Oshiro v. Bachman ( 2023 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 Perry Brian Oshiro, Case No. 2:22-cv-02100-APG-BNW 5 Plaintiff, 6 SCREENING ORDER v. 7 M. Bachman 8 Defendant. 9 10 Clark County Detention Center inmate Perry Oshiro brings this civil-rights case under 42 11 U.S.C. § 1983 for events that allegedly occurred during his arrest on November 3, 2022. Oshiro 12 moves to proceed in forma pauperis. ECF No. 4. Oshiro submitted the declaration required by 28 13 U.S.C. § 1915(a) showing an inability to prepay fees and costs or give security for them. 14 Oshiro’s request to proceed in forma pauperis, therefore, will be granted. The Court now screens 15 Oshiro’s complaint (ECF No. 1-1) as required by 28 U.S.C. §§ 1915(e)(2) and 1915A. 16 I. ANALYSIS 17 A. Screening Standard For Pro Se Prisoner Claims 18 Federal courts must conduct a preliminary screening in any case in which a prisoner seeks 19 redress from a governmental entity or officer or employee of a governmental entity. See 28 20 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any 21 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 22 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 23 (2). In addition to the screening requirements under § 1915A, the Prison Litigation Reform Act 24 requires a federal court to dismiss a prisoner’s claim if it “fails to state a claim on which relief 25 may be granted.” 28 U.S.C. § 1915(e)(2); accord Fed. R. Civ. Proc. 12(b)(6). To state a claim 26 under 42 U.S.C. § 1983, a plaintiff must allege “(1) the defendants acting under color of state law 27 (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” Williams v. 1 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 2 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 3 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 4 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 5 v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only 6 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 7 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 8 2014) (quoting Iqbal, 556 U.S. at 678). 9 In considering whether the complaint is sufficient to state a claim, all allegations of 10 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 11 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 12 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 13 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 14 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 15 But unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 16 plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 17 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 18 B. Screening the Amended Complaint 19 Oshiro brings a single claim alleging excessive force during his arrest on November 3, 20 2022. Oshiro alleges that, as he was being discharged from a hospital, LVMPD Officer Bachman 21 arrested him and secured the handcuffs too tightly. He also alleges he asked the officer to loosen 22 the handcuffs to no avail. As a result, on the way to being booked at the Clark County Detention 23 Center, the handcuffs remained tight. Once he arrived at the Clark County Detention Center, his 24 right hand started hurting. After receiving some tests, he was diagnosed with “handcuff 25 neuropathy.” He now has nerve damage and cannot feel much on his right wrist. He seeks 26 monetary relief ($2 million dollars). 27 A claim of excessive force during an arrest is analyzed under the Fourth Amendment’s 1 the use of force by a law enforcement officer was objectively reasonable must be assessed “in 2 light of the facts and circumstances confronting [the officer], without regard to their underlying 3 intent or motivation.” Id. at 397. “Determining whether the force used to effect a particular 4 seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and 5 quality of the intrusion of the individual’s Fourth Amendment interests against the countervailing 6 governmental interests at stake.” Id. at 396 (quotations omitted). In this analysis, the court must 7 consider the following factors: (1) the severity of the crime at issue; (2) whether the plaintiff 8 posed an immediate threat to the safety of the officers or others; and (3) whether the plaintiff 9 actively resisted arrest. Id.; see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 10 921 (9th Cir. 2001). While the Graham factors are guidelines, “there are no per se rules in the 11 Fourth Amendment excessive force context” and the court may examine the totality of the 12 circumstances. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc). 13 Here, Oshiro states a colorable excessive force claim against Officer Bachman. He alleges 14 that Officer Bachman placed handcuffs on him that were too tight and refused to loosen them 15 when asked to. Liberally construing Oshiro’s complaint, it appears he was at a hospital at the time 16 the handcuffs were placed on him, that he did not pose a threat to the officers or anyone else, and 17 that he did not resist arrest. Therefore, Oshiro’s excessive force claim should proceed against 18 Officer Bachman. 19 II. CONCLUSION 20 Accordingly, IT IS THEREFORE ORDERED that Plaintiff’s application to proceed in 21 forma pauperis (ECF No. 4) is GRANTED. 22 IT IS FURTHER ORDERED that the Clerk of Court must detach and file Plaintiff’s 23 complaint (ECF No. 1-1) and send Plaintiff a courtesy copy of it. 24 IT IS FURTHER ORDERED that the Clerk of Court must send Plaintiff a blank copy of 25 form USM-285. 26 IT IS FURTHER ORDERED that Plaintiff shall have until May 3, 2023 to fill out the 27 required USM-285 form and send it to the U.S. Marshals Service. On the form, Plaintiff must fill 1 IT IS FURTHER ORDERED that the Clerk of Court is directed to issue a summons for 2 the defendant. 3 IT IS FURTHER ORDERED that the Clerk of Court serve a copy of this order, the issued 4 summons, and the operative complaint (ECF No. 1-1) on the U.S. Marshals Service. 5 IT IS FURTHER ORDERED that upon receipt of the USM-285 form, the U.S. Marshals 6 Service shall, in accordance with Federal Rule of Civil Procedure 4(c)(3), attempt service on the 7 defendant. 8 9 DATED: April 3, 2023 10 11 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27