Solis v. County of Stanislaus et al, No. 1:2014cv00937 - Document 15 (E.D. Cal. 2015)

Court Description: ORDER signed by Senior Judge William B. Shubb on 10/26/2015 ADOPTING 13 Findings and Recommendations; ORDERING that this action proceed on 11 Third Amended Complaint against Defendants Griebel and Quiroz, in their individual capacities, for exces sive force in violation of the Fourth Amendment and against Defendants Niewenhuis, King and Albonetti, in their individual capacities, for failure to intercede; DISMISSING the plaintiff's claims against said defendants in their official capacities; GRANTING the plaintiff thirty days to file a Fourth Amended Complaint joining the City of Ceres as a defendant. (Michel, G.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF IDAHO 10 ----oo0oo---- 11 12 JAVIER SOLIS, Plaintiff, 13 14 15 16 17 18 19 20 21 22 23 CIV. NO. 1:14-937 WBS BAM v. CITY OF CERES POLICE DEPARTMENT; OFFICER GRIEBEL, (ID NUMBER 363) individually and in his official capacity, OFFICER QUIROZ, (ID NUMBER 656) individually and in his official capacity, OFFICER NIEWENHUIS individually and in his official capacity, OFFICER KING individually and in his official capacity, OFFICER ALBONETTI individually and in his official capacity, Defendants. ----oo0oo---- 24 25 ORDER RE: FINDINGS AND RECOMMENDATIONS Plaintiff Javier Solis filed this pro se action under 26 42 U.S.C. § 1983 based on alleged excessive force used against 27 him on December 28, 2012. 28 forma pauperis, the assigned magistrate judge screened his Because plaintiff is proceeding in 1 1 complaint pursuant to 28 U.S.C. § 1915(e)(2). 2 judge recommended that plaintiff be able to proceed with the 3 claims against the individual officers, but that the claims under 4 Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658 5 (1978), should be dismissed without leave to amend. 6 13.) 7 recommendation that his Monell claim be dismissed. 8 14.) The magistrate (Docket No. Plaintiff filed timely objections to the magistrate judge’s (Docket No. 9 Because § 1983 does not provide for vicarious 10 liability, a municipality can be liable only “when execution of a 11 government’s policy or custom, whether made by its lawmakers or 12 by those whose edicts or acts may fairly be said to represent 13 official policy, inflicts the injury . . . .” 14 at 693. 15 § 1983 under three broad theories: (1) “when implementation of 16 its official policies or established customs inflicts the 17 constitutional injury,” id. at 708 (Powell, J. concurring); (2) 18 “for acts of ‘omission,’ when such omissions amount to the local 19 government’s own official policy,” Clouthier v. County of Contra 20 Costa, 591 F.3d 1232, 1249 (9th Cir. 2010); and (3) “when the 21 individual who committed the constitutional tort was an official 22 with final policy-making authority or such an official ratified a 23 subordinate’s unconstitutional decision or action and the basis 24 for it,” Clouthier, 591 F.3d at 1250 (internal quotation marks 25 and citation omitted). 26 Monell, 436 U.S. Generally, a local government may be held liable under There can be little doubt that plaintiff attempted to 27 plead a Monell claim in his Third Amended Complaint. 28 Am. Compl. ¶ 3 (“The City of Ceres Police department fosters a 2 (See Third 1 policy an [sic] environment of brutality and office [sic] 2 misconduct. . . . [T]he deliberate inaction by the Department has 3 led to a policy and environment of unlawful tactics.”).) 4 Third Amended Complaint includes factual allegations that could 5 support a plausible Monell claim. 6 large number of complaints for a department it sized [sic] and at 7 the time of the incident was not investigating complaints in a 8 timely or thorough manor [sic]. 9 officers administering beating [sic] on a regular basis and had The (See id. (“The city has a Supervisors ignored reports of 10 or should have had knowledge of a group of six officers that 11 acted in concert to rid the community of the ‘undesirables’. 12 Small parts of the community were aware of this group, its 13 tactics and the apparent impunity which they acted under, the 14 deliberate inaction by the Department has led to a policy and 15 environment of unlawful tactics. . . . The Ceres Police 16 Department has since terminated several officers for their 17 actions and has reversed may [sic] of the changes made in their 18 reorganization of the last few years.”).) 19 While these allegations by a pro se plaintiff are 20 sufficient to survive screening at this early stage, the 21 magistrate judge correctly points out that plaintiff has not 22 named the City of Ceres as a defendant. 23 give plaintiff leave to join the City of Ceres as a defendant in 24 this case. 25 The court will therefore IT IS THEREFORE ORDERED that the court ADOPTS the 26 magistrate judge’s recommendations that (1) this action proceed 27 on plaintiff’s Third Amended Complaint, (Docket No. 11), against 28 defendants Griebel and Quiroz in their individual capacities for 3 1 excessive force in violation of the Fourth Amendment and against 2 defendants Niewenhuis, King, and Albonetti in their individual 3 capacities for failure to intercede and (2) plaintiff’s claims 4 against those officers in their official capacities be dismissed. 5 IT IS FURTHERED ORDERED that plaintiff has thirty days 6 from the date this Order is signed to file a Fourth Amended 7 Complaint joining the City of Ceres as a defendant. 8 plaintiff files a Fourth Amended Complaint, the magistrate judge 9 shall enter an order finding service of the City of Ceres 10 appropriate. 11 Dated: October 26, 2015 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 After

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