Opinion
2:22-cv-00823-JDP (PC)
02-22-2023
PETER JON ELLIS, Plaintiff, v. COUNTY OF EL DORADO, et al., Defendants.
SCREENING ORDER THAT PLAINTIFF:
(1) PROCEED ONLY WITH HIS FOURTH AMENDMENT EXCESSIVE FORCE CLAIM AGAINST DEFENDANT ANDY LITZIUS
(2) DELAY SERVING ANY DEFENDANT AND FILE AN AMENDED COMPLAINT
ECF NO. 16
THIRTY-DAY DEADLINE
ORDER DENYING PLAINTIFF'S
MOTION FOR EXTENSION OF TIME AS MOOT
ECF NO. 17
JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE
Plaintiff, proceeding pro se, alleges that defendant Andy Litzius, a Placerville police officer, violated his rights by arresting him on a warrant that had been recalled. He also claims that Litzius used excessive force during the arrest by tasing him after his hands were up. Finally, plaintiff alleges that after he was released Litzius continued to harass him by arresting him for problems “unrelated to criminal activity.” ECF No. 16 at 7. Plaintiff's excessive force claims are suitable to proceed; his others are not. He may either proceed only with his excessive force claim or delay service and file another amended complaint. I will deny plaintiff's motion for extension of time as moot, ECF No. 17, since his amended complaint is timely filed.
Screening Order
I. Screening and Pleading Requirements
A federal court must screen the complaint of any claimant seeking permission to proceed in forma pauperis. See 28 U.S.C. § 1915(e). The court must identify any cognizable claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id.
A complaint must contain a short and plain statement that plaintiff is entitled to relief, Fed.R.Civ.P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its face,” BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not identify “a precise legal theory.” Kobold v. Good Samaritan Reg'l Med. Ctr., 832 F.3d 1024, 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”-a set of “allegations that give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 n.2 (9th Cir. 2006) (en banc) (citations omitted).
The court must construe a pro se litigant's complaint liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant's complaint “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.'” Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
II. Analysis
Plaintiff alleges that on an unspecified date the El Dorado County Superior Court issued a warrant for his arrest. ECF No. 16 at 5. Plaintiff was arrested, taken before a superior court judge, and the warrant was to have been recalled at the termination of those proceedings. Id. Due to an error, however, the warrant remained active. Id. At some point after plaintiff's release, he was detained by defendant Litzius based on the still-active warrant. Id. During the arrest, plaintiff alleges that Litzius used excessive force against him by tasing him after his hands were raised. Id. at 6. Finally, plaintiff alleges that after he was released again and the warrant was recalled Litizius continued to harass him by arresting him on certain unspecified occasions based on pretexts. Id. at 7.
Plaintiff's allegations regarding the invalidity of his warrant are insufficient to state a claim against Litzius. The Fourth Amendment prohibits a government official from detaining a person without probable cause. Manuel v. City of Joliet, Ill., 580 U.S. 357, 367 (2017). “Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested.” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007). Here, plaintiff appears to concede that an error in discharging the warrant caused it to appear as active to Litizius. Thus, a person of reasonable caution would have had reason to believe that plaintiff had committed an offense.
The allegations of excessive force, by contrast, are suitable to proceed. Plaintiff alleges that, despite having his hands raised in a non-threatening position, Litizius tased him. ECF No. 16 at 6. Construed liberally, these allegations are viable. There are no “per se rules in the Fourth Amendment excessive force context” and the fact-intensive determination of whether the use of force was reasonable weighs in favor of allowing this claim to proceed past screening. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011).
Finally, plaintiff's claim that Litzius harassed him on other occasions is insufficiently plead. These allegations do not include factual context. It is impossible even to tell how many instances of harassment are at issue. Thus, these claims do not meet federal pleading standards. See Marino v. Classic Auto Refinishing, Inc., 37 F.3d 1354, 1357 (9th Cir. 1994) (“The purpose of notice pleading is to give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.”) (quoting Conley v. Gibson, 355 U.S. 41, 47, 2 L.Ed.2d 80, 78 S.Ct. 99 (1957)).
Plaintiff may either proceed only with the cognizable claim identified above or he may delay service and file an amended complaint. If plaintiff decides to file an amended complaint, the amended complaint will supersede the current complaint. See Lacey v. Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc). This means that the amended complaint will need to be complete on its face without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is filed, the current complaint no longer serves any function. Therefore, in an amended complaint, as in an original complaint, plaintiff will need to assert each claim and allege each defendant's involvement in sufficient detail. The amended complaint should be titled “Second Amended Complaint” and refer to the appropriate case number.
Accordingly, it is ORDERED that:
1. Within thirty days from the service of this order, plaintiff must either advise that he wishes to proceed only with his Fourth Amendment excessive force claim against defendant Litzius or delay service and file an amended complaint.
2. Failure to comply with this order may result in the dismissal of this action.
3. The Clerk of Court is directed to send plaintiff a complaint form.
4. Plaintiff's motion for extension of time, ECF No. 17, is DENIED as moot.
IT IS SO ORDERED.