United States District Court, D. Arizona
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 ...