Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tomlin v. Gillis

United States District Court, D. Arizona

December 17, 2014

John Henry Tomlin, Plaintiff,
v.
Nathaniel E. Gafvert & Kevin Gillis, Defendants.

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

Plaintiff John Henry Tomlin, who is confined in the Arizona State Prison Complex-Florence, East Unit, in Florence, Arizona, filed a pro se civil rights Complaint in Maricopa County Superior Court. On September 30, 2013, Defendant Nathaniel E. Gafvert removed the action to this Court and paid the $400.00 filing fee.

In a January 15, 2014 Order, the Court dismissed the Complaint with leave to amend 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 February 12, 2014, Plaintiff filed his First Amended Complaint (Doc. 8), and Defendant Nathaniel E. Gafvert filed an answer.

On March 17, 2014, Plaintiff filed a Motion to Amend/Correct the First Amended Complaint and lodged a Second Amended Complaint. In a June 26, 2014 Order, the Court granted Plaintiff's Motion to Amend, directed the Clerk of the Court to lodge the Second Amended Complaint, and dismissed that Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file a third amended complaint that cured the deficiencies identified in the Order.

On July 29, 2014, Plaintiff filed a Third Amended Complaint (Doc. 16). The Court will require Defendants to answer the Third Amended Complaint.

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. Third Amended Complaint

Plaintiff names Mesa Police Officers Nathaniel E. Gafvert and Kevin Gillis as Defendants in his Third Amended Complaint.

Plaintiff raises one claim for excessive use of force in violation of the Fourth Amendment. Plaintiff alleges that at approximately 9:20 p.m. on January 3, 2012, he was walking with his bicycle from a market in Mesa where he had purchased some food items, and he stopped a short distance from the store to throw away some consumed food trash. He alleges that Defendant Gafvert, who was driving an un-marked police truck, suddenly stopped, exited the truck, and approached Plaintiff. Defendant Gafvert inquired about what Plaintiff was doing, and Plaintiff told him he was just throwing away some trash. Defendant Gillis then arrived on the scene in another un-marked police vehicle. Plaintiff alleges that Defendant Gafvert suddenly and forcefully knocked Plaintiff to the ground and hit him on the head with something sharp. Defendants handcuffed Plaintiff while he was semi-conscious, and he awakened to see three undercover police officers searching the surrounding area with flashlights. Plaintiff alleges that he heard Defendant Gafvert say that he knew who Plaintiff was and "there has to be something around here." Plaintiff advised the officers that they had "jumped him for nothing." Plaintiff was arrested and taken to the Mesa City Jail where he learned that Defendant Gafvert had charged him with five offenses. Plaintiff alleges that the arrest took place on a long, dark street and no others were present. He alleges that he had not committed a crime to prompt the use of force, he posed no threat to Defendants, and he had no weapon. He further ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.