IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
April 14, 2011
DANUEL CORREA, PLAINTIFF,
YUMA CITY POLICE DEPARTMENT, DEFENDANT.
On March 23, 2011, Plaintiff Danuel Correa, who is confined in the Yuma County Detention Center, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and a deficient Application to Proceed In Forma Pauperis. In a March 25, 2011 Order, the Court denied the deficient Application to Proceed and gave Plaintiff 30 days to either pay the filing fee or file a complete Application to Proceed In Forma Pauperis.
On April 7, 2011, Plaintiff filed a second Application to Proceed In Forma Pauperis (Doc. 6). The Court will grant the second Application to Proceed and will dismiss the Complaint with leave to amend.
I. Second Application to Proceed
In Forma Pauperis and Filing
Plaintiff's second Application to Proceed In Forma Pauperis will be
granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing
fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will assess an
initial partial filing fee of $25.93. The remainder of the fee will be
collected monthly in payments of 20% of the previous month's income
each time the amount in the account exceeds $10.00. 28 U.S.C. §
1915(b)(2). The Court will
enter a separate Order requiring the appropriate government agency
to collect and forward
the fees according to the statutory formula.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners
seeking relief against
a governmental entity or an officer or an employee of a governmental
entity. 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if
a plaintiff has raised
claims that are legally frivolous or malicious, that fail to state a
claim upon which relief may
be granted, or that seek monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915A(b)(1), (2).
A pleading 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) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.
But as the United States Court of Appeals for the Ninth Circuit has
instructed, courts must "continue to construe pro se filings
liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A
"complaint [filed by a pro se prisoner] 'must be held to less
than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v.
Pardus, 551 U.S. 89, 2 94 (2007) (per curiam)). 3 If
the Court determines that a pleading could be cured by the allegation
of other facts, 4 a pro se litigant is entitled to an opportunity to
amend a complaint before dismissal of the 5 action. See Lopez v.
Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court 6
should not, however, advise the litigant how to cure the defects. This
type of advice "would 7 undermine district judges' role as impartial
decisionmakers." Pliler v. Ford, 542 U.S. 225, 8 231 (2004); see also
Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court
was 9 required to inform a litigant of deficiencies). Plaintiff's
Complaint will be dismissed for failure to state a claim, with leave
to amend because the Complaint may possibly be saved by
In his two-count Complaint, Plaintiff sues Defendant Yuma City Police Department. He alleges that Defendant "blew an explosive charge in the face of the victim" and that this constitutes an aggravated assault on Plaintiff (Count One) and endangerment (Count Two), in violation of Arizona Revised Statutes §§ 13-1204 and 3-1201, respectively. In his Request for Relief, Plaintiff seeks monetary damages.
IV. Failure to State a Claim
Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id.
A. Failure to Link Defendants with Injuries
To state a valid claim under § 1983, plaintiffs must allege that they
suffered a specific injury as a result of specific conduct of a
defendant and show an affirmative link between the injury and the
conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72,
(1976). Conclusory allegations that a Defendant or group of
Defendants have violated a
constitutional right are not acceptable and will be
The actions of individuals may support municipal liability only if
the employees were
acting pursuant to an official policy or custom of the municipality.
Botello v. Gammick, 413
F.3d 971, 978-79 (9th Cir. 2005). A plaintiff must allege, as a
matter of law, that the policy
or custom of the municipality caused him to suffer constitutional
injury. Sadoski v. Mosley,
435 F.3d 1076, 1080 (9th Cir. 2006). Plaintiff has not alleged that
a policy or custom of
Defendant Yuma City Police Department caused his constitutional
injuries. Thus, the Court
will dismiss without prejudice Defendant Yuma City Police
B. Failure to Allege the Violation of a Constitutional Right.
Section 1983 provides a cause of action against persons acting under color of state law who have violated rights guaranteed by the United States Constitution and federal law. 42 U.S.C. § 1983; see also Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). Section 1983 does not provide a cause of action for violations of state law or state constitutional rights. Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir. 1981). In order to state a claim under § 1983, Plaintiff must allege a cognizable federal constitutional claim. Plaintiff has failed to allege any federal constitutional or federal-law violations; he has only alleged violations of Arizona statutes. Thus, the Court will dismiss without prejudice Plaintiff's Complaint because it fails to state a claim.
V. Leave to Amend
For the foregoing reasons, Plaintiff's Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the "First Amended Complaint." The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original 2 Complaint by reference. Plaintiff may include only one claim per count. 3 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 4 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of 5 the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; 6 (4) how the action or inaction of that Defendant is connected to the violation of Plaintiff's 7 constitutional right; and (5) what specific injury Plaintiff suffered because of that 8 Defendant's conduct. See Rizzo, 423 U.S. at 371-72, 377. 9 Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to state a claim. Conclusory allegations that a Defendant or group of Defendants have violated a constitutional right are not acceptable and will be dismissed.
Plaintiff should take note that the use of excessive force by police officers in the course of an arrest can violate the arrestee's Fourth Amendment right to be free from unreasonable seizures. See White by White v. Pierce County, 797 F.2d 812, 816 (9th Cir. 1986). The Fourth Amendment does not prohibit the use of reasonable force. Tatum v. City & County of San Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006). Whether the force was excessive depends on "whether the officers' actions [were] '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); Tatum, 441 F.3d at 1095; Lolli v. County of Orange, 351 F.3d 410, 415 (9th Cir. 2003). The Court must balance the nature and quality of the intrusion against the countervailing governmental interests at stake. Graham, 490 U.S. at 396; Lolli, 351 F.3d at 415. Moreover, [t]he "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . . "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," violates the Fourth Amendment.
Graham, 490 U.S. at 396 (citations omitted). "Whether a particular
use of force was
'objectively reasonable' depends on several factors, including the
severity of the crime that
prompted the use of force, the threat posed by a suspect to the
police or to others, and
whether the suspect was resisting arrest." Tatum, 441 F.3d at
Plaintiff should also take note that the Fourteenth Amendment Due
not the Eighth Amendment, protects pretrial detainees from excessive
force that amounts to
punishment. Gibson v. County of Washoe, 290 F.3d 1175, 1197 (9th
Cir. 2002). "[T]he
Fourth Amendment sets the 'applicable constitutional limitations'
for considering claims of
excessive force during pretrial detention." Id. (quoting Pierce v.
Multnomah County, 76 F.3d
1032, 1043 (9th Cir. 1996).
A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action. . . .
Plaintiff must submit an additional copy of every filing for use by the Court. See 3 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice 4 to Plaintiff. 5 D. Possible "Strike" 6 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails 7 to file an amended complaint correcting the deficiencies identified in this Order, the 8 dismissal may count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). 9 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
E. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Plaintiff's second Application to Proceed In Forma Pauperis (Doc. 6) is granted.
(2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $25.93.
(3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order.
(4) If Plaintiff fails to file an amended complaint within 30 days,
the Clerk of
Court must, without further notice, enter a judgment of dismissal
of this action with prejudice
that states that the dismissal may count as a "strike" under 28
U.S.C. § 1915(g).
(5) The Clerk of Court must mail Plaintiff a court-approved form for
filing a civil
rights complaint by a prisoner.
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