-SMS Sanders v. Federal Bureau of Investigations, No. 1:2010cv02332 - Document 10 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this 9 Case be Dismissed with Prejudice signed by Magistrate Judge Sandra M. Snyder on 04/08/2011. Referred to Judge O'Neill; Objections to F&R due by 5/16/2011. (Flores, E)
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-SMS Sanders v. Federal Bureau of Investigations Doc. 10 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 GARY A. SANDERS, CASE NO. 1:10-cv-02332-LJO-SMS 11 Plaintiff, 12 FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL FOR FAILURE TO STATE A CLAIM v. 13 14 FEDERAL BUREAU OF INVESTIGATIONS, JOHN DOES 1 TO 8, 15 Defendants. (Doc. 9) 16 _____________________________/ 17 18 Plaintiff Gary A. Sanders, a state prisoner proceeding pro se and in forma pauperis, initially 19 filed this civil rights action on December 15, 2010, pursuant to Bivens v. Six Unknown Named 20 Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation 21 of civil rights by federal actors. On February 8, March 4, and March 28, 2011, this Court dismissed 22 Plaintiff's complaint for failure to state a claim, in each case granting Plaintiff leave to amend in 23 accordance with the Court's screening order. In each amendment, Plaintiff failed to amend in 24 accordance with the Court's order so that the Third Amended Complaint, filed April 6, 2011, fails to 25 state a claim upon which relief can be granted. Accordingly, this Court recommends that this case be 26 dismissed with prejudice for failure to state a claim. 27 /// 28 -1- Dockets.Justia.com 1 I. 2 Pleading Standards and Screening Requirement The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 8 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 9 claim upon which relief may be granted.” 28 U.S.C. § 915(e)(2)(B)(ii). 10 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 11 exceptions,” none of which applies here. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). 12 Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim showing 13 that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a). “Such a statement must simply give 14 the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” 15 Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but “[t]hreadbare 16 recitals of the elements of the cause of action, supported by mere conclusory statements, do not 17 suffice.” Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. 18 Twombly, 550 U.S. 544, 555 (2007). “Plaintiff must set forth sufficient factual matter accepted as 19 true, to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 20 U.S. at 555. While factual allegations are accepted as true, legal conclusions are not. Twombly, 550 21 U.S. at 555. 22 Although accepted as true, “[f]actual allegations must be [sufficient] to raise a right to relief 23 above the speculative level.” Id. at 555 (citations omitted). A plaintiff must set forth “the grounds 24 of his entitlement to relief,” which “requires more than labels and conclusions, and a formulaic 25 recitation of the elements of a cause of action.” Id. at 555-56 (internal quotation marks and citations 26 omitted). To adequately state a claim against a defendant, a plaintiff must set forth the legal and 27 factual basis for his claim. 28 /// -2- 1 II. Factual and Procedural Background 2 A. 3 Plaintiff best alleged the facts supporting his claims in his initial complaint. Plaintiff alleged Initial Complaint 4 he was arrested on December 23, 2009, by the Kern County Bureau of Investigations, which was 5 assisting the Kern County Violent Crime Task Force. Eight unidentified members of the FBI, who 6 were also members of the Task Force, kicked and beat Plaintiff, until he was unconscious and 7 bleeding from his nose. The assault fractured Plaintiff's back and crushed his skull and face. 8 Plaintiff's dentures were lost during the course of his arrest. 9 Following the assault, Plaintiff was hospitalized and underwent plastic surgery. He continues 10 to experience pain as a result of the assault and anticipates life-long medical issues attributable to his 11 injuries. 12 In its screening order dismissing the initial complaint, the Court noted various deficiencies 13 that precluded the complaint from stating a claim. It found Plaintiff unable to bring a Bivens action 14 against federal agencies such as the Federal Bureau of Investigation, which was initially named as a 15 Defendant, and directed Plaintiff to add as defendants law enforcement personnel associated with the 16 "Kern County Violent Crimes Gang task force" or other law enforcement agencies to correspond to 17 facts suggesting that such persons were part of the alleged assault incident to Plaintiff's arrest. The 18 Court discussed federal procedure regarding "John Doe" defendants, finding that the FBI agents 19 named as John Does would be readily identifiable through government records. 20 With regard to Plaintiff's claims of excessive force, the Court briefly discussed applicable law 21 under the Fourth Amendment to the U.S. Constitution and directed Plaintiff to allege additional facts 22 tying each Defendant to the alleged assault in his amended complaint, if he decided to proceed with 23 amendment. The Court explained that, since the alleged assault did not occur in the course of 24 confinement, the Eighth Amendment to the Constitution was not applicable to Plaintiff's claims. 25 In its conclusion and order, the Court provided: 26 Plaintiff’s complaint fails to state a claim upon which relief may be granted. The Court will provide Plaintiff with the opportunity to file an amended complaint curing the deficiencies identified by the Court in this order. Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 27 28 -3- 1 2 3 4 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each named Defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights. Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). Plaintiff should focus on identifying his legal claims and setting forth, as briefly but specifically as possible, the facts linking the defendants he names to the violation of his rights. 5 6 7 8 Finally, Plaintiff is advised that an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), aff’d, 525 U.S. 299 (1999); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be “complete in itself without reference to the prior or superceded pleading,” Local Rule 15-220. “All causes of action alleged in an original complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567; accord Forsyth, 114 F.3d at 1474. 9 B. First Amended Complaint 10 Despite the Court's warning that amended complaints supersede all prior complaints, when 11 Plaintiff filed his First Amended Complaint on March 4, 2011, he omitted the well-pleaded facts that 12 he had originally alleged. In its screening order, the Court advised Plaintiff that, if he elected to 13 again amend his complaint, as the order permitted him to do, he should restore the facts setting forth 14 the nature and extent of his injuries as they related to his Fourth Amendment claim of excessive 15 force. The Court again directed Plaintiff to remove the F.B.I. as a defendant since no cause of action 16 under Bivens exists against federal agencies and to delineate his John Doe defendants more 17 specifically. 18 The Court's conclusion repeated the advisory language used in its first order and indicated 19 that Plaintiff would be permitted "one additional opportunity to file an amended complaint curing the 20 deficiencies identified by the Court." 21 C. Second Amended Complaint 22 Plaintiff again filed an amended complaint on March 21, 2011. Although the complaint was 23 substantially changed and barely cognizable, it mistakenly treated Plaintiff's excessive force claim as 24 arising under the Eighth Amendment to the U.S. Constitution. Accordingly, the Court dismissed the 25 second amended complaint for failure to state a claim, encouraging Plaintiff to submit a third 26 amended complaint that was unchanged from the second amended complaint except for references to 27 his claim's arising under the Eighth Amendment being amended to reflect that they were made under 28 -4- 1 the Fourth Amendment. 2 D. 3 On April 6, 2011, Plaintiff filed a third amended complaint that had been completely revised 4 from the second amended complaint. The complaint neither included the detailed factual allegations 5 of the original complaint nor appended the incident reports that supplemented Plaintiff's factual 6 allegations in the second amended complaint. The nature of the claim was recast to allege 7 wrongdoing only by Defendant John Doe Sherman, who allegedly ordered an attack incident to 8 Plaintiff's arrest and refused to provide Plaintiff with medical assistance following the arrest. The 9 statement of claim, set forth in a single brief paragraph was replete with legal conclusions and Third Amended Complaint 10 omitted numerous elements essential to a claim of excessive force incident to an arrest in violation of 11 the Fourth Amendment. 12 C. 13 Plaintiff contends that the sole remaining Defendant violated his rights by ordering the use of 14 excessive force in the course of Plaintiff's arrest and by denying Plaintiff medical attention following 15 the assault. Under the Fourth Amendment, made applicable to the states by the Fourteenth 16 Amendment, people are to be secure against unreasonable searches and seizures. Maryland v. 17 Pringle, 540 U.S. 366, 369 (2003); Mapp v. Ohio, 367 U.S. 643 (1961). An officer may arrest a 18 person without a warrant only if there is probable cause to believe that the person has committed or 19 is committing an offense. Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). Each case is determined 20 on its specific facts and circumstances. Ornelas v. United States, 517 U.S. 690, 695-96 (1996). 21 Those facts and circumstances will determine the Fourth Amendment’s reach in a particular case. 22 Terry v. Ohio, 392 U.S. 1, 29 (1968). 23 Plaintiff's Claims -- Excessive Force A seizure occurs when the government ends a person’s freedom of movement by 24 intentionally applied means. Scott v. Harris, 550 U.S. 372, 381 (2007); Brower v. County of Inyo, 25 489 U.S. 593, 596-97 (1989). A claim of excessive force in the course of a seizure is properly 26 analyzed under the Fourth Amendment’s “objective reasonableness” standard. Graham v. Connor, 27 490 U.S. 386, 388 (1989). To evaluate a Fourth Amendment claim, this Court must consider 28 whether each Defendant’s actions were objectively reasonable in light of the facts of the arrest. -5- 1 Scott, 550 U.S. at 381. This means that the Court must consider whether the officer’s actions were 2 objectively reasonable in light of the facts and circumstances of the arrest, without regard to the 3 underlying intent or motivation. Graham, 490 U.S. at 387. Reasonableness of the type of force used 4 is evaluated from the perspective of an officer on the scene and must include an allowance for the 5 fact that police officers are often forced to make a split-second determination of the necessary 6 amount of force. Id. 7 In his third amended complaint, Plaintiff has not alleged sufficient specific facts to allow the 8 Court to understand the circumstance of the arrest and the specific facts relevant to assessing whether 9 the Defendants’ force was excessive. 10 IV. 11 Conclusion and Recommendation Despite multiple screenings and amendments, Plaintiff’s complaint fails to state a claim upon 12 which relief may be granted. In addition, the nature of Plaintiff's claims has changed substantially 13 from the initial complaint to the third amended complaint. Accordingly, the undersigned HEREBY 14 RECOMMENDS that this case be dismissed with prejudice. 15 These findings and recommendations are submitted to the Honorable Lawrence J. O'Neill, 16 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 17 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of 18 California. Within thirty (30) days after being served with a copy, Plaintiff may file written 19 objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s 20 Findings and Recommendations.” The Court will then review the Magistrate Judge’s ruling pursuant 21 to 28 U.S.C. § 636(b)(1)(C). Plaintiff advised that failure to file objections within the specified time 22 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 23 1991). 24 IT IS SO ORDERED. 25 Dated: icido3 April 8, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 26 27 28 -6-