Jesus Jorge Flores-Ramirez v. Three Unk. Federal Task-Force Agents et al, No. 2:2017cv02360 - Document 13 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. The Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the dat e of this Memorandum and Order within which to file a First Amended Complaint. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. Plaintiff is further a dvised that if he no longer wishes to pursue this action, he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's convenience. (See document for further details). (Attachments: # 1 Civil Rights Complaint Form, # 2 Notice of Dismissal Form) (mr)
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Jesus Jorge Flores-Ramirez v. Three Unk. Federal Task-Force Agents et al Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JESUS JORGE FLORES-RAMIREZ, 11 Plaintiff, 12 MEMORANDUM DECISION AND ORDER v. 13 DISMISSING COMPLAINT WITH THREE UNKNOWN FEDERAL TASK FORCE AGENTS, et al., 14 15 Case No. CV 17-2360 SJO (SS) LEAVE TO AMEND Defendants. 16 17 I. 18 INTRODUCTION 19 Pending before the Court is a civil rights complaint filed by 20 21 Jesus 22 proceeding pro se but not in forma pauperis,1 pursuant to Bivens 23 v. Six Unknown Named Agents Of Federal Bureau Of Narcotics, 403 24 U.S. 388 (1971).2 25 Jorge Flores-Ramirez (“Plaintiff”), a federal (“Complaint” or “Compl.,” Dkt. No. 1). prisoner Congress 26 Plaintiff paid the full filing fee on November 15, 2017. No. 12). 27 2 28 1 (Dkt. The caption of the Complaint states that it is brought under 42 U.S.C. § 1983. However, section 1983 claims must allege a violation of federal constitutional or statutory rights by persons Dockets.Justia.com 1 mandates that the court screen, 2 complaint in a civil action in which a prisoner seeks redress from 3 a governmental entity or officer or employee of a governmental 4 entity.” 5 complaint, or any portion of it, before service of process if the 6 court concludes that the complaint (1) is frivolous or malicious, 7 (2) fails to state a claim upon which relief can be granted, or 8 (3) seeks monetary relief from a defendant who is immune from such 9 relief. 28 U.S.C. § 1915A(a). 28 U.S.C. § 1915A(b). as soon as practicable, “a The court may dismiss such a Screening applies even if, as here, 10 the prisoner-plaintiff has paid the filing fee in full. 11 Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (section 1915A 12 applies 13 defendants “regardless of whether the prisoner has paid a filing 14 fee”). 15 with leave to amend.3 to civil complaints by prisoners against See, e.g., government For the reasons stated below, the Complaint is DISMISSED 16 17 18 19 20 21 acting under color of state law, and none of the Defendants is a state employee. Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). An action brought against agents acting under color of federal law, as here, is properly brought under Bivens. Morgan v. United States, 323 F.3d 776, 780 (9th Cir. 2003). “[Section] 1983 serves the same purpose for state officials as do Bivens suits for federal officials.” Ward v. Caulk, 650 F.2d 1144, 1148 (9th Cir. 1981) (citing Carlson v. Green, 446 U.S. 14, 24 n.11 (1980)). 26 Because “[a]ctions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens[,]” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991), courts routinely apply cases discussing § 1983 claims to Bivens claims. See, e.g., Velasquez v. Senko, 643 F. Supp. 1172, 1179 n.11 (N.D. Cal. 1986) (“[T]his Court relies on cases construing § 1983 to determine the propriety of Bivens claims against federal officers.”). 27 3 22 23 24 25 28 A magistrate judge may dismiss a complaint with leave to amend without the approval of a district judge. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 2 1 II. 2 ALLEGATIONS OF THE COMPLAINT 3 4 Plaintiff sues (1) “three unk[nown] Federal Task Force 5 Agents,” (2) an “Unknown Federal Task Force Agency,” and (3) “one 6 unk[nown] 7 Plaintiff states that the “unknown Federal Task Force Supervisor” 8 is named as a defendant for failure to train and supervise the 9 agents who “illegally” arrested him. Federal Task Force Supervisor.” (Compl. (Id. at 3). at 1). The “unknown 10 Federal Task Force Agency” is named because it is the entity the 11 individual Defendants work for. (Id.). 12 13 The Complaint alleges that three federal agents “burst into 14 [Plaintiff’s] residence” without 15 permission at 10:00 p.m. on September 18, 2014. 16 of the agents were armed and pointed their weapons at Plaintiff, 17 his wife, their four children, and their friends. 18 The agents separated Plaintiff’s 15-year old son from his parents 19 and interrogated him about “a drug deal that [had] occurred three 20 weeks earlier.” 21 wife and their children about their immigration status, threatened 22 to deport Plaintiff’s wife and children, and told Plaintiff to take 23 “one last look at his family” because he would not see them again. 24 (Id. at 2-3). 25 red 49’ers cap” during the raid. (Id. at 2). a warrant or any resident’s (Id. at 1). All (Id. at 1-2). The agents questioned Plaintiff, his The agents “illegally seized two cell phones and a (Id. at 2). 26 27 28 The agents handcuffed Plaintiff and took him to a nearby parking lot, where they interrogated him. 3 (Id. at 3). Plaintiff 1 was not given a written Miranda waiver form, and while he “was 2 advised [orally] of some Miranda rights,” they “were never the less 3 [sic] 4 Plaintiff’s 15-year old son and once again threatened to deport 5 Plaintiff’s wife and remaining children, or have them separated in 6 “far off foster homes.” 7 reference to Plaintiff’s subsequent conviction and appeal, but does 8 not discuss their substance or outcome.4 9 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 violated.” (Id.). The (Id.). agents threatened to arrest The Complaint makes passing (Id. at 2-3). The Court takes judicial notice of Plaintiff’s criminal proceedings in this Court and the Ninth Circuit. See In re Korean Air Lines Co., Ltd., 642 F.3d 685, 689 n.1 (9th Cir. 2011) (a court may take judicial notice of a court’s own records in other cases and the records of other courts). Plaintiff was convicted in a bench trial on one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and one count of distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(ii). (See United States v. Jesus Jorge Flores-Ramirez, C.D. Cal. CR 14-689 PA, Dkt. No. 96). Plaintiff challenged his conviction and sentence in the Ninth Circuit, arguing, inter alia, that his confession was the fruit of an unlawful, warrantless search; that his confession and waiver of Miranda rights were involuntary because the agents coerced him with explicit and implicit threats to his family; and that the district court erred in denying downward adjustments for acceptance of responsibility and Plaintiff’s minor role in the conspiracy. (See United States of America v. Jesus Jorge Flores-Ramirez, 9th Cir. Case No. 1550330, Dkt. No. 26, at 20-44). On October 18, 2017, the Ninth Circuit affirmed conviction but remanded for resentencing in light of an decision making retroactive certain factors for reduction. (Id., Dkt. No. 146 at 3). The entirety of affirmance of Plaintiff’s conviction reads: Plaintiff’s intervening minor role the Court’s Even assuming that the district court erred by admitting [Plaintiff’s] confession, any error was harmless because the evidence of guilt was overwhelming. United States v. Butler, 249 F.3d 1094, 1101 (9th Cir. 2001). Among other things, Special Agent Baker identified [Plaintiff] at trial as the individual who delivered cocaine to him. Baker also testified that he and [Plaintiff] identified one another through code names and the serial number on a dollar bill. Baker and the other government agents communicated, through an encrypted Blackberry, with an intermediary in arranging [Plaintiff’s] delivery. 4 1 Plaintiff claims that the agents’ actions violated his Fourth 2 Amendment rights against illegal search and seizure and his Eighth 3 Amendment rights against cruel and unusual punishment due to the 4 agents’ use of “excessive force.” 5 alleges that the agents coerced his confession and Miranda waiver 6 “by verbally threatening his family and physically pointing their 7 guns” at them in violation of his Fifth and Sixth Amendment rights. 8 (Id. at 4). Plaintiff seeks ten million dollars in damages. (Id.). (Id. at 1). Plaintiff further 9 10 III. 11 DISCUSSION 12 13 Under 28 U.S.C. § 1915A(b), the Court must dismiss the 14 Complaint due to pleading defects. 15 a pro se litigant leave to amend his defective complaint unless 16 “it is absolutely clear that the deficiencies of the complaint 17 could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 18 1212 and 19 omitted). 20 clear” that at least some of the defects of Plaintiff’s Complaint 21 could not be cured by amendment. 22 DISMISSED with leave to amend. 23 \\ 24 \\ 25 26 27 28 (9th Cir. 2012) (citation However, the Court must grant internal quotation marks For the reasons discussed below, it is not “absolutely Photographs and transaction. an audio The Complaint is therefore recording captured the (Id. at 2). On remand, the district court resentenced Plaintiff to one hundred twenty-one months on each of the two counts for which he was convicted, to be served concurrently. (FloresRamirez, C.D. Cal. CR 14-689, Dkt. No. 155). 5 1 A. The “Unnamed Task Force Agency” Is An Improper Defendant 2 3 Plaintiff names an “Unknown Federal Task Force Agency” as a 4 Defendant. However, a civil rights action under Bivens may be 5 brought only against federal employees, not the United States or 6 its agencies. 7 61, 72 (2001); id. at 70-71 (because the “purpose of Bivens is to 8 deter individual federal officers from committing constitutional 9 violations,” the “deterrent effects of the Bivens remedy would be 10 lost” if the Court “were to imply a damages action directly against 11 federal agencies”). 12 available against federal agencies or federal agents sued in their 13 official capacities.” 14 1250, 1257 (9th Cir. 2008). 15 the Unknown Federal Task Force Agency must be dismissed. Correctional Services Corp. v. Malesko, 534 U.S. As such, “no Bivens-like cause of action is Ibrahim v. Dept. of Homeland Sec., 538 F.3d Accordingly, any Bivens claims against 16 17 B. 18 Plaintiff Fails To State A Claim Against The Individual Defendants 19 20 To establish a civil rights violation, a plaintiff must show 21 either the defendant’s direct, 22 constitutional violation, or some sufficient causal connection 23 between the defendant’s conduct and the alleged violation. 24 Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011). 25 \\ 26 \\ 27 \\ 28 \\ 6 personal participation in the See 1 1. The Unnamed Agents 2 3 The Complaint alleges that three “unknown Federal Task Force 4 agents” violated Plaintiff’s constitutional rights in effecting 5 his 6 “unknown” defendants. 7 (9th Cir. 1999). 8 when the identity of the alleged defendants is not known before 9 filing the complaint. arrest. Generally, courts do not favor actions against Wakefield v. Thompson, 177 F.3d 1160, 1163 However, a plaintiff may sue unnamed defendants Gillespie v. Civiletti, 629 F.2d 637, 642 10 (9th Cir. 1980). 11 “the opportunity through discovery to identify unknown defendants, 12 unless 13 identities.” 14 learn the identity of unnamed defendants. it is If that is the case, a court gives the plaintiff clear Id. that discovery would not uncover the A plaintiff must diligently pursue discovery to 15 16 Here, however, the claims against the unnamed Defendants must 17 be dismissed because the Complaint fails to state what each of 18 these Defendants separately did in their individual capacity to 19 violate Plaintiff’s rights. 20 one unnamed Defendant, Plaintiff must identify each Doe Defendant 21 as “Doe No. 1, Doe No. 2,” etc., in the body of the Complaint and 22 show how each Defendant individually participated in the alleged 23 constitutional violations, whether or not Plaintiff knows the 24 Defendant’s name. 25 even the agency the individual Defendants work for would make it 26 impossible to learn the individual agents’ names through discovery, 27 much less to serve the Complaint. 28 his claims, he must make an effort to identify the agents’ names To state a claim against more than Furthermore, Plaintiff’s failure to identify 7 If Plaintiff wishes to pursue 1 or at the very least the agency they worked for, either by 2 consulting with his trial or appellate attorneys, by examining 3 records from his criminal proceedings, or by some other method. 4 Accordingly, the Complaint must be dismissed, with leave to amend. 5 6 2. Unnamed Supervisor 7 8 9 Government officials may not be held liable under Bivens simply because their subordinates engaged in unconstitutional 10 conduct. 11 a plaintiff names a supervisor as a defendant but does not allege 12 that the supervisor directly participated in the constitutional 13 violation, a “sufficient causal connection” to the violation may 14 be shown where the supervisor “set ‘in motion a series of acts by 15 others, or knowingly refused to terminate [such acts], which he 16 knew or reasonably should have known, would cause others to inflict 17 the constitutional injury.’” 18 903, 907 (9th Cir. 2008) (quoting Larez v. City of Los Angeles, 19 946 F.2d 630, 646 (9th Cir. 1991)); see also Preschooler II v. 20 Clark County Bd. of Trustees, 479 F.3d 1175, 1183 (9th Cir. 2007) 21 (a supervisor may be held accountable only “for his own culpable 22 action or inaction in the training, supervision, or control of his 23 subordinates, 24 deprivations of which the complaint is made, or for conduct that 25 showed 26 others”). 27 \\ 28 \\ a See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). for reckless his or Where Levine v. City of Alameda, 525 F.3d acquiescence callous in indifference 8 the to constitutional the rights of 1 Plaintiff attempts to sue “One Unknown Federal Task Force 2 Supervisor” for failure to train and supervise the three individual 3 agents who effected his arrest. 4 police training may serve as the basis for [civil rights] liability 5 only where the failure to train amounts to deliberate indifference 6 to the rights of persons with whom the police come into contact.” 7 City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989); see also 8 Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998) (to prevail 9 on a failure to train claim, the plaintiff must establish that the (Compl. at 1). “[I]nadequacy of 10 “failure to train amounted to deliberate indifference”). At the 11 same time, at the pleading stage, Plaintiff is not required to 12 allege a failure to train claim with a high degree of specificity. 13 See, e.g., Velasquez v. Senko, 643 F. Supp. 1172, 1179 (N.D. Cal. 14 1986) (“Plaintiffs are not privy to the training and supervision 15 of INS and Border Patrol agents, and before discovery cannot be 16 expected to plead that on a certain day, at a certain time, 17 supervisor X failed to adequately train or supervise agent Y. 18 is sufficient for purposes of Rule 8 that plaintiffs allege conduct 19 from which a reasonable inference may be drawn that these agents 20 did not receive proper training or supervision.”). It 21 22 Plaintiff’s conclusory failure to train allegation does not 23 even identify the 24 Defendants 25 Accordingly, the claim against the supervisor must be dismissed, 26 with leave to amend. 27 of Monterey, 89 F. Supp. 2d 1144, 1148 (N.D. Cal. 2000) (dismissing 28 failure to train claim for failing to plead defendant’s deliberate should kind of training have received, that but Plaintiff presumably believes did not. See Hell’s Angels Motorcycle Corp. v. Cnty. 9 1 indifference); Harris v. Business, Trasp. and Housing Agency, 2007 2 WL 1574553, at *5 (N.D. Cal. May 30, 2007) (although “a plaintiff 3 need not show with great specificity how each defendant contributed 4 to the violation of his civil rights,” a bare allegation that the 5 defendants were responsible for supervising their employees was 6 insufficient to state a failure to train and supervise claim); 7 Meyer v. San Francisco Pub. Library, 2017 WL 3453364, at *5 (N.D. 8 Cal. Aug. 11, 2017) (“purely conclusory” allegations that defendant 9 failed to train employees “are not sufficient to state a claim”). 10 Accordingly, the Complaint must be dismissed, with leave to amend. 11 12 13 C. Some Of Plaintiff’s Claims May Be Barred By The Doctrine In Heck v. Humphrey 14 15 In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court 16 held that a civil rights complaint for money damages must be 17 dismissed if judgment in favor of the plaintiff would undermine 18 the validity of his conviction or sentence. 19 Heck Court explained that: Id. at 486-87. 20 21 to recover damages for an allegedly unconstitutional 22 conviction or imprisonment, or for other harm caused by 23 actions whose unlawfulness would render a conviction or 24 sentence invalid, a § 1983 plaintiff must prove that the 25 conviction 26 appeal, expunged by executive order, declared invalid by 27 a state tribunal authorized to make such determination, 28 or called into question by a federal court’s issuance of or sentence has 10 been reversed on direct The 1 a writ of habeas corpus. A claim for a sentence that 2 has not been so invalidated is not cognizable under 3 § 1983. 4 5 Id.; see also Matz v. Klotka, 769 F.3d 517, 530 (7th Cir. 2014) 6 (Heck barred Fifth Amendment claim alleging coerced confession 7 where “the judge relied heavily on [plaintiff’s] confession” at 8 sentencing). 9 United States v. Crowell, 374 F.3d 790, 795 (9th Cir. 2004). The Heck doctrine applies to Bivens actions. See 10 11 However, the Heck Court also explained that if a “plaintiff’s 12 action, even if successful, will not demonstrate the invalidity of 13 any outstanding criminal judgment against the plaintiff, the action 14 should be allowed to proceed, in the absence of some other bar to 15 the 16 Accordingly, the Ninth Circuit has found in a case where the 17 plaintiff’s assault conviction had not been overturned that while 18 the Heck doctrine barred a false arrest claim requiring a finding 19 that there was no probable cause to arrest the plaintiff, Heck 20 would not preclude the same plaintiff’s excessive force claim 21 “[b]ecause a successful section 1983 action for excessive force 22 would not necessarily imply the invalidity of [plaintiff’s] arrest 23 or conviction[.]” 24 1996) (per curiam). suit.” Heck, 512 U.S. at 487 (footnotes omitted). Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 25 26 Fourth Amendment claims alleging illegal search and seizure 27 “are not entirely exempt from the Heck analysis.” 28 Whitaker v. Garcetti, 486 F.3d 572, 583-84 (9th Cir. 2007) (claim 11 See, e.g., 1 alleging that defendants falsified warrant application was Heck- 2 barred 3 evidence upon which [plaintiff’s] criminal charges and convictions 4 were based”); Szajer v. City of Los Angeles, 632 F.3d 607, 611 (9th 5 Cir. 2011) (Heck barred claim alleging that there was no probable 6 cause to search for the illegal weapons used to secure plaintiffs’ 7 conviction). 8 Fourth Amendment claim that would not be barred by the 9 doctrine: because it challenged the “search and seizure of the Nonetheless, the Heck court offered an example of a 10 11 For example, a suit for damages attributable to an 12 allegedly 13 challenged search produced evidence that was introduced 14 in a state criminal trial resulting in the § 1983 15 plaintiff’s still-outstanding conviction. Because of 16 doctrines inevitable 17 discovery, see Murray v. United States, 487 U.S. 533, 18 539 (1988), and especially harmless error, see Arizona 19 v. Fulminante, 499 U.S. 279, 307–308 (1991), such a 20 § 1983 action, even if successful, would not necessarily 21 imply that the plaintiff’s conviction was unlawful. 22 order to recover compensatory damages, however, the 23 § 1983 plaintiff must prove not only that the search was 24 unlawful, but that it caused him actual, compensable 25 injury, see Memphis Community School Dist. v. Stachura, 26 477 U.S. 299, 308 (1986), which, we hold today, does not unreasonable like search independent 27 28 12 may source lie even and if the In Heck 1 encompass the “injury” of being convicted and imprisoned 2 (until his conviction has been overturned). 3 4 Heck, 512 U.S. at 487 n.7 (parallel reporter citations omitted). 5 6 Plaintiff alleges that federal agents entered his residence 7 without a warrant or permission, conducted an unlawful search of 8 the premises, and improperly arrested him. 9 bases of Plaintiff’s claims are not entirely clear. The specific scope and However, to 10 the extent the alleged search and seizure resulted in any criminal 11 proceedings against Plaintiff, the Heck doctrine may bar civil 12 rights claims that, if successful, would invalidate his criminal 13 convictions. 14 whether 15 Furthermore, for any Fourth Amendment claims not subject to a Heck 16 bar, Plaintiff must show compensable harm to him personally apart 17 from the fact of his incarceration. 18 dismissed, with leave to amend. the In any amended complaint, Plaintiff should consider alleged claims are barred by the Heck doctrine. Accordingly, these claims are 19 20 D. Plaintiff Fails To State An Eighth Amendment Claim 21 22 Plaintiff claims, without further explanation, that 23 Defendants’ use of “excessive force” violated his Eighth Amendment 24 right to be free from cruel and unusual punishment. 25 1). 26 the 27 traditionally associated with criminal prosecutions.’” 28 Connor, 490 U.S. 386, 393 n.6 (quoting Ingraham v. Wright, 430 U.S. (Compl. at However, the Eighth Amendment’s protections apply “‘only after State has complied with 13 the constitutional guarantees Graham v. 1 651, 671 n.40 (1977)); see also P.B. v. Koch, 96 F.3d 1298, 1303 2 n.4 (9th Cir. 1996) (“[A] convicted prisoner is protected from 3 excessive 4 arrested or investigated is protected from excessive force by the 5 Fourth Amendment.”). 6 the time of the alleged incident, his excessive force claim arises 7 under the Fourth Amendment, not the Eighth Amendment. 8 the Complaint must be dismissed, with leave to amend. force by the Eighth Amendment and a citizen being Because Plaintiff had not been convicted at Accordingly, 9 10 E. Plaintiff Fails To State An Excessive Force Claim 11 12 “[A]ll claims that law enforcement officers have used 13 excessive force . . . in the course of an arrest, investigatory 14 stop, or other seizure of a free citizen should be analyzed under 15 the Fourth Amendment and its reasonableness standard.” 16 County of San Diego, 629 F.3d 1127, 1133 (9th Cir. 2011). 17 a Fourth Amendment excessive force claim, a plaintiff must allege 18 both that he was “seized” and that the seizure was effected with 19 unreasonable force. 20 599 (1989) (“‘Seizure’ alone is not enough for § 1983 liability; 21 the seizure must be ‘unreasonable.’”). Hooper v. To state See Brower v. Cnty. of Inyo, 489 U.S. 593, 22 23 “Force is excessive when it is greater than is reasonable 24 under the circumstances.” 25 Cir. 2002) (citing Graham, 490 U.S. at 395). 26 instructs 27 determined solely by the presence or absence of physical contact: 28 \\ that the Santos v. Gates, 287 F.3d 846, 854 (9th reasonableness 14 of the The Ninth Circuit force used is not 1 \\ 2 The police arsenal includes many different types of 3 force, which intrude upon the Fourth Amendment rights of 4 the individual to varying degrees. 5 that “physical blows or cuts” often constitute a more 6 substantial application of force than categories of 7 force that do not involve a physical impact to the body. 8 Forrester v. City of San Diego, 25 F.3d 804, 807 (9th 9 Cir. 1994) (holding that the use of a progressive pain 10 compliance device that inflicted temporary discomfort on 11 the arrestees was not a substantial intrusion). 12 absence 13 however, 14 unreasonable even without physical blows or injuries.” 15 Bryan v. MacPherson, 630 F.3d 805, 824 (9th Cir. 2010); 16 see also Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005) 17 (en 18 unreasonable); Robinson v. Solano County, 278 F.3d 1007 19 (9th Cir. 2002) (en banc) (pointing a weapon at unarmed 20 and non-threatening individual was unreasonable). of banc) concussive and “[w]e (pointing force have a is held weapon We have recognized not that at The determinative, force unarmed can child be was 21 22 Nelson v. City of Davis, 685 F.3d 867, 878 (9th Cir. 2012); see 23 also Headwaters Forest Def. v. County of Humboldt, 240 F.3d 1185, 24 1199 (9th Cir. 2001) (“Although the absence of deadly force or 25 physical blows can mean that a[n] intrusion on an arrestee is ‘less 26 significant than most claims of force,’ that fact alone is not 27 dispositive in excessive force cases.”) (citation omitted); Tekle 28 v. United States, 511 F.3d 839, 845 (9th Cir. 2007) (“[T]he pointing 15 1 2 of a gun at someone may constitute excessive force, even if it does 3 not cause physical injury.”). 4 5 The Complaint is not always clear as to whether the excessive 6 force allegedly applied by Defendants was directed at Plaintiff or 7 at others who are not parties to this action, or whether it included 8 any degree of physical harm. 9 must assert his or her own legal rights and interests, and cannot 10 rest a claim to relief on the legal rights or interests of third 11 parties.’” 12 560 F.3d 1042, 1050 (9th Cir. 2009) (quoting Powers v. Ohio, 499 13 U.S. 400, 410 (1991)). 14 se. 15 and may not be extended to allow them to appear as attorneys on 16 behalf of others. 17 77 (9th Cir. 1997). 18 with leave to amend. 19 make clear what acts constituted excessive force, which specific 20 Defendants are responsible, and how the application of excessive 21 force harmed him personally. 22 Houston, 14 F. Supp. 3d 842, 862 (S.D. Tex. 2014) (parents who 23 witnessed officers taser their son with guns drawn failed to state 24 a claim for excessive force where they did not “allege[] facts 25 capable 26 [them]”). 27 \\ 28 \\ “‘In the ordinary course, a litigant See Martin v. California Dep’t of Veterans Affairs, Additionally, Plaintiff is proceeding pro The right of non-attorneys to represent themselves is personal of Johns v. County of San Diego, 114 F.3d 874, 876- showing Accordingly, the Complaint must be dismissed, In any amended complaint, Plaintiff should that the See, e.g., Khansari v. City of police 16 actions were directed at 1 2 F. Plaintiff Fails To State A Claim Based On His Coerced Confession 3 4 Plaintiff summarily alleges that the agents obtained a 5 confession through coercion in violation of his Fifth and Sixth 6 Amendment rights. 7 a civil rights claim alleging that law enforcement coerced a 8 confession which was then used in a criminal proceeding arises 9 under the Fifth Amendment’s protection against compulsory self- (Compl. at 4). The Ninth Circuit instructs that 10 incrimination. See Hall v. City of Los Angeles, 697 F.3d 1059, 11 1068 (9th Cir. 2012) (“Using a coerced confession against the 12 accused in a criminal proceeding implicates this Fifth Amendment 13 privilege.”); see also Crowe v. Cnty. of San Diego, 608 F.3d 406, 14 430-31 (9th Cir. 2010) (police officers who obtained confession 15 through coercion were a “proximate cause” of the confession’s 16 introduction 17 defendants 18 violation). 19 only if it is admitted at trial, but also “when it has been relied 20 upon to file formal charges against the declarant, to determine 21 judicially that the prosecution may proceed, and to determine 22 pretrial custody status.” 23 925 (9th Cir. 2009). in in criminal civil proceedings rights action and thus alleging were Fifth proper Amendment A coerced statement is “used” in a criminal case not Stoot v. City of Everett, 582 F.3d 910, 24 25 The Complaint alleges that the agents “coerced” his 26 confession, but it does not identify whether one or all of the 27 agents participated in the coercion. 28 17 The Complaint also does not 1 plead that the confession was ever used, only that it was obtained. 2 Accordingly, the Complaint must be dismissed, with leave to amend. 3 4 G. The Complaint Violates Federal Rule of Civil Procedure 8 5 6 Federal Rule of Civil Procedure 8(a)(2) requires that a 7 complaint contain “‘a short and plain statement of the claim 8 showing that the pleader is entitled to relief,’ in order to ‘give 9 the defendant fair notice of what the . . . claim is and the 10 grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 11 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)). 12 may be violated when a pleading “says too little,” and “when a 13 pleading says too much.” 14 Cir. 2013) (emphasis in original). Rule 8 Knapp v. Hogan, 738 F.3d 1106, 1108 (9th 15 16 The Complaint violates Rule 8 because Plaintiff does not 17 clearly identify the nature of each of the legal claims he is 18 bringing, the specific facts giving rise to each claim, or the 19 specific 20 brought. 21 respond to the Complaint. 22 Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (a 23 complaint violates Rule 8 if a defendant would have difficulty 24 understanding and responding to the complaint). 25 Complaint is dismissed, with leave to amend. 26 \\ 27 \\ 28 \\ Defendant or Defendants against whom each claim is Without more specific information, Defendants cannot See Cafasso, U.S. ex rel. v. Gen. 18 Accordingly, the 1 V. 2 CONCLUSION 3 4 For the reasons stated above, the Complaint is dismissed with 5 leave to amend. If Plaintiff still wishes to pursue this action, 6 he is granted thirty (30) days from the date of this Memorandum 7 and Order within which to file a First Amended Complaint. 8 amended complaint, the Plaintiff shall cure the defects described 9 above. Plaintiff shall not include new defendants In any or new 10 allegations that are not reasonably related to the claims asserted 11 in the original complaint. 12 shall be complete in itself and shall bear both the designation 13 “First Amended Complaint” and the case number assigned to this 14 action. 15 complaint in this matter. The First Amended Complaint, if any, It shall not refer in any manner to any previously filed 16 17 In any amended complaint, Plaintiff should confine his 18 allegations to those operative facts supporting each of his claims. 19 Plaintiff 20 Procedure 8(a), all that is required is a “short and plain statement 21 of the claim showing that the pleader is entitled to relief.” 22 Plaintiff is strongly encouraged to utilize the standard civil 23 rights complaint form when filing any amended complaint, a copy of 24 which is attached. 25 identify the nature of each separate legal claim and make clear 26 what specific factual allegations support each of his separate 27 claims. 28 concise and to omit irrelevant details. is advised that pursuant to Federal Rule of Civil In any amended complaint, Plaintiff should Plaintiff is strongly encouraged to keep his statements 19 It is not necessary for 1 Plaintiff to cite case law, include legal argument, or attach 2 exhibits at this stage of the litigation. Plaintiff is also advised 3 to omit any claims for which he lacks a sufficient factual basis. 4 5 Plaintiff is explicitly cautioned that failure to timely file 6 a First Amended Complaint or failure to correct the deficiencies 7 described above, will result in a recommendation that this action 8 be dismissed with prejudice for failure to prosecute and obey court 9 orders pursuant to Federal Rule of Civil Procedure 41(b). 10 Plaintiff is further advised that if he no longer wishes to pursue 11 this action, he may voluntarily dismiss it by filing a Notice of 12 Dismissal in accordance 13 41(a)(1). A form Notice of Dismissal is attached for Plaintiff’s 14 convenience. with Federal Rule of Civil Procedure 15 16 DATED: March 15, 2018 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 17 18 19 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS, WESTLAW OR 20 ANY OTHER LEGAL DATABASE. 21 22 23 24 25 26 27 28 20
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