David Chacon v. Ontario Police Department et al, No. 5:2017cv01520 - Document 12 (C.D. Cal. 2017)
Court Description: MEMORANDUM DECISION AND ORDER: (1) DISMISSING COMPLAINT WITH LEAVE TO AMEND, AND (2) DENYING WITHOUT PREJUDICE PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL by Magistrate Judge Suzanne H. Segal. The Complaint is DISMISSED with leave to amend. The request for appointment of counsel is DENIED without prejudice. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order in which to file a First Amended Complaint. Plaintiff is fu rther advised 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 Plaintiffs convenience. (See document for further details). (Attachments: # 1 Civil Rights Complaint Form, # 2 Notice of Dismissal Form) (mr)
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David Chacon v. Ontario Police Department et al Doc. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVID CHACON, Case No. EDCV 17-1520 VBF (SS) Plaintiff, 12 13 14 MEMORANDUM DECISION AND ORDER: v. (1) DISMISSING COMPLAINT WITH ONTARIO POLICE DEPARTMENT, et al., 15 LEAVE TO AMEND, AND (2) DENYING WITHOUT PREJUDICE Defendants. 16 PLAINTIFF’S REQUEST FOR 17 APPOINTMENT OF COUNSEL 18 19 I. 20 INTRODUCTION 21 22 David Chacon (“Plaintiff”), a California state prisoner 23 proceeding pro se, has filed a complaint alleging violations of 24 his civil rights pursuant to 42 U.S.C. § 1983. 25 No. 1). 26 screening of complaints in civil actions where a prisoner seeks 27 redress 28 § 1915A(a). (“Complaint,” Dkt. Congress mandates that district courts perform an initial from a governmental entity or employee. 28 U.S.C. This Court may dismiss such a complaint, or any Dockets.Justia.com 1 portion, before service of process if it concludes that the 2 complaint (1) is frivolous or malicious, (2) fails to state a claim 3 upon which relief can be granted, or (3) seeks monetary relief from 4 a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1- 5 2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 6 2000) (en banc). 7 DISMISSED with leave to amend.1 Plaintiff’s Request for Appointment 8 of Counsel in the prayer for relief is DENIED without prejudice. For the reasons stated below, the Complaint is 9 10 II. 11 ALLEGATIONS OF THE COMPLAINT 12 13 Plaintiff sues (1) the Ontario Police Department and four of 14 its employees, Patrol Officers (2) Matthew E. Zick, (3) Edward 15 Flores, 16 Renstrom. 17 whether the individual Defendants are sued in their individual or 18 official capacities. and (4) Brennan Falconieri, (Complaint at 2). and (5) Sergeant James The Complaint does not indicate 19 20 Plaintiff alleges that upon exiting his vehicle during a 21 routine traffic stop on November 25, 2016, he was tased twice by 22 Officer Zick, who failed to tell Plaintiff what Officer Zick wanted 23 him to do. 24 a half hours later at the Chino Medical Center. 25 was “extremely battered” from the encounter with police and had a (Id. at 3). Plaintiff blacked out and awoke three and (Id.). Plaintiff 26 27 28 Magistrate judges may dismiss a complaint with leave to amend without approval of the district judge. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 1 2 1 broken left wrist. (Id.). Upon his release from the hospital, 2 Plaintiff was booked in the West Valley Detention Center in San 3 Bernardino County on charges of “felony evading” and “obstruction 4 of justice.” (Id.). 5 6 Zick testified at Plaintiff’s preliminary hearing that he 7 tased Plaintiff approximately four times and struck him twelve 8 times with his baton. 9 further testified that Plaintiff was “unconscious and unresponsive” (Id.). (Id.). According to the complaint, Zick 10 during the beating. Plaintiff claims that in addition to 11 a broken wrist, he suffered permanent nerve damage in his neck and 12 continues to have mobility issues “as a result of denial of therapy 13 and treatment.” (Id.). 14 15 The Complaint raises presumably claims for under excessive the Fourth force Eighth 16 Amendments, 17 indifference to serious medical needs. 18 “monetary damages,” “medical care/treatment for life,” and an 19 injunction relieving all of the officers who were involved in the 20 incident of their duties and subjecting them to criminal sanctions. 21 (Id. at 6). 22 and that leave be granted permitting him to amend his Complaint 23 following the appointment of counsel. (Id.). and and deliberate Plaintiff seeks Plaintiff further requests that counsel be appointed, 24 25 26 27 28 3 (Id.). 1 III. 2 DISCUSSION 3 4 Under 28 U.S.C. section 1915A(b), the Court must dismiss 5 Plaintiff’s Complaint due to multiple pleading defects. 6 the Court must grant a pro se litigant leave to amend his defective 7 complaint unless “it is absolutely clear that the deficiencies of 8 the complaint could not be cured by amendment.” 9 698 F.3d 1202, 1212 (9th Cir. 2012) However, Akhtar v. Mesa, (citation and 10 quotation marks omitted). 11 internal Accordingly, for the reasons stated below, the Complaint is DISMISSED with leave to amend. 12 13 A. The Ontario Police Department Is An Improper Defendant 14 15 Plaintiff purports to sue the Ontario Police Department. 16 (Complaint at 2). 17 must 18 Constitution or created by federal statute, (2) proximately caused 19 (3) by conduct of a ‘person’ (4) acting under color of state law.” 20 Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). 21 a police department is not a “person” for the purposes of a section 22 1983 action. 23 (police narcotics task force not a “person” or entity subject to 24 suit under section 1983); United States v. Kama, 394 F.3d 1236, 25 1239 (9th Cir. 2005) (Ferguson, J., concurring) (local government 26 departments and bureaus are generally not considered “persons” 27 within the meaning of section 1983). plead: “(1) To gain relief under section 1983, a plaintiff a violation of rights protected by the However, See Hervey v. Estes, 65 F.3d 784, 791 (9th Cir. 1995) 28 4 Accordingly, the Ontario 1 Police Department is not a proper defendant in this action, and 2 Plaintiff’s claims against the Department must be dismissed. 3 4 B. 5 Plaintiff Fails To State A Claim Against The City Of Ontario Or San Bernardino County 6 7 While a department, agency or unit of a local government is 8 an improper defendant in a section 1983 action, there is “no 9 constitutional impediment to municipal liability” under the Civil 10 Rights Act. 11 436 12 Cincinnati, 13 analysis of municipal liability to counties). 14 government may not be held responsible for the acts of its employees 15 simply because it employed the person or persons who caused the 16 plaintiff harm. Monell, 436 U.S. at 691. To assert a valid section 17 1983 claim against a city or county, a plaintiff must show not only 18 a deprivation of a constitutional right, but also that the city or 19 county had a policy, custom or practice that was the “moving force” 20 behind the constitutional violation. 21 Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008). 22 a “‘direct causal link between a [city or county] policy or custom 23 and the alleged constitutional deprivation.’” 24 of Canton v. Harris, 489 U.S. 378, 385 (1989)). U.S. Monell v. Dep’t of Soc. Servs. of City of New York, 658, 475 690 n.54 U.S. (1978); 469, 483 see n.12 also Pembaur (1986) v. (applying City of Monell’s However, a local Villegas v. Gilroy Garlic There must be Id. (quoting City 25 26 “Proof of a single incident of unconstitutional activity is 27 not sufficient to impose liability under Monell, unless proof of 28 the incident includes proof that it was caused by an existing, 5 1 unconstitutional municipal policy, which policy can be attributed 2 to a municipal policymaker.” 3 823–24 (1985); see also Gant v. Cnty. of Los Angeles, 772 F.3d 608, 4 618 (9th Cir. 2014) (quoting same). 5 “founded upon practices of sufficient duration, frequency and 6 consistency that the conduct has become a traditional method of 7 carrying out policy.” 8 1996). Okla. City v. Tuttle, 471 U.S. 808, Rather, liability must be Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 9 10 It is unclear whether Plaintiff intended to sue the City of 11 Ontario for the policies and practices of the Ontario Police 12 Department, the County of San Bernardino for the policies and 13 practices of the San Bernardino County Sheriff’s Department (which 14 operates the West Valley Detention Center), or both, or neither. 15 Even if Plaintiff had identified a proper governmental Defendant, 16 he does not allege a policy, custom or practice of either the City 17 or the County that led to his alleged injuries. 18 Plaintiff fails to state a valid Monell claim against either the 19 City 20 Complaint must be dismissed, with leave to amend. of Ontario or San Bernardino County. As a result, Accordingly, the 21 22 23 C. Plaintiff Fails To State A Claim Against Flores, Falconieri And Renstrom 24 25 The Complaint names Officers Flores and Falconieri (Complaint at 2). and 26 Sergeant Renstrom as Defendants. 27 Complaint does not contain a single allegation explaining what any 28 of these officers did to cause harm to Plaintiff. 6 However, the 1 To allege a civil rights violation against an individual 2 defendant, 3 participation 4 supervisory personnel, some sufficient causal connection between 5 the official’s conduct and the alleged constitutional violation. 6 See 7 Plaintiff must allege specific facts showing what each individual 8 Defendant did to violate his constitutional rights. 9 v. Iqbal, 556 U.S. 662, 676 (2009) (holding that a complaint must Starr a v. plaintiff in the Baca, specific must show alleged 652 facts F.3d 1202, or, in 1205-06 plausible (9th include 11 Plaintiff’s 12 Defendants claim). the personal case Cir. of 2011). See Ashcroft Renstrom must be dismissed, with leave to amend. against a violation direct, 10 claims for either Flores, Accordingly, Falconieri and 13 14 15 D. Plaintiff Fails To State A Claim For Deliberate Indifference To Serious Medical Needs 16 17 Plaintiff claims that he suffered permanent nerve damage in 18 his neck and continues to have mobility issues “as a result of 19 denial of therapy and treatment.” 20 does not identify which specific Defendants were responsible for 21 his medical care or what exactly those Defendants did or did not 22 do, it is possible that Plaintiff may be attempting to state a 23 claim based on his allegedly inadequate medical care. 24 the inadequate treatment rises to the level of a constitutional 25 violation, a prisoner must demonstrate that he had a “serious 26 medical 27 indifferent.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); 28 see also West v. Atkins, 487 U.S. 42, 49 (1988). need” to which the 7 (Complaint at 3). defendant was Although he To show that “deliberately 1 To establish a “serious medical need,” a plaintiff must 2 demonstrate that “failure to treat a prisoner’s condition could 3 result in further significant injury or the ‘unnecessary and wanton 4 infliction of pain.’” 5 To establish “deliberate indifference” to a serious medical need, 6 a plaintiff must demonstrate: “(a) a purposeful act or failure to 7 respond to a prisoner’s pain or possible medical need, and (b) harm 8 caused by the indifference.” 9 appear when prison officials deny, delay or intentionally interfere 10 with medical treatment, or it may be shown by the way in which 11 prison 12 omitted). 13 serious risk of harm to Plaintiff and consciously disregarded that 14 risk. physicians Jett, 439 F.3d at 1096 (citation omitted). provide (Id.). Deliberate indifference “may medical care.” (Id.) (citations The defendant must have been subjectively aware of a See Farmer v. Brennan, 511 U.S. 825, 828 (1994). 15 16 Plaintiff alleges that he has continuing pain in his neck and 17 mobility issues but did not describe any injuries to his neck, legs 18 or back that occurred during the incident. 19 not identify which Defendant(s) knew of these injuries and what 20 exactly they did or did not do despite that knowledge that caused 21 Plaintiff harm. The Complaint does not state a claim for deliberate 22 indifference to serious medical needs. 23 must be dismissed, with leave to amend. Furthermore, he does Accordingly, the Complaint 24 25 E. The Complaint Violates Federal Rule of Civil Procedure 8 26 27 Federal Rule of Civil Procedure 8(a)(2) requires that a 28 complaint contain “‘a short and plain statement of the claim 8 1 showing that the pleader is entitled to relief,’ in order to ‘give 2 the defendant fair notice of what the . . . claim is and the 3 grounds upon which it rests.’” 4 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)). 5 may be violated when a pleading “says too little,” and “when a 6 pleading says too much.” 7 Cir. 2013) (emphasis in original). Bell Atlantic Corp. v. Twombly, Rule 8 Knapp v. Hogan, 738 F.3d 1106, 1108 (9th 8 9 Here, the Complaint violates Rule 8 because Plaintiff does 10 not clearly identify the nature of each of the legal claims he is 11 bringing, the specific facts giving rise to each claim, or the 12 specific 13 brought. 14 respond to the Complaint. 15 Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (a 16 complaint violates Rule 8 if a defendant would have difficulty 17 understanding and responding to the complaint). 18 Plaintiff’s request that the Court take “judicial notice” of Case 19 No. 16 CR-066544 in the Superior Court of California, Rancho 20 Cucamonga District, is confusing and unnecessary. 21 3). 22 or what the proceedings involved. 23 testimony or part of the proceedings of which he wishes the Court 24 to 25 Accordingly, the Complaint must be 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. Furthermore, (Complaint at Plaintiff does not state who the Defendant was in that case take notice, or explain Nor does he identify the order, why 9 notice is relevant here. 1 F. It Is Unclear Whether Plaintiff Has “Effectively Exhausted” 2 His Administrative Remedies With Respect To His Deliberate 3 Indifference Claim 4 5 Plaintiff affirmatively states in the Complaint that he did 6 not file a grievance relating to his claims. 7 Plaintiff explains that he “was advised that if [he] filed [a] 8 complaint 9 further force and/or retaliation.” or [requested] sanctions[, he] (Complaint at 3). would be subject to (Id.). 10 11 The Prison Litigation Reform Act of 1995 (the “PLRA”), 42 12 U.S.C. § 1997e(a), requires a prisoner to exhaust all available 13 administrative remedies before suing over prison conditions in 14 federal court. 15 also 42 U.S.C. § 1997e(a) (“No action shall be brought . . . until 16 such administrative remedies as are available are exhausted.”). 17 “[F]ederal courts may not consider a prisoner’s civil rights claim 18 when a remedy was not sought first in an available administrative 19 grievance procedure.” 20 949, 954 (9th Cir. 2005). 21 all levels of the prison’s grievance process “as long as some 22 action can be ordered in response to the complaint,” Brown v. 23 Valoff, 422 F.3d 926, 934 (9th Cir. 2005), regardless of the 24 ultimate relief offered through such procedures. 25 at 741. Booth v. Churner, 532 U.S. 731, 733-34 (2001); see Panaro v. City of North Las Vegas, 432 F.3d A prisoner must pursue a remedy through 26 27 28 10 Booth, 532 U.S. 1 While exhaustion is normally a precondition to suit, the PLRA 2 does not require 3 administrative 4 Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010). 5 within an exception to the exhaustion requirement, “a prisoner must 6 show that he attempted to exhaust his administrative remedies but 7 was thwarted.” 8 747 F.3d 1162, 1172 (9th Cir. 2014) (administrative remedies may 9 be effectively exhaustion remedies “when ‘effectively circumstances unavailable.’” render Sapp v. Generally, to fall Sapp, 623 F.3d at 823-24); see also Albino v. Baca, unavailable where unobtainable, filing unduly a grievance prolonged, would be inadequate, or 10 “‘ineffective, 11 obviously futile’”) (quoting Hilao v. Estate of Marcos, 103 F.3d 12 767, 778 n.5 (9th Cir. 1996)). 13 14 “[T]he PLRA does not require that a prisoner’s federal court 15 complaint affirmatively plead exhaustion.” Nunez v. Duncan, 591 16 F.3d 1217, 1223-24 (9th Cir. 2010) (citing Jones v. Bock, 549 U.S. 17 199, 212-17 (2007)). 18 that requires the defendant, following service of the complaint, 19 to prove that “the prisoner did not use existing and generally 20 available administrative remedies.” Failure to exhaust is an affirmative defense Albino, 747 F.3d at 1172. 21 22 A prisoner-plaintiff is not required to exhaust administrative 23 remedies with respect to a claim that arresting officers used 24 excessive force against him prior to his incarceration. 25 Holston v. DeBranca, 2011 WL 666880, at *5 (E.D. Cal. Feb. 11, 26 2011) (citing cases); Perez v. Bell, 2012 WL 1532291, at *2 (D. 27 Ariz. May 1, 2012) (“[B]ecause the alleged excessive force occurred 28 during [plaintiff’s] arrest and prior to any incarceration, there 11 See 1 was no requirement to exhaust remedies [under the PLRA].”). 2 However, Plaintiff is cautioned that if he failed to avail himself 3 of the prison grievance process before filing this lawsuit for any 4 claims that involve events occurring after his incarceration, 5 Defendants may raise the failure to exhaust as an affirmative 6 defense and may seek dismissal of any unexhausted claims. 7 8 9 G. The Request For Appointment Of Counsel Is Denied Without Prejudice 10 11 Plaintiff asks the Court to appoint counsel because he is 12 indigent. (Complaint at 6). 13 no constitutional right to appointed counsel in a civil action, 14 including a civil rights action under section 1983. 15 Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 16 counsel is within “‘the sound discretion of the trial court and is 17 granted 18 Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004) 19 (quoting Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)). 20 When deciding whether exceptional circumstances exist, the court 21 must evaluate both “‘the likelihood of success on the merits [and] 22 the ability of the petitioner to articulate his claims pro se in 23 light of the complexity of the legal issues involved.’” 24 560 F.3d at 970 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 25 (9th Cir. 1986)). only in Plaintiff is advised that there is exceptional See Palmer v. The decision to appoint circumstances.’” Agyeman v. Palmer, 26 27 Plaintiff bears the burden of demonstrating the existence of 28 “exceptional circumstances” warranting the appointment of counsel. 12 1 Palmer, 560 F.3d at 970. 2 is 3 incarceration, including his limited legal knowledge, Plaintiff 4 fails to establish “exceptional circumstances” required for the 5 appointment of counsel as these conditions and limitations apply 6 to almost every inmate. 7 *3 8 prisoners, such as lack of legal education and limited law library 9 access, do not establish exceptional circumstances that would 10 warrant a request for voluntary assistance of counsel.”); Cardwell 11 v. Kettelhake, 2010 WL 3636267, at *1 (E.D. Cal. Sept. 14, 2010) 12 (plaintiff’s 13 difficulty responding to pleadings and understanding procedural 14 rules, and his limited access to the law library do not establish 15 “exceptional circumstances” warranting appointment of counsel as 16 they are “experience[s] common to many prisoners”). based (E.D. on his Cal. To the extent that Plaintiff’s request indigency July any other difficulties of his See Tilton v. Brown, 2013 WL 3804583, at 19, failure or to 2013) (“Circumstances complete high common school, his to most alleged 17 18 The Court believes that Plaintiff presently has the ability 19 to articulate his claims without the assistance of counsel. 20 Neither the facts nor the legal issues involved in this case appear 21 to be unusually complex. 22 himself therefore do not appear, at this stage of the litigation, 23 to pose an insurmountable obstacle to the pursuit of his claims. 24 See Palmer, 560 F.3d at 970 (trial court did not abuse discretion 25 in denying motion for appointment of counsel where inmate plaintiff 26 demonstrated an ability to represent himself at trial). Plaintiff’s challenges in representing 27 28 13 1 Accordingly, Plaintiff’s Motion for Appointment of Counsel is 2 DENIED WITHOUT PREJUDICE. Nothing in this Order is intended to 3 preclude Plaintiff from retaining counsel on his own. 4 5 IV. 6 CONCLUSION 7 8 9 10 For the reasons stated above, the Complaint is DISMISSED with leave to amend. The request for appointment of counsel is DENIED without prejudice. 11 12 If Plaintiff still wishes to pursue this action, he is granted 13 thirty (30) days from the date of this Memorandum and Order in 14 which to file a First Amended Complaint. 15 the Plaintiff shall cure the defects described above. 16 shall not include new defendants or new allegations that are not 17 reasonably related 18 Complaint. The First Amended Complaint, if any, shall be complete 19 in itself and shall bear both the designation “First Amended 20 Complaint” and the case number assigned to this action. 21 not refer in any manner to any previously filed complaint in this 22 matter. to the claims In any amended complaint, asserted in the Plaintiff original It shall 23 24 In any amended complaint, Plaintiff should confine his 25 allegations to those operative facts supporting each of his claims. 26 Plaintiff 27 Procedure 8(a), all that is required is a “short and plain statement 28 of the claim showing that the pleader is entitled to relief.” is advised that pursuant 14 to Federal Rule of Civil 1 Plaintiff is strongly encouraged to utilize the standard civil 2 rights complaint form when filing any amended complaint, a copy of 3 which is attached. 4 clearly identify the nature of each separate legal claim, the 5 Defendant or Defendants he believes are liable for each claim, and 6 the facts showing what each Defendant did to cause Plaintiff harm. 7 Plaintiff is strongly encouraged to keep his statements concise 8 and to omit irrelevant details. 9 to cite case law, include legal argument, or attach exhibits at In any amended complaint, Plaintiff should It is not necessary for Plaintiff 10 this stage of the litigation. Plaintiff is also advised to omit 11 any claims for which he lacks a sufficient factual basis. 12 13 Plaintiff is explicitly cautioned that failure to timely file 14 a First Amended Complaint, or failure to correct the deficiencies 15 described above, will result in a recommendation that this action 16 be dismissed with prejudice for failure to prosecute and obey court 17 orders 18 Plaintiff is further advised that if he no longer wishes to pursue 19 this action, he may 20 Dismissal in accordance 21 41(a)(1). A form Notice of Dismissal is attached for Plaintiff’s 22 convenience. pursuant to Federal Rule of Civil Procedure 41(b). voluntarily dismiss it by filing a Notice of with Federal Rule of Civil Procedure 23 24 DATED: December 11, 2017 25 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 26 27 28 15 1 NOTICE 2 3 THIS DECISION IS NOT INTENDED FOR PUBICATION IN LEXIS, WESTLAW OR 4 ANY OTHER LEGAL DATABASE. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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