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. In a February 12, 2014 Order, the Court dismissed the First Amended Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file a second amended complaint that cured the deficiencies identified in the Order.
On March 26, 2014, Plaintiff filed a Second Amended Complaint (Doc. 9). The Court will order Defendant Frederiksen to answer Count One of the Second Amended Complaint and will dismiss Count Two without prejudice.
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 )).
II. Second Amended Complaint
In his Second Amended Complaint, Plaintiff sues Lieutenant Russel Frederiksen #5344 of the Phoenix Police Department. Plaintiff seeks damages.
In Count One, Plaintiff asserts a claim of excessive force by an officer. Plaintiff alleges the following facts: On October 18, 2011, around 11:00 p.m., Plaintiff was a passenger in a vehicle that was pulled over by Phoenix Police Officers Burke and Campbell. The vehicle was pulled over because it matched the description of a threat of means of transportation vehicle. Plaintiff ran from the vehicle because there was a parole hold on him for failing to report to his parole officer. As Plaintiff was running, Defendant Frederiksen, who was driving a Chevy Tahoe, swerved in front of Plaintiff and struck Plaintiff with his vehicle. Plaintiff continued to run toward a brick wall and began to scale the five-and-a-half-foot high wall. While Plaintiff was hanging from the brick wall with his back toward Defendant Frederiksen, Frederiksen yelled to Plaintiff, "Get down from there, get down." Without waiting for a response from Plaintiff, Frederiksen fired his Glock 30.45 caliber gun six times and struck Plaintiff four times in his lower extremities. Three shots hit Plaintiff's lower right leg, shattering his knee cap, and requiring extensive reconstructive surgery. One shot hit Plaintiff's left leg. All four bullets struck Plaintiff from behind. Plaintiff now has constant, chronic pain in his right leg, and he will have pins, rods and a steel plate in his right leg for the rest of his life. Plaintiff has trouble walking, can no longer run or jog, and he needs a wheelchair to transport him to his proceedings. Plaintiff alleges that at no time was he aggressive or did he pose any harm or threat toward Defendant Frederiksen or anyone else. Plaintiff did not have a weapon and he alleges that as he exited the vehicle, he stated that he was not in possession of a weapon.
After Plaintiff was shot and lying on the ground, he asked Officer Campbell to please call an ambulance because he had been shot. Campbell rolled Plaintiff over onto his stomach and said "you aren't shot." Campbell then picked up Plaintiff's legs and repeatedly slammed them onto the ground.
In Count Two, Plaintiff asserts that his Fourteenth Amendment due process rights have been violated. Plaintiff alleges the same facts that he alleged in Count One regarding the vehicle stop, his flight, and the shooting. Plaintiff further alleges the following facts: Defendant Frederiksen "chose to... bypass the courts and deny [Plaintiff] due process of law." Plaintiff contends that if he "had any accountability for the theft of said vehicle, then he shall be brought before the courts for criminal prosecution and according to the 6th Amendment enjoy the right to a... public trial by ...