Powell v. City of Bellingham ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 JEROME LENORDA POWELL, II, Cause No. C22-0874RSL 8 Plaintiff, AMENDED1 ORDER 9 v. ADOPTING IN PART THE 10 REPORT AND CITY OF BELLINGHAM, et al., RECOMMENDATION 11 Defendants. 12 13 This matter comes before the Court on the Report and Recommendation of the Honorable 14 15 David W. Christel, United States Magistrate Judge (Dkt. # 13) and plaintiff’s “Motion for Leave 16 to Amend” (Dkt. # 14). Having reviewed the record in the above-captioned matter, the Court 17 adopts the Report and Recommendation in all respects except that plaintiff will be given leave to 18 19 amend his allegations regarding the excessive force claim against Officers Starkovich and 20 Lyons. All other claims are hereby DISMISSED. 21 In order to state an excessive force claim upon which relief may be granted, the claim 22 23 cannot rest on an assumption that plaintiff was innocent in light of Heck v. Humphrey, 512 U.S. 23 25 26 27 1 The original Order Adopting in Part the Report and Recommendation was returned to the Court 28 as undeliverable. Mr. Powell recently filed a notice of change of address. The amended order resets the 1 477 (1995), and plaintiff must allege facts giving rise to the plausible inference that the amount 2 of force Officers Starkovich and Lyons used was excessive given the circumstances. 3 Plaintiff shall file a second amended complaint using the form provided. The second 4 5 amended complaint must be legibly rewritten or retyped in its entirety, it should contain the 6 same case number, and it may not incorporate any part of the first or second complaints by 7 reference. The second amended complaint will act as a complete substitute for the previous 8 9 complaints, and not as a supplement. See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th 10 Cir. 1997), overruled in part on other grounds by Lacey v. Maricopa County, 693 F.3d 896 (9th 11 Cir. 2012). The Court will screen the second amended complaint to determine whether it 12 13 contains factual allegations sufficient to raise a plausible inference that Officers Starkovich 14 and/or Lyons used excessive force when arresting plaintiff in April 2020. Attachments will not 15 be considered as a substitute for allegations in the second amended complaint itself: plaintiff is 16 17 therefore directed to include all allegations and relevant facts in the body of the second amended 18 complaint. 19 If plaintiff fails to file a second amended complaint or fails to adequately address the 20 21 issues raised herein on or before January 16, 2023, the above-captioned matter will be 22 dismissed. 23 The Clerk of Court is to send plaintiff the appropriate forms for filing a 42 U.S.C. § 1983 23 25 civil rights complaint and for service and to send copies of this Order and Pro Se Instruction 26 Sheet to plaintiff. The Clerk is further directed to note this matter for consideration on Friday, 27 January 20, 2023. 28 1 Dated this 19th day of December, 2022. 2 3 Robert S. Lasnik 4 United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 23 25 26 27 28