Freitag v. City of San Diego Harbor Police et al, No. 3:2011cv02999 - Document 9 (S.D. Cal. 2012)
Court Description: ORDER granting Plaintiff's 2 Motion for Leave to Proceed in Forma Pauperis and denying without prejudice 3 Motion to Appoint Counsel. Court dismisses in part Pla's Complaint for failure to state a claim upon which relief can be granted . Court dismisses with prejudice Pla's 42 USC 1983 claims against Dft City of San Diego Harbor Police, dismisses with prejudice Pla's unlawful arrest claim and dismisses without prejudice Pla's state law claims. Pla may proceed on clai ms for excessive force and due process violations against Dft Padilla. Court orders US Marshal to serve a copy of the Complaint, Summons and this Order upon Dfts. Signed by Judge Irma E. Gonzalez on 1/18/2012. (IFP Package prepared and mailed to Plaintiff) (All non-registered users served via U.S. Mail Service) (jah)
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Freitag v. City of San Diego Harbor Police et al Doc. 9 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JOHN PAUL FREITAG, 11 CASE NO. 11-CV-2999 - IEG (JMA) Plaintiff, ORDER: 12 (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS; 13 14 [Doc. No. 2] vs. 15 (2) SUA SPONTE DISMISSING IN PART COMPLAINT; 16 [Doc. No. 1] 17 (3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF PROCESS PURSUANT TO 28 U.S.C. § 1915(d) AND FED. R. CIV. P. 4(c)(3); AND 18 19 20 21 CITY OF SAN DIEGO HARBOR POLICE; ROBERT PADILLA, Badge # 5311, (4) DENYING WITHOUT PREJUDICE MOTION FOR APPOINTMENT OF COUNSEL Defendants. 22 [Doc. No. 3] 23 24 25 Plaintiff commenced this action on December 16, 2011 against the City of San Diego 26 Harbor Police and Officer Robert Padilla, Badge # 5311 alleging that they violated his civil rights. 27 [Doc. No. 1.] Along with his complaint, Plaintiff submitted a motion to proceed in forma pauperis 28 and a motion for the appointment of counsel. [Doc. Nos. 2-3.] Having considered Plaintiff’s -1- 11cv2999 Dockets.Justia.com 1 submissions, the Court GRANTS Plaintiff leave to proceed in forma pauperis, DISMISSES IN 2 PART Plaintiff’s complaint, ORDERS the U.S. Marshal to effect service of Plaintiff’s complaint, 3 and DENIES WITHOUT PREJUDICE Plaintiff’s motion for the appointment of counsel. 4 BACKGROUND 5 A. 6 The following allegations are taken from the complaint. On October 30, 2010, Plaintiff 7 was on a fishing pier when he was assaulted by four men. [Doc. No. 1, Compl. at 1.] Plaintiff 8 called 911, and the Harbor Police responded to his call with Defendant Padilla as the lead officer. 9 [Id.] When the Harbor Police arrived, they told Plaintiff to get down on the ground. [Id.] Plaintiff 10 complied with their request, and the officers handcuffed him. [Id.] Plaintiff told the officers what 11 happened, and the officers told him that he still needed to be handcuffed. [Id.] The officers then 12 talked to other witnesses, and at this time, Plaintiff began to experience chest pains. [Id.] After 13 about thirty minutes, the officers placed Plaintiff in the back of a squad car, and then took him out 14 of that car and placed him in a different squad car. [Id.] Plaintiff states that this hurt his shoulders 15 and back due to his heavy weight. [Id.] 16 Factual Background The officers charged Plaintiff with petty theft and brandishing a deadly weapon and gave 17 him a notice to appear at the county superior court on December 28, 2010. [Compl. at 2, 4.] 18 Plaintiff admits that during the altercation with the men he had a knife for cutting bait, which he 19 used to make the men back off when they began to approach him. [Id.] Plaintiff also states that 20 one of the men had an ear piece that fell out during the altercation. [Id.] Plaintiff admits that he 21 took the ear piece and put it near his belongings as the men were leaving. [Id.] 22 B. 23 On November 22, 2011, Plaintiff filed a previous complaint against City of San Diego Related Proceedings 24 Harbor Police Officers Roberto Padilla, # 5311, and Michael Rich, # 2814, related to his 25 interaction with them on the fishing pier. See Freitag v. Padilla, 11-cv-2725 (S.D. Cal., filed Nov. 26 22, 2011). In that case, the Court dismissed Plaintiff’s complaint and his first amended complaint 27 as frivolous and for failure to state a claim and granted Plaintiff leave to file a second amended 28 complaint. See id. (Orders filed Dec. 1, 2011 and Dec. 19, 2011). -2- 11cv2999 1 2 DISCUSSION I. MOTION TO PROCEED IN FORMA PAUPERIS 3 All parties instituting any civil action, suit, or proceeding in a district court, except an 4 application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). 5 However, an action may proceed despite failure to pay the filing fee if the party is granted an in 6 forma pauperis (“IFP”) status. See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The 7 Court may grant IFP status to any party who demonstrates that he or she is unable to pay such fees 8 or give security therefor. 28 U.S.C. § 1915(a). 9 In the present case, having reviewed Plaintiff’s motion and declaration in support of the 10 motion, the Court finds that Plaintiff has made a sufficient showing of inability to pay the required 11 filing fees. See Rodriguez, 169 F.3d at 1177. Accordingly, good cause appearing, the Court 12 GRANTS Plaintiff leave to proceed in forma pauperis. 13 II. INITIAL SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 14 A. 15 After granting IFP status, the Court must dismiss the case if the complaint “fails to state a Legal Standards 16 claim on which relief may be granted” or is “frivolous.” 28 U.S.C. § 1915(e)(2)(B); see also Lopez 17 v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not 18 only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that fails 19 to state a claim). In order to properly state a claim for relief, “a complaint must contain sufficient 20 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 21 Iqbal,–U.S.–, 129 S. Ct. 1937, 1949 (2009). A complaint must contain more than “labels and 22 conclusions” or a “formulaic recitation of the elements of a cause of action;” it must contain factual 23 allegations sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. 24 Twombly, 550 U.S. 544, 555 (2007). “‘The pleading must contain something more . . . than . . . a 25 statement of facts that merely creates a suspicion [of] a legally cognizable right of action.’” Id. 26 A complaint is frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke 27 v. Williams, 490 U.S. 319, 325 (1989) (superseded on other grounds as stated in Lopez v. Smith, 28 203 F.3d 1122, 1126 (9th Cir. 2000)). Where a complaint fails to state “any constitutional or -3- 11cv2999 1 statutory right that was violated, nor asserts any basis for federal subject matter jurisdiction,” there 2 is no “arguable basis in law” under Neitzke, and the court on its own initiative may decline to 3 permit the plaintiff to proceed and dismiss the complaint under Section 1915. Cato v. United 4 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 5 B. 42 U.S.C. § 1983 Claims 6 Plaintiff appears to be bringing causes of action against the Defendants for unlawful arrest, 7 excessive force, and violation of his due process rights pursuant to 42 U.S.C. § 1983.1 Section 1983 8 provides a cause of action for the “deprivation of any rights, privileges, or immunities secured by 9 the Constitution and laws” of the United States. To state a claim under 42 U.S.C. § 1983, Plaintiff 10 must allege that: (1) the conduct he complains of violated a right secured by the Constitution and 11 laws of the United States; and (2) the conduct he complains of was committed by a person acting 12 under color of state law. Humphries v. Cnty. of Los Angeles, 554 F.3d 1170, 1184 (9th Cir. 2009) 13 (citing West v. Atkins, 487 U.S. 42, 48 (1988)). 14 i. 15 § 1983 Claims Against Defendant City of San Diego Harbor Police Plaintiff names as a Defendant, the City of San Diego Harbor Police. [Compl.] However, a 16 local police department is not a “person” within the meaning of section 1983. Robbins v. City of 17 San Diego Police Dep’t, 2010 U.S. Dist. LEXIS 22230, at *6 (S.D. Cal. Mar. 8, 2010) (“An agency 18 or department of a municipality is not a proper defendant under section 1983.” (citing Vance v. 19 Cnty. of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996)); see also United States v. Kama, 394 20 F.3d 1236, 1240 (9th Cir. 2005) (Ferguson, J., concurring) (“[M]unicipal police departments and 21 bureaus are generally not considered ‘persons’ within the meaning of 42 U.S.C. § 1983.”). 22 Therefore, Plaintiff’s section 1983 claims cannot proceed against the City of San Diego Harbor 23 Police. 24 Further, even if the Court were to construe Plaintiff’s allegations liberally, and assume that 25 1 26 27 28 Plaintiff also cites to 28 U.S.C. § 2672, 42 U.S.C. § 20009, 42 U.S.C. § 132098(a)(b), and 22 C.F.R. § 42.65 in his complaint. [Compl. at 3.] 42 U.S.C. § 20009 and 42 U.S.C. § 132098(a)(b) are not actual statutes in existence in the United States Code, and both 28 U.S.C. § 2672 and 22 C.F.R. § 42.65 are inapplicable to the present case. 22 C.F.R. § 42.65 relates to the supporting documents that an alien is required to submit when applying for a visa. See 22 C.F.R. § 42.65(b). 28 U.S.C. § 2672 governs claims brought pursuant to the Federal Torts Claims Act, but Plaintiff is not suing the United States or any federal employees or federal entities. -4- 11cv2999 1 Plaintiff meant to sue the City of San Diego instead, his allegations are still insufficient to state a 2 claim for relief. A local government may be held liable under section 1983 only if the plaintiff can 3 demonstrate that the government’s official policy or custom was the “moving force” responsible for 4 the infliction of his injuries. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 5 694 (1978). Plaintiff’s complaint contains no allegations showing the existence of any custom or 6 widespread policy by the City of San Diego Harbor Police that caused his alleged injuries. 7 Plaintiff’s allegations are only related the incident between himself and the police officers that 8 occurred on October 30, 2010. “A plaintiff cannot demonstrate the existence of a municipal policy 9 or custom based solely on a single occurrence of unconstitutional action by a non-policymaking 10 employee.” McDade v. West, 223 F.3d 1135, 1141 (9th Cir. 2000). Accordingly, the Court 11 DISMISSES WITH PREJUDICE Plaintiff’s section 1983 claims against the City of San Diego 12 Harbor Police. 13 14 ii. Unlawful Arrest Claim Against Defendant Padilla “A claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth 15 Amendment, provided the arrest was without probable cause or other justification.” Dubner v. City 16 & Cnty. of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). “Probable cause to arrest exists when 17 officers have knowledge or reasonably trustworthy information sufficient to lead a person of 18 reasonable caution to believe that an offense has been or is being committed by the person being 19 arrested.” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (citing Beck v. Ohio, 379 20 U.S. 89, 91 (1964)). “While conclusive evidence of guilt is of course not necessary under this 21 standard to establish probable cause, ‘[m]ere suspicion, common rumor, or even strong reason to 22 suspect are not enough.’” Id. (quoting McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984)). 23 “Because the probable cause standard is objective, probable cause supports an arrest so long as the 24 arresting officers had probable cause to arrest the suspect for any criminal offense, regardless of 25 their stated reason for the arrest.” Edgerly v. City & Cnty. of San Francisco, 599 F.3d 946, 954 (9th 26 Cir. 2010) (citing Devenpeck v. Alford, 543 U.S. 146, 153-55 (2004)). “Probable cause, however, 27 must still exist under some specific criminal statute.” Id. 28 Plaintiff alleges that he was arrested for petty theft in violation of California Penal Code §§ -5- 11cv2999 1 484(a), 488 and brandishing a deadly weapon in violation of California Penal Code § 417(a)(1). 2 [Compl. at 2, 4.] California Penal Code § 484(a) provides: “Every person who shall feloniously 3 steal, take, carry, lead, or drive away the personal property of another . . . is guilty of theft.” 4 Plaintiff admits in his complaint that he was arrested because during the altercation with the men, 5 he took an ear piece that belonged to one of the men and placed it with his own belongings as the 6 men were leaving. [Compl. at 2.] These allegations establish that Defendant Padilla had probable 7 cause to arrest Plaintiff for petty theft. Accordingly, Plaintiff has failed to state a claim for 8 unlawful arrest, and the Court DISMISSES WITH PREJUDICE Plaintiff’s unlawful arrest claim. 9 10 iii. Excessive Force and Due Process Claims Against Defendant Padilla Plaintiff alleges that Defendant Padilla violated his right to be free from excessive force 11 when the officers handcuffed him and placed him in the back of a squad car and then moved him to 12 the back of a different squad car causing him pain in his back and shoulders. [Compl. at 1.] 13 Plaintiff also appears to allege that Defendant Padilla violated his due process rights by depriving 14 him of his right to use a “public entity (fishing pier)” for the night. [Id. at 2-3.] Based on the 15 allegations in the complaint, the Court declines to sua sponte dismiss Plaintiff’s claim for excessive 16 force and Plaintiff’s due process claim. Accordingly, Plaintiff may proceed on these two claims 17 against Defendant Padilla. 18 C. State Law Tort Claims 19 Plaintiff appears to also be bringing state law tort claims against the Defendants. [Compl. at 20 3.] Under the California Tort Claims Act, a plaintiff may not maintain an action for damages 21 against a public entity or a public employee unless he timely files a notice of tort claim. CAL. 22 GOV’T CODE §§ 905, 911.2, 945.4 & 950.2; Mangold v. California Pub. Utils. Comm’n, 67 F.3d 23 1470, 1477 (9th Cir.1995) (“The California Tort Claims Act requires, as a condition precedent to 24 suit against a public entity, the timely presentation of a written claim and the rejection of the claim 25 in whole or in part.”). “Compliance with the claims statutes is mandatory; and failure to file a 26 claim is fatal to the cause of action.” City of San Jose v. Sup. Ct, 12 Cal. 3d 447, 454 (1974) 27 (citation omitted). “Complaints that do not allege facts demonstrating either that a claim was 28 timely presented or that compliance with the claims statute is excused are subject to a general -6- 11cv2999 1 demurrer for not stating facts sufficient to constitute a cause of action.” Shirk v. Vista Unified 2 School Dist., 42 Cal. 4th 201, 209 (2007); accord. Mangold, 67 F.3d at 1477. Plaintiff does not 3 allege in his complaint that he has complied with the California Tort Claims Act by timely filing a 4 notice of tort claim with the appropriate entities. Therefore, all of Plaintiff’s state tort law causes of 5 action against Defendants should be dismissed for failure to state a claim. See Shirk, 42 Cal. 4th at 6 209; Mangold, 67 F.3d at 1477. 7 Further, under California law a public entity is not liable for a claim brought by a plaintiff 8 unless liability is provided for by statute or required by the state or federal constitution. CAL. GOV. 9 CODE § 815; Lundeen Coatings Corp. v. Dep’t of Water & Power, 232 Cal. App. 3d 816, 832 10 (1991); see also Munoz v. City of Union City, 148 Cal. App. 4th 173, 182 (2004) (“‘[D]irect tort 11 liability of public entities must be based on a specific statute declaring them to be liable, or at least 12 creating some specific duty of care.’”). Therefore, in order to state a cause of action for 13 government tort liability, every fact essential to the existence of statutory liability must be plead 14 with particularity, including the existence of a statutory duty. Zuniga v. Housing Auth., 41 Cal. 15 App. 4th 82, 96 (1995) abrogated on other grounds by Zelig v. Cnty. of Los Angeles, 27 Cal. 4th 16 1112 (2002). Plaintiff does not identify in the complaint what statute or statutes establish the City 17 of San Diego Harbor Police’s liability. Therefore, Plaintiff’s state law claims against the City of 18 San Diego Harbor Police should also be dismissed on this basis. See Zuniga, 41 Cal. App. 4th at 19 96. Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s state law claims. 20 III. SERVICE PURSUANT TO 28 U.S.C. § 1915(d) 21 Because Plaintiff’s complaint appears to state a claim against Defendant Padilla for 22 violation of his right to be free from excessive force and violation of his due process rights, these 23 two claims survive the Court’s sua sponte screening under 28 U.S.C. §§ 1915(e)(2). See Lopez v. 24 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Accordingly, the Court finds that 25 Plaintiff is entitled to U.S. Marshal service on his behalf. See 28 U.S.C. § 1915(d) (“The officers of 26 the court shall issue and serve all process, and perform all duties in [in forma pauperis] cases.”); 27 FED. R. CIV. P. 4(c)(3). Plaintiff is cautioned, however, that “the sua sponte screening and 28 dismissal procedure is cumulative of, not a substitute for, any subsequent Rule 12(b)(6) motion that -7- 11cv2999 1 the defendant may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2 2007). 3 III. MOTION FOR APPOINTMENT OF COUNSEL 4 In addition to his complaint, Plaintiff has also filed a motion for appointment of counsel. 5 [Doc. No. 3.] However, the Constitution provides no right to appointment of counsel in a civil 6 case, unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. 7 Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district 8 courts are granted discretion to appoint counsel for indigent persons. This discretion may be 9 exercised only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 10 Cir. 1991). “A finding of exceptional circumstances requires an evaluation of both the ‘likelihood 11 of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the 12 complexity of the legal issues involved.’ Neither of these issues is dispositive and both must be 13 viewed together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 14 1331 (9th Cir. 1986)). 15 Plaintiff’s complaint does not appear to raise particularly complex legal issues, and Plaintiff 16 has been able to sufficiently articulate the factual basis for his claims. In addition, it is difficult to 17 access the merits of Plaintiff’s action at this early stage, and, therefore, the Court cannot conclude 18 that Plaintiff is likely to succeed on his claims. Accordingly, the Court DENIES Plaintiff’s motion 19 without prejudice, as neither the interests of justice nor exceptional circumstances warrant 20 appointment of counsel at this time. See LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); 21 Terrell, 935 F.2d at 1017. 22 CONCLUSION 23 Based on the foregoing, the Court GRANTS Plaintiff’s Motion to Proceed in Forma 24 Pauperis pursuant to 28 U.S.C. § 1915(a), but DISMISSES IN PART Plaintiff’s complaint for 25 failure to state a claim upon which relief can be granted. Specifically, the Court: 26 1. 27 28 DISMISSES WITH PREJUDICE Plaintiff’s 42 U.S.C. § 1983 claims against Defendant City of San Diego Harbor Police; 2. DISMISSES WITH PREJUDICE Plaintiff’s unlawful arrest claim; -8- 11cv2999 1 3. DISMISSES WITHOUT PREJUDICE Plaintiff’s state law claims. 2 The Court also DENIES WITHOUT PREJUDICE Plaintiff’s motion for appointment of counsel. 3 Plaintiff may proceed on his claims for excessive force and due process violations against 4 Defendant Padilla. The Court ORDERS as follows: 5 1. The United States Marshal shall serve a copy of the complaint, summons and this 6 Order granting Plaintiff leave to proceed in forma pauperis upon Defendants as directed by plaintiff 7 on U.S. Marshal Form 285. All costs of service shall be advanced by the United States. 8 2. Plaintiff shall serve upon defendants or, if appearance has been entered by counsel, 9 upon defendant’s counsel, a copy of every further pleading or other document submitted for 10 consideration of the Court. Plaintiff shall include with the original paper to be filed with the Clerk 11 of the Court a certificate stating the manner in which a true and correct copy of any document was 12 served on the defendants or counsel of defendants and the date of service. Any paper received by a 13 district judge or magistrate judge which has not been filed with the Clerk or which fails to include a 14 Certificate of Service will be disregarded. 15 IT IS SO ORDERED. 16 DATED: January 18, 2012 ______________________________ 17 IRMA E. GONZALEZ, Chief Judge United States District Court 18 19 20 21 22 23 24 25 26 27 28 -9- 11cv2999
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