(PS) Daniel v. Tassone et al, No. 2:2018cv03018 - Document 11 (E.D. Cal. 2019)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 3/26/2019 RECOMMENDING that this case be dismissed in its entirety and without leave to amend for failure to state a legal claim. Referred to Judge John A. Mendez. Objections to F&R due within 21 days. (Zignago, K.)
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(PS) Daniel v. Tassone et al Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN DeVAN DANIEL, 12 13 14 15 No. 2:18-cv-03018 JAM AC (PS) Plaintiff, v. FINDINGS AND RECOMMENDATIONS PAUL TASSONE and DAN DAILEY, Defendants. 16 17 Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the 18 undersigned by E.D. Cal. 302(c)(21). Plaintiff has been granted leave to proceed in forma 19 pauperis (“IFP”). ECF No. 4. The initial complaint was rejected for failing to comply with the 20 Federal Rules of Civil Procedure, and failing to state any legal claim. ECF No. 3. Plaintiff was 21 given the opportunity to file an amended complaint. Id. After receiving an extension of time 22 (ECF No. 6), plaintiff filed his First Amended Complaint (“FAC”). ECF No. 10. Because the 23 FAC fails to correct any of the deficiencies of the original complaint, the undersigned must 24 recommend dismissal of this case without further leave to amend. 25 26 I. SCREENING The federal IFP statute requires federal courts to dismiss a case if the action is legally 27 “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 28 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 1 Dockets.Justia.com 1 Plaintiff must assist the court in determining whether or not the complaint is frivolous, by drafting 2 the complaint so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). 3 The Federal Rules of Civil Procedure are available online at www.uscourts.gov/rules- 4 policies/current-rules-practice-procedure/federal-rules-civil-procedure. 5 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 6 Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the 7 court will (1) accept as true all of the factual allegations contained in the complaint, unless they 8 are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the 9 plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von 10 Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. 11 denied, 564 U.S. 1037 (2011). 12 The court applies the same rules of construction in determining whether the complaint 13 states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court 14 must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must 15 construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a 16 less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 17 (1972). However, the court need not accept as true conclusory allegations, unreasonable 18 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 19 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice 20 to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 21 556 U.S. 662, 678 (2009). 22 To state a claim on which relief may be granted, the plaintiff must allege enough facts “to 23 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has 24 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 25 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 26 678. A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity 27 to amend, unless the complaint’s deficiencies could not be cured by amendment. See Noll v. 28 //// 2 1 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in 2 Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc). 3 A. The Amended Complaint 4 Plaintiff sues Paul Tassone, a police officer, Dan Dailey, a chief of police, and Scott 5 McDowell, a police officer. ECF No. 10 at 2. Plaintiff re-alleges that the officers violated his 6 Eighth Amendment and due process rights (compare ECF No. 1 at 3), and newly alleges that his 7 rights under the Americans with Disabilities Act were violated by defendants’ discriminatory 8 behavior. Id. at 3. Plaintiff alleges that he became drowsy on the way to a “psych” appointment 9 after taking his morning medications, and so he followed the CalTrans/CHP directive to pull over 10 and get rest. Id. at 4. Plaintiff attaches to his FAC a “Rio Vista Police Department Citizen 11 Complaint Report” dated August 10, 2018. ECF No. 10 at 6-7. In this document plaintiff states 12 he was pulled over by defendant Tassone, who asked plaintiff to get out of the car. Id. at 7. 13 Plaintiff asked to roll up his window so that his pit bull would not jump out of the car, and 14 Tassone responded that if the pit bull jumped out, he would shoot it. Id. Plaintiff became 15 agitated and told defendants he was on psych meds. Id. Plaintiff did not receive a ticket. Id. at 6. 16 The facts alleged in the FAC are substantially the same as those alleged in the initial complaint. 17 Compare ECF Nos. 1 and 10. 18 B. Analysis 19 The FAC again fails to state a claim upon which relief can be granted. As previously 20 explained to plaintiff, “police may make an investigative traffic stop based on ‘reasonable 21 suspicion.’” United States v. Ibarra, 345 F.3d 711, 713, n. 1 (9th Cir. 2003). If an officer does 22 not have reasonable suspicion, there may be a Fourth Amendment violation. See Haynie v. 23 County of Los Angeles, 339 F.3d 1071, 1075 (9th Cir.2003). “Reasonable suspicion supported 24 by articulable facts that criminal activity may be afoot will sustain an investigative stop.” Id. 25 (internal quotation marks omitted) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989). To 26 the extent plaintiff intends to claim his Fourth Amendment rights were violated because he was 27 pulled over without reasonable suspicion, his FAC fails to make that claim, just as his initial 28 complaint failed to make such a claim. Indeed, plaintiff’s statements that he was driving while 3 1 tired from his medications point to the probability that the officer pulling him over indeed had 2 reasonable suspicion to do so. In any case, the facts alleged do not support a Fourth Amendment 3 violation. 4 Plaintiff’s FAC is entirely devoid of allegations relevant to an Eighth Amendment 5 violation, as was the case with his initial complaint. The Eighth Amendment prohibits cruel and 6 unusual punishment. Estelle v. Gamble, 429 U.S. 97, 101 (1976). As previously explained to the 7 plaintiff, the Eight Amendment protection against cruel and unusual punishment does not apply to 8 pre-trial detainees or to free people – it applies only after conviction and sentence. Lee v. City of 9 Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Plaintiff does not allege that he was detained, let 10 alone convicted or sentenced. He therefore cannot state an Eight Amendment claim. Moreover, 11 the FAC does not contain any facts that would support a claim of unreasonable use of force in 12 violation of the Fourth Amendment. See, generally, Graham v. Connor, 490 U.S. 386 (1989). 13 Plaintiff’s only new claim in his FAC is discrimination under the Americans with 14 Disabilities Act (“ADA”). It is an open question whether the ADA applies to arrests by police 15 officers. Discrimination against persons with disabilities by public entities is prohibited by Title 16 II of the ADA, which commands that “no qualified individual with a disability shall, by reason of 17 such disability, be excluded from participation in or be denied the benefits of the services, 18 programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 19 42 U.S.C. § 12132. To state a claim under Title II of the ADA, a plaintiff generally must show: 20 (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive 21 the benefit of a public entity’s services, programs or activities; (3) she was either excluded from 22 participation in or denied the benefits of the public entity’s services, programs or activities or was 23 otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits or 24 discrimination was by reason of her disability. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 25 1056, 1060 (9th Cir.2007). 26 The ADA’s anti-discrimination provision does not apply to officers in their individual 27 capacities, because the statute by it terms applies only to entities. It is an open question whether a 28 public entity can be liable for damages under Title II for an arrest made by its police officers. 4 1 City & County of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1773–74 (2015) (noting that 2 “only public entities are subject to Title II” of the ADA and declining to reach the applicability of 3 the ADA to arrests). However, it is well established that compensatory damages are not available 4 under Title II of the ADA absent a showing of discriminatory intent. Ferguson v. City of 5 Phoenix, 157 F.3d 668, 674 (9th Cir. 1998). 6 Here, plaintiff cannot make out an ADA discrimination claim for numerous reasons. 7 First, the facts as alleged do not indicate that any discrimination took place: plaintiff alleges he 8 was driving while drowsy, was pulled over, and was ultimately not given any ticket or subject to 9 any kind of arrest, penalty, or punishment. ECF No. 10. Further, plaintiff’s allegations do not 10 demonstrate any discriminatory intent on the part of the officer defendants, who pulled him over 11 before learning of his disability and released him without penalty. Id. at 6-7. Plaintiff’s failure to 12 show any kind of intent with respect to discrimination based on his disability is reminiscent of his 13 failure, in the original complaint, to demonstrate any intent as to racial discrimination. ECF No. 3 14 at 4. Plaintiff was informed in the court’s prior screening order that he need to allege facts 15 sufficient to demonstrate discriminatory intent. Id. Although plaintiff’s FAC changes the basis 16 for alleged discrimination to his disability, plaintiff again has entirely failed to plead facts 17 showing any discriminatory intent. The facts alleged in the initial complaint and the FAC are 18 essentially identical. For these reasons, plaintiff has failed to state an ADA claim. 19 20 II. AMENDMENT IS FUTILE Ordinarily, pro se plaintiffs are given the opportunity to amend a complaint that fails to 21 state a claim. Noll, 809 F.2d at 1448. However, leave to amend need not be granted where it is 22 clear that amendment would be futile. Id. Here, plaintiff has already had one opportunity to 23 amend, with clear instructions on how to present a complaint that could pass screening. ECF No. 24 3. Despite ample time to file an amended complaint, plaintiff presented the court with an 25 amended complaint that contains the same facts and the same deficiencies as the original 26 complaint. Because plaintiff’s FAC demonstrates that he has alleged the facts available to him, 27 and those facts to do not support a legal claim, providing another opportunity to amend would be 28 futile and an inefficient use of court resources. 5 1 2 III. CONCLUSION In light of the foregoing, it is hereby RECOMMENDED that this case be dismissed in its 3 entirety and without leave to amend for failure to state a legal claim pursuant to Fed. R. Civ. P. 4 12(b)(66). 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 7 days after being served with these findings and recommendations, plaintiff may file written 8 objections with the court. Such document should be captioned “Objections to Magistrate Judge’s 9 Findings and Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file 10 objections within the specified time may waive the right to appeal the District Court’s order. 11 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 DATED: March 26, 2019 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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