(PS) Ingram v. Sacramento Police Department et al, No. 2:2009cv01562 - Document 37 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 10/20/2009 RECOMMENDING 29 that Defendants' motion to dismiss be granted except for the claim against defendant Villegas under the Fourth Amendment for excessive force during an investigatory stop; and Defendant Sacramento Police Department and Miller be dismissed. Referred to Judge Garland E. Burrell, Jr. Objections due 10 days after being served with these F & R's. (Reader, L)
Download PDF
<![CDATA[
(PS) Ingram v. Sacramento Police Department et al Doc. 37 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CHADERICK INGRAM, 11 12 Plaintiff, No. CIV 09-1562 GEB KJM PS vs. 13 ANDREW MILLER, et al., 14 Defendants. 15 16 FINDINGS AND RECOMMENDATIONS / Defendant’s motion to dismiss came on regularly for hearing July 22, 2009. 17 Plaintiff appeared in propria persona. Marcos Kropf appeared for defendants. Upon review of 18 the documents in support and opposition, upon hearing the arguments of counsel and plaintiff, 19 and good cause appearing therefor, THE COURT FINDS AS FOLLOWS: 20 This matter was previously before the court on defendant’s motion to dismiss. In 21 ruling on the prior motion, this court found that plaintiff had failed to state a claim under the First 22 and Sixth Amendments. See Order filed August 25, 2009 (docket no. 25). Plaintiff was granted 23 leave to amend to state a claim for excessive force under the Fourth Amendment against 24 defendant Villegas. 25 Plaintiff’s amended complaint, in violation of the court’s order, contains virtually 26 identical allegations as the complaint that was dismissed, except that defendant Miller is omitted 1 Dockets.Justia.com 1 from the caption as a named defendant. Defendants again move to dismiss for failure to state a 2 claim. With respect to plaintiff’s claims under the First and Sixth Amendments, defendants are 3 correct that plaintiff fails to state a claim. The conduct giving rise to the action herein was 4 simply an encounter between the police and plaintiff outside a private residence. There was no 5 interference with plaintiff’s free speech rights and there is no indication that plaintiff was 6 arrested and prosecuted and denied counsel during those proceedings. 7 Plaintiff’s excessive force claim is governed by the Fourth Amendment. See 8 Graham v. Connor, 490 U.S. 386, 395 (1989) (holding that a claim that a law enforcement 9 official used excessive force in making an arrest, investigatory stop, or other “seizure” is judged 10 under the Fourth Amendment's objective “reasonableness” standard); see also Davis v. City of 11 Las Vegas, 478 F.3d 1048 (9th Cir. 2007). Liberally construing plaintiff’s pro se pleadings, the 12 allegations of the amended complaint state a claim under 42 U.S.C. § 1983 for excessive force. 13 See Amended Complaint (docket no. 27) at 6:11-12, 7:26-8:5. These allegations set forth the 14 time and place of the incident and assert that defendant Villegas knowingly used excessive force 15 by applying unreasonable pressure to plaintiff’s previously broken leg with the intent to cause 16 plaintiff excruciating pain. The action therefore should proceed solely on this claim. 17 Plaintiff also has named as a defendant the Sacramento Police Department. There 18 is no proof of timely service of summons, as required under Federal Rule of Procedure 4(m). 19 Moreover, none of the complaints filed by plaintiff have alleged that a custom or any official 20 policy of this defendant gave rise to the alleged constitutional deprivation. See Monell v. 21 Department of Social Servs., 436 U.S. 658 (1978). Defendant Sacramento Police Department 22 therefore should be dismissed. 23 Accordingly, IT IS HEREBY RECOMMENDED that: 24 1. Defendants’ motion to dismiss (docket no. 29) be granted except for the claim 25 against defendant Villegas under the Fourth Amendment for excessive force during an 26 investigatory stop; and 2 1 2. Defendant Sacramento Police Department and Miller be dismissed. 2 These findings and recommendations are submitted to the United States District 3 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within ten 4 days after being served with these findings and recommendations, any party may file written 5 objections with the court and serve a copy on all parties. Such a document should be captioned 6 "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections 7 shall be served and filed within ten days after service of the objections. The parties are advised 8 that failure to file objections within the specified time may waive the right to appeal the District 9 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 DATED: October 20, 2009. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 006 ingram-villegas.f&r 26 3
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
