United States District Court, D. Arizona
February 12, 2014
Delano Danny Quiroz, Jr., Plaintiff,
Phoenix Police Department, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
On September 11, 2013, Plaintiff Delano Danny Quiroz, Jr., who is confined in the Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a November 4, 2013 Order, the Court granted the Application to Proceed and dismissed the Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order. On December 4, 2013, Plaintiff filed his First Amended Complaint (Doc. 7). The Court will dismiss the First Amended Complaint with leave to amend.
I. 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 )).
If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies). Plaintiff's First Amended Complaint will be dismissed for failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.
II. First Amended Complaint
In his three-count First Amended Complaint, Plaintiff asserts claims of excessive force by an officer, denial of due process, and failure to train. He names as Defendants the Phoenix Police Department and Lieutenant Russel Frederiksen #5344 of the Phoenix Police Department. Plaintiff seeks compensatory and punitive damages.
Plaintiff designates Count I as a claim of excessive force by an officer. He alleges the following facts: On October 18, 2011, Plaintiff was the passenger in a vehicle that was pulled over by two Phoenix police officers (Campbell and Burke) who believed the vehicle "matched the description of alleged theft vehicle at the time." Plaintiff exited the vehicle and fled from the officers "due to a parole hold." Defendant Frederiksen was driving a Chevy Tahoe and swerved into Plaintiff's path, striking Plaintiff. Plaintiff continued to flee toward an eight-foot brick wall. Plaintiff attempted to climb over the wall and had both hands on the top of the wall and was hanging from the wall with his back toward Frederiksen when Frederiksen removed his gun, a Glock 30.45 caliber, from his holster and yelled to Plaintiff, "Get down from there. Get down." Without waiting for a response from Plaintiff, Frederiksen fired his gun six times in rapid succession and struck Plaintiff four times in his lower extremities. Plaintiff asserts that all four bullets struck him from behind. Plaintiff was shot once in the left leg and three times in his right leg, which shattered his knee cap and required extensive surgery. Plaintiff now has pins, rods, and a plate in his right leg, has trouble walking, and is in constant chronic pain.
Plaintiff asserts that at no time did he pose any harm or threat to Frederiksen or the other officers. After Plaintiff was shot, he was lying on the ground and asked the officers to please call an ambulance because he had been shot in his legs. "They" rolled Plaintiff onto his stomach and said, "you aren't shot, " and then repeatedly picked up Plaintiff's legs "slamming them onto the ground causing [Plaintiff] crucial pain." Plaintiff yelled for them to stop, "but they repeatedly did so." Plaintiff asserts that after his arrest, detectives tried to "link up" the vehicle Plaintiff was in with two robberies. Plaintiff states that he is currently awaiting trial "in an ongoing case." Plaintiff also alleges that Defendant Frederiksen and Officer Campbell "fabricated reports to cover up the unjustifiable and unconstitutional shooting."
In Count II, Plaintiff alleges that his due process rights were violated when Defendant Frederiksen shot him. He alleges that Frederiksen chose to deprive him of "life and liberty, oversee me equal protection of the law, which as a United States citizen as a resident of Arizona [he] is entitled to, bypass the courts and deny [Plaintiff his] right to due process." Plaintiff further alleges that Defendant Frederiksen and Officers Campbell and Burke "fabricated reports to cover up the unjustified and unconstitutional malicious act."
Plaintiff designates Count III as a Fifth Amendment violation and the issue involved as "inadequately train/[illegible]/discipline officers on excessive use of force." Plaintiff alleges that the "Phoenix Police Department is liable to ensure the safety of each and every citizen in Maricopa County, concerning the actions and conduct of their officers. Excessive use of force occurs very often toward citizens of Maricopa County and it occurred directly to [Plaintiff] on Oct. 18, 2011[.]" Plaintiff alleges that the Phoenix Police Department failed to perform a "professional and thorough investigation upon the use of excessive force" to discover that he was "shot from the back unlawfully, " that the officers' reports were fabricated, and that it was "physically impossible for their story to be true." Plaintiff alleges that "the obvious improper training, the lack of discipline, and the failure to properly and thoroughly investigate use of excess force by the Phoenix Police Department is liable to [Plaintiff's] injuries, and disability, and violated [his] 5th Amendment of the Constitution by depriving [Plaintiff] of life, liberty, or property, without due process of law."
According to records available online, Plaintiff is in custody and awaiting trial in Maricopa County Superior Court, case CR2011-154084, on charges of armed robbery, first-degree burglary, theft-means of transportation, aggravated assault, endangerment, and misconduct involving weapons, all stemming from events on October 18, 2011. Trial on these charges is currently scheduled to begin on February 6, 2014.
III. Failure to State a Claim
To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the conduct about which he complains was committed by a person acting under the color of state law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). A plaintiff must also allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).
A. Phoenix Police Department and Count III
Plaintiff sues the Phoenix Police Department. As the Court informed Plaintiff in its November 4, 2013 Order, a municipal police department is not a "person" within the meaning of § 1983 and cannot be sued. See e.g., Petaway v. City of New Haven Police Dep't, 541 F.Supp.2d 504 (D. Conn. 2008); Pahle v. Colebrookdale Tp., 227 F.Supp.2d 361 (E.D. Pa. 2002). Accordingly, the Phoenix Police Department and Count III will be dismissed.
B. Count I
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 1095.
In this case, Plaintiff provides little information about the circumstances of his arrest that would allow the Court to evaluate the reasonableness of the force used against him. For instance, Plaintiff fails to provide information about why he was on a parole hold, the severity of the crime at issue, whether he was shot during daylight hours or after dark, whether he was carrying a weapon, and whether the officers were aware of any weapon on Plaintiff. Also, other than Frederiksen's command to get down from the wall, Plaintiff fails to state whether Frederiksen or the other officers said anything else to him before he was shot. Plaintiff asserts that he was fleeing from officers, which indicates he may have been evading or resisting arrest. Finally, Plaintiff fails to state if he was arrested at the time he was shot and what charges if any resulted from his arrest. Plaintiff's allegations of excessive force in Count II fail to state a claim.
C. Count II
Plaintiff designates Count II as a Fourteenth Amendment due process violation. Plaintiff alleges that when Defendant Frederiksen shot Plaintiff, Frederiksen chose to deprive Plaintiff of "life and liberty, oversee me equal protection of the law, which as a United States citizen as a resident of Arizona [he] is entitled to, bypass the courts and deny [Plaintiff his] right to due process." It is unclear from these assertions what process Plaintiff has been denied. As noted, Plaintiff is scheduled for trial on multiple charges related to events on October 18, 2011. 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. Bd. of Regents of the Univ. 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. Because Plaintiff fails to allege any facts supporting that he has been denied due process, Count II will be dismissed.
IV. Leave to Amend
For the foregoing reasons, Plaintiff's First Amended Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a second amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a second amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the second 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 "Second Amended Complaint." The second amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint or First Amended Complaint by reference. Plaintiff may include only one claim per count.
A second amended complaint supersedes the original Complaint and First Amended 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 the original Complaint and First Amended Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint or first amended complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a second amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
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 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
D. Possible "Strike"
Because the First Amended Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). 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) The First Amended Complaint (Doc. 7) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a second amended complaint in compliance with this Order.
(2) If Plaintiff fails to file a second 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).
(3) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.