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Newton v. City of Phoenix

United States District Court, Ninth Circuit

January 15, 2014

Hearman Newton, Plaintiff,
v.
City of Phoenix, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiff Hearman Newton, who is confined in the Maricopa County Fourth Avenue Jail, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will order Defendant Myers to answer Count One of the Complaint and will dismiss the remaining claims and Defendant without prejudice.

I. Application to Proceed In Forma Pauperis and Filing Fee

Plaintiff's 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 $17.04. 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, 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.

"[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 679. 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 681.

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 stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).

III. Complaint

Plaintiff names the City of Phoenix and Phoenix Police Officer Michael Myers as Defendants in the Complaint.

Plaintiff raises three claims for relief. In Count One, Plaintiff claims his Fourteenth Amendment rights were violated when Defendant Myers used excessive force on him during arrest. Plaintiff alleges that on February 19, 2013, Defendant Myers arrested Plaintiff for shoplifting and stated in the police report that Plaintiff came toward him with clenched fists. Plaintiff states that this is untrue and that he made no action toward Defendant Myers. Plaintiff claims that Defendant Myers tased him, and then dragged him on the ground after he was unconscious. Plaintiff claims he suffered two torn ligaments in his right shoulder, scrapes and bruises, and cuts on his wrists where the handcuffs were placed too tightly. Plaintiff contends that the force used was unreasonable in light of the circumstances of his arrest.

In Count Two, Plaintiff claims Defendant Myers's actions were negligent and violated Plaintiff's Fourteenth Amendment rights. Plaintiff also states he believes Defendant Myers's actions were the result of bias because Plaintiff is a black man and violated Plaintiff's right to equal protection.

In Count Three, Plaintiff claims that Defendant Myers's actions caused him to suffer emotional and physical distress, in ...


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