United States District Court, D. Arizona
ORDER
Honorable John J. Tuchi United States District Judge
At
issue is pro se Plaintiff Oscar Ybarra, Jr.'s
Motion to Proceed in District Court Without Prepaying Fees or
Costs (Doc. 2). Having determined that Plaintiff is unable to
pay the Court's fees, the Court grants the Application.
However, as set forth below, upon screening Plaintiff's
Complaint (Doc. 1, Compl.) pursuant to 28 U.S.C. §
1915(e)(2), the Court finds that the Complaint does not
conform with the Federal Rules of Civil Procedure. The Court
therefore dismisses the Complaint with permission to re-file
no later than April 19, 2019.
I.
LEGAL STANDARD
A.
28 U.S.C. § 1915(e)(2)
For
cases proceeding in forma pauperis, Congress
provided that a district court “shall dismiss the case
at any time if the court determines” that the
“allegation of poverty is untrue” or that the
“action or appeal” is “frivolous or
malicious, ” “fails to state a claim on which
relief may be granted, ” or “seeks monetary
relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2). Section 1915(e)
applies to all in forma pauperis
proceedings. Lopez v. Smith, 203 F.3d 1122, 1129
(9th Cir. 2000). “It is also clear that section 1915(e)
not only permits but requires a district court to dismiss an
in forma pauperis complaint that fails to state a
claim.” Id. at 1127. The Court must therefore
dismiss an in forma pauperis complaint if it fails
to state a claim or if it is frivolous or malicious.
II.
ANALYSIS
A.
28 U.S.C. § 1983
In the
Complaint, Plaintiff alleges that, on February 3, 2018,
officers of the Phoenix Police Department “participated
and engaged in [] beating” him, resulting in various
injuries. (Compl. at 4.) Plaintiff also alleges that the
Phoenix Fire Department responded to the incident but failed
to provide any medical aid. (Compl. at 4.) Plaintiff makes
claims under the 4th, 8th and 14th Amendments to the United
States Constitution, as well as under various state statutes
and constitutional provisions, seeking money damages. The
Court assumes that Plaintiff attempts to bring a claim under
42 U.S.C. § 1983, which provides for a private right of
action against a state actor for a constitutional violation.
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012).
While
Plaintiff states a claim against the unnamed police officers,
Plaintiff fails to state a claim against Phoenix Police Chief
Jeri Williams, Phoenix Fire Chief Kara Kalkbrenner or Phoenix
Mayor Thelda Williams. (Compl. at 2.) Plaintiff does not
specify whether he seeks damages against these three
Defendants in their official or individual capacities.
Generally, “personal-capacity suits seek to impose
personal liability upon a government official for actions he
takes under color of state law, ” while
“official-capacity suits, in contrast, ‘generally
represent only another way of pleading an action against an
entity of which an officer is an agent.'”
Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985).
To establish individual liability, “it is enough to
show that the official, acting under color of state law,
caused the deprivation of a federal right.”
Id. at 166.
In his
Complaint, Plaintiff alleges actions that individual police
officers took, but not actions that the three named city
officials took. If Plaintiff is basing his claims against
Defendants Chief Williams, Chief Kalkbrenner, and Mayor
Williams on city policies rather than specific conduct these
individuals engaged in, Plaintiff may be alleging municipal
liability rather than individual liability. In Monell v.
Department of Social Services of the City of New York,
436 U.S. 658 (1978), the Supreme Court held that a
municipality is not liable for § 1983 claims under a
theory of vicarious liability. Instead, a plaintiff must show
that the municipality has adopted an “official
policy” or “custom” that caused the alleged
constitutional violation, “whether made by its
lawmakers or by those whose edicts or acts may fairly be said
to represent official policy.” Id. “The
‘official policy' requirement was intended to
distinguish acts of the municipality from acts of
employees of the municipality, and thereby make
clear that municipal liability is limited to actions for
which the municipality is actually responsible.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 479
(1986) (quoting Monell, 436 U.S. at 694).
If
Plaintiff wishes to sue Defendants Chief Williams, Chief
Kalkbrenner, and Mayor Williams in their official capacities,
he must demonstrate a municipal policy or custom that could
plausibly be the moving force behind Plaintiff's alleged
injuries. Without doing so, Plaintiff is urging the Court to
impose vicarious liability against City of Phoenix officials
based solely on the conduct of the unnamed officers. See
Connick v. Thompson, 563 U.S. 51, 60-61 (2011). Such
liability will not lie. See Monell, 436 U.S. at 694.
B.
Leave to Amend
If a
defective complaint can be cured, the plaintiff is entitled
to amend the complaint before the action is dismissed.
See Lopez, 203 F.3d at 1127-30. Therefore, the Court
will give Plaintiff an opportunity, if he so chooses, to
amend his Complaint. Plaintiff must make clear his
allegations in short, plain statements and identify whether
he seeks relief against municipal officials in their
individual or official capacities, and if necessary, must
identify a municipal policy or practice that resulted in his
constitutional injuries. The Court also advises Plaintiff
that certain resources for self-represented parties,
including a handbook and the Local Rules, are available on
the Court's website, www.azd.uscourts.gov, by
following the link “For Those Proceeding Without an
Attorney.”
IT
IS THEREFORE ORDERED granting Plaintiffs Application
to Proceed in District Court Without ...