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Francisco v. Navajo Nation Police Department

United States District Court, D. Arizona

January 13, 2015

Gerald Francisco, Plaintiff,
v.
Navajo Nation Police Department, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

On April 7, 2014, Plaintiff Gerald Francisco, who was then confined in the Central Utah Correctional Facility in Gunnison, Utah, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis. Plaintiff failed to use this District's approved Application to Proceed In Forma Pauperis form for use by prisoners. For that reason, the Court denied Plaintiff's in forma pauperis application, but gave Plaintiff 30 days to either pay the filing and administrative fees or file a new Application to Proceed In Forma Pauperis using this District's approved form.

On July 17, 2014, Plaintiff filed an Application to Proceed In Forma Pauperis using this District's approved form. However, in his cover letter, Plaintiff stated that he was going to be released from prison on November 4, 2014 and provided the address where he would thereafter reside. In a November 19, 2014 Order, the Court denied Plaintiff's Application to Proceed In Forma Pauperis because he was no longer in custody and gave Plaintiff 30 days to either pay the filing and administrative fee or file a non-prisoner Application to Proceed in District Court Without Prepaying Fees or Costs.

On November 26, 2014, Plaintiff filed a non-prisoner Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 16).[1] The Court will grant the Application to Proceed and will dismiss the 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 ). Plaintiff's 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. Complaint

In his Complaint, Plaintiff appears to allege one count of excessive force against Defendants Navajo Nation Police Department and Officer Williams. Plaintiff alleges the following facts: on November 16, 2012, Plaintiff was arrested by Defendant Williams. When Williams handcuffed Plaintiff, Williams "twisted [Plaintiff's] wrist and snapped it." Plaintiff told Williams several times that his wrist was broken and asked Williams to loosen the handcuffs. Williams ignored Plaintiff's request. Plaintiff was in a lot of pain. Plaintiff was later taken to the Tuba City Indian Health Services Emergency Room where x-rays were taken that confirmed that Plaintiff's wrist was broken.

Plaintiff alleges that he was injured as follows: he broke his right wrist and it was painful. ...


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