-LRL Gonzalez v. City Of North Las Vegas Police Department et al, No. 2:2010cv01850 - Document 3 (D. Nev. 2011)
Court Description: ORDER Granting 1 Application for Leave to Proceed in forma pauperis. Initial partial filing fee of $14.69 due. Clerk shall send a copy of this order to the CCDC Accounting Supervisor. Clerk shall file the complaint. The North Las Vegas Police Department is dismissed without prejudice as a named defendant in this action, subject to leave to amend within 30 days. Clerk shall issue summons for defendants Michael Myers, Brian Sachs, Jason Arnong, and R. Parrish, and deliver to US Marshal for service. Clerk shall send plaintiff four USM-285 forms, one copy of the complaint and a copy of this order. Plaintiff shall have 20 days to furnish the US Marshal with the required Forms USM-285. Signed by Magistrate Judge Lawrence R. Leavitt on 5/12/11. (Copies have been distributed pursuant to the NEF; cc to CCDC Accounting; Finance - MMM)
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-LRL Gonzalez v. City Of North Las Vegas Police Department et al Doc. 3 1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 *** 5 JESUS GONZALEZ, 6 7 8 9 Plaintiff, v. CITY OF NORTH LAS VEGAS POLICE DEPARTMENT, et al., Defendants. 10 ) ) ) ) ) ) ) ) ) ) ) 2:10-cv-01850-RLH-LRL ORDER 11 The plaintiff has submitted an Application to Proceed In Forma Pauperis (#1) and a Complaint 12 (#1). Plaintiff’s application to proceed in forma pauperis is granted. Based on the information 13 regarding plaintiff’s financial status in the application to proceed in forma pauperis, plaintiff is required 14 to pay an initial installment of the filing fee pursuant to 28 U.S.C. §1915. 15 The grant of in forma pauperis status adjusts the amount of the filing fee that plaintiff must 16 prepay -- plaintiff will be required to prepay an initial installment of $14.69, instead of having to prepay 17 the full $350 filing fee for this action. The entire $350 filing fee will, however, remain due from 18 plaintiff, and the institution where plaintiff is incarcerated will collect money toward the payment of the 19 full filing fee when petitioner’s institutional account has a sufficient balance, pursuant to 28 U.S.C. 20 §1915. The entire $350 filing fee will remain due and payable, and will be collected from plaintiff’s 21 institutional account regardless of the outcome of this action. 22 I. Screening Standard 23 Pursuant to the Prisoner Litigation Reform Act (PLRA), federal courts must dismiss a prisoner’s 24 claims, “if the allegation of poverty is untrue,” or if the action “is frivolous or malicious,” “fails to state 25 a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune 26 Dockets.Justia.com 1 from such relief.” 28 U.S.C. § 1915(e)(2). A claim is legally frivolous when it lacks an arguable basis 2 either in law or in fact. Nietzke v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore, dismiss 3 a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual 4 contentions are clearly baseless. Id. at 327. The critical inquiry is whether a constitutional claim, 5 however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 6 639, 640 (9th Cir. 1989). 7 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 8 provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under 9 Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. Review under 10 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 11 232 F.3d 719, 723 (9th Cir. 2000). A complaint must contain more than a “formulaic recitation of the 12 elements of a cause of action;” it must contain factual allegations sufficient to “raise a right to relief 13 above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 14 (2007). “The pleading must contain something more...than...a statement of facts that merely creates a 15 suspicion [of] a legally cognizable right of action.” Id. In reviewing a complaint under this standard, the 16 court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital 17 Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to plaintiff and 18 resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 19 Allegations in a pro se complaint are held to less stringent standards than formal pleadings 20 drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 21 (1972) (per curiam); see also Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 22 All or part of a complaint filed by a prisoner may be dismissed sua sponte, however, if the prisoner’s 23 claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions 24 that are untenable (e.g. claims against defendants who are immune from suit or claims of infringement 25 of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations 26 2 1 (e.g. fantastic or delusional scenarios). See Neitzke, 490 U.S. at 327-28; see also McKeever v. Block, 2 932 F.2d 795, 798 (9th Cir. 1991). To sustain an action under section 1983, a plaintiff must show (1) 3 that the conduct complained of was committed by a person acting under color of state law; and (2) that 4 the conduct deprived the plaintiff of a federal constitutional or statutory right.” Hydrick v. Hunter, 466 5 F.3d 676, 689 (9th Cir. 2006). 6 II. Instant Complaint 7 Plaintiff, who is incarcerated at Clark County Detention Center, has filed a complaint pursuant 8 to 42 U.S.C. § 1983, alleging that North Las Vegas Police Department and four defendant officers, 9 Michael Myers, Brian Sachs, Jason Arnong, and R. Parrish, violated his Fourth and Fourteenth 10 Amendment rights by using excessive force to search and seize items from his home and to arrest him 11 without probable cause to do so. 12 A. Fourth Amendment Claims 13 Plaintiff first alleges that the defendants violated his rights under the Fourth Amendment 14 by searching his home and arresting him without probable cause. As a general matter, the Fourth 15 Amendment protects “[t]he right of people to be secure in their persons, houses, papers, and effects, 16 against unreasonable search and seizure.” U.S. Const. Amend. IV. An arrest made without a warrant 17 requires a showing of probable cause. Gilker v. Baker, 576 F.2d 245, 246 (9th Cir.2001). An arrest made 18 without probable cause or other justification provides the basis for a claim of unlawful arrest under § 19 1983 as a violation of the Fourth Amendment. Dubner v. City of San Francisco, 266 F.3d 959 (9th 20 Cir.2001). A warrantless arrest is reasonable where the officer has probable cause to believe a crime 21 has been or is being committed. Devenpeck v. Alford, 543 U.S. 146, 152 (2004). “If an officer has 22 probable cause to believe that an individual has committed even a very minor criminal offense in his 23 presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of 24 Lago Vista, 532 U.S. 318, 354 (2001). 25 26 Here, plaintiff alleges that the defendants arrested him without a warrant or probable 3 1 cause. Plaintiff also asserts that the defendants’ search of his home and seizure of his personal property 2 violated the Fourth Amendment because defendants lacked probable cause or a warrant to search. Under 3 the Fourth Amendment, with some few specific exceptions, searches and seizures are unreasonable and 4 invalid unless based on probable cause and executed pursuant to a warrant. Katz v. United States, 389 5 U.S. 347, 357 (1967). Accepting plaintiff’s allegations as true, plaintiff has adequately alleged a claim 6 for violation of his Fourth Amendment right to be free from unreasonable search and seizure. Plaintiff’s 7 pendant state law claim for false imprisonment, based on the same set of facts, also may proceed. 8 Plaintiff next alleges that the defendants used excessive force in violation of the Fourth 9 Amendment when they used a taser and beat him while detaining him on April 2, 2009. The Fourth 10 Amendment protects the right of the people to be free from “unreasonable searches and seizures.” U.S. 11 Const. amend IV. “The ‘reasonableness’ inquiry in an excessive force case is an objective one: the 12 question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and 13 circumstances confronting them, without regard to underlying intent or motivation.” Graham v. Connor, 14 490 U.S. 386, 397 (1989) (citation omitted). In assessing reasonableness, the court should consider “the 15 severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers 16 or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Blanford 17 v. Sacramento County, 406 F.3d 1110, 1115 (9th Cir.2005) (citation omitted). “A police officer may 18 not seize an unarmed, nondangerous suspect by shooting him dead,” but if “there is probable cause to 19 believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not 20 constitutionally unreasonable to prevent escape by using deadly force.” Tennessee v. Garner, 471 U.S. 21 1, 11 (1985). 22 Plaintiff alleges that defendants Myers, Sachs, Arnong, and Parrish went to his home to 23 arrest him without a warrant or exigent circumstances, to cause unnecessary infliction of pain and false 24 imprisonment. Complaint (#1) at 10. In support of his claim, plaintiff purportedly quotes the following 25 from Myers’ police report: 26 4 1 2 Officer Sachs, Parrish and I approached the north door and announced “Chuchy” come to the door. Gonzalez walked to towards the door to within about a foot of me. He shouted ‘Fuck this shit, you need a warrant’ and began backing away into the house living room. I lunged forward and took a hold of him by shoulder and collar area. 3 Id. Myers purportedly deployed the taser and delivered three stuns. According to plaintiff, Sachs 4 reported that he kneeled down by plaintiff and struck him with a closed fist on his upper back, tricep, 5 and shoulder area about four to five times, and that plaintiff resisted momentarily until he was able to 6 pull plaintiff’s hands out. Accepting plaintiff’s allegations as true, he has adequately alleged a claim 7 for use of excessive force in violation of the Fourth Amendment. 8 B. Fourteenth Amendment Claims 9 The Fourteenth Amendment prohibits a state from depriving “any person of life, liberty, 10 or property, without due process of law.” U.S. Const. amend XIV, § 2. “[O]nly official conduct that 11 ‘shocks the conscience’ is cognizable as a due process violation.” Porter v. Osborn, 546 F.3d 1131, 12 1137 (9th Cir.2008) (citing County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). There are two 13 distinct standards used to prove that conduct “shocks the conscience”: (1) the official acted with 14 “deliberate indifference”; or (2) the official acted with a “purpose to harm ... for reasons unrelated to 15 legitimate law enforcement.” Id. Plaintiff’s Fourteenth Amendment claim is based on the events 16 underlying his Fourth Amendment excessive force claim, supra. Plaintiff alleges that the officers came 17 to his home “without search & arrest warrant and exigent circumstances ... in order to cause plaintiff 18 ‘unnecessary and wanton infliction of pain....’” Complaint (#1) at 10. Plaintiff further alleges “their 19 conduct of malicious and sadistic infliction of pain should not be able to escape liability where their 20 conduct clearly shock the conscience of the plaintiff. Id. Accepting plaintiff’s allegations as true, 21 plaintiff has adequately alleged a claim for violation of his due process rights under the Fourteenth 22 Amendment. 23 C. Municipal Liability 24 A local government may be sued under 42 U.S.C. § 1983 only “where execution of a 25 26 5 1 government’s policy or custom ... inflicts the injury” alleged. Monell v. Dep’t of Social Servcs., 436 2 U.S. 658, 694 (1978). Plaintiff has not alleged that the North Las Vegas Police Department’s custom, 3 policy, pattern or practice caused his injuries. He states only that it “failed to train its employees 4 adequately which caused plaintiff to [become] intentionally subject to malicious and sadistic behavior” 5 of the officers. Therefore, the North Las Vegas Police Department shall be dismissed without prejudice 6 as a named defendant in this action, subject to leave to amend. 7 Accordingly, 8 IT IS ORDERED that plaintiff’s application to proceed in forma pauperis (docket #1) without 9 having to prepay the full filing fee is GRANTED. Nevertheless, the full filing fee shall still be due, 10 pursuant to 28 U.S.C. § 1915, as amended by the Prisoner Litigation Reform Act of 1996. This order 11 granting in forma pauperis status shall not extend to the issuance of subpoenas at government expense. 12 IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by the Prisoner 13 Litigation Reform Act of 1996, the Clark County Detention Center shall immediately pay to the Clerk 14 of the United States District Court, District of Nevada, the $14.69 initial installment of the filing fee, 15 if sufficient funds exist in the account of Jesus Gonzalez, Detainee No. 1698873. Thereafter, the Clark 16 County Detention Center shall pay to the Clerk of the United States District Court, District of Nevada, 17 20% of the preceding month’s deposits to plaintiff’s (Jesus Gonzalez, Detainee No. 1698873) account 18 (in the months that the account exceeds $10.00) until the full $350.00 filing fee has been paid for this 19 action. If plaintiff should be transferred and become under the care of the Nevada Department of 20 Corrections, the CCDC Accounting Supervisor is directed to send a copy of this order to the attention 21 of the Chief of Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, 22 NV 89702, indicating the amount that plaintiff has paid toward his filing fee, so that funds may continue 23 to be deducted from plaintiffs account. The Clerk shall send a copy of this order to the CCDC 24 Accounting Supervisor, 330 S. Casino Center Blvd., Las Vegas, NV 89101. 25 26 IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise 6 1 unsuccessful, the full filing fee shall still be due, pursuant to 28 U.S.C. §1915, as amended by the 2 Prisoner Litigation Reform Act of 1996. 3 4 IT IS FURTHER ORDERED that the Clerk of Court shall detach and FILE the complaint. (Docket #1-1). 5 IT IS FURTHER ORDERED that the North Las Vegas Police Department is dismissed 6 without prejudice as a named defendant in this action, subject to leave to amend within thirty (30) days 7 of the entry of this order. 8 IT FURTHER IS ORDERED that, on any such amended complaint filed, plaintiff shall clearly 9 title the amended complaint as an amended complaint by placing the word “AMENDED” immediately 10 above “Civil Rights Complaint” on page 1 in the caption and shall place the docket number, 11 2:10-cv-01850-RLH-LRL, above the word “AMENDED” in the space for “Case No.” Under Local 12 Rule LR 15-1 any amended complaint filed must be complete in itself without reference to prior filings. 13 Thus, any allegations, parties, or requests for relief from prior papers that are not carried forward in the 14 amended complaint no longer will be before the Court. 15 IT IS FURTHER ORDERED that the Clerk of Court shall issue summons for defendants 16 Michael Myers, Brian Sachs, Jason Arnong, and R. Parrish, and deliver same, along with four copies 17 of the complaint, to the U.S. Marshal for service. The Clerk shall send to plaintiff four (4) USM-285 18 forms, one copy of the complaint and a copy of this order. Plaintiff shall have twenty (20) days in which 19 to furnish to the U.S. Marshal the required Forms USM-285. Within twenty (20) days after receiving 20 from the U.S. Marshal a copy of the Form USM-285 showing whether service has been accomplished, 21 plaintiff must file a notice with the court identifying which defendants were served and which were not 22 served, if any. If plaintiff wishes to have service again attempted on an unserved defendant(s), then a 23 motion must be filed with the court identifying the unserved defendant(s) and specifying a more detailed 24 name and/or address for said defendant(s), or whether some other manner of service should be 25 attempted. 26 7 1 IT IS FURTHER ORDERED that henceforth, plaintiff shall serve upon defendants, or, if an 2 appearance has been made by counsel, upon their attorney(s), a copy of every pleading, motion, or other 3 document submitted for consideration by the court. Plaintiff shall include with the original paper 4 submitted for filing a certificate stating the date that a true and correct copy of the document was mailed 5 to the defendants or counsel for defendants. If counsel has entered a notice of appearance, the plaintiff 6 shall direct service to the individual attorney named in the notice of appearance, at the address stated 7 therein. The court may disregard any paper received by a district judge or a magistrate judge that has 8 not been filed with the Clerk, and any paper which fails to include a certificate showing proper service. 9 DATED this 12th day of May, 2011. 10 11 12 LAWRENCE R. LEAVITT UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 8
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