alleges has been violated; (6) facts alleging that the elements of the violation are met—for example, Plaintiff must allege facts satisfying the elements of Fourth Amendment excessive force claim; (7) the injury or damages Plaintiff personally suffered; and (8) the particular type of relief Plaintiff is seeking from each defendant. Further, any amended complaint must contain all of Plaintiff’s allegations in a single pleading and cannot rely upon, attach, or incorporate by reference other pleadings or documents. Dist. Idaho Loc. Civ. R. 15.1 (“Any amendment to a pleading, whether filed as a matter of course or upon a motion to amend, must reproduce the entire pleading as amended. The proposed amended pleading must be submitted at the time of filing a motion to amend.”); see also Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (“[An] amended complaint supersedes the original, the latter being treated thereafter as non-existent.”), overruled in part on other grounds by Lacey v. Maricopa County, 693 F.3d 896, (9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990) (holding that the district court erred by entering judgment against a party named in the initial complaint, but not in the amended complaint). Plaintiff must set forth each different factual allegation in a separate numbered paragraph. The amended complaint must be legibly written or typed in its entirety, and it should be clearly designated as the “First Amended Complaint.” Plaintiff’s name and address should be clearly printed at the top left corner of the first page of each document filed with the Court. If Plaintiff files an amended complaint, Plaintiff must also file a “Motion to Review the Amended Complaint.” If Plaintiff does not amend within 28 days, or if the amendment does not comply with Rule 8, this case may be dismissed without further notice. See Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (“When a litigant knowingly and repeatedly refuses to conform his pleadings to the requirements of the Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim.”). ORDER IT IS ORDERED: 1. Plaintiff has 28 days within which to file an amended complaint as described above. If Plaintiff does so, Plaintiff must file (along with the amended complaint) a Motion to Review the Amended Complaint. If Plaintiff does not amend within 28 days, this case may be dismissed without further notice. 2. Plaintiffs request for appointment of counsel is DENIED without prejudice. Plaintiff may renew the request in an amended complaint. ZR DATED: March 31, 2020 wh) B. Ly inmill eee Za US. District Court Judge INITIAL REVIEW ORDER BY SCREENING JUDGE - 10