Opinion
ORDER DISMISSING CASE WITH LEAVE TO FILE A SECOND AMENDED COMPLAINT (Case Number) AMENDED COMPLAINT
GARY S. AUSTIN, Magistrate Judge.
INTRODUCTION
Plaintiff, Elton Whittney Ervin, ("Plaintiff"), a state prisoner, appearing pro se and proceeding in forma pauperis, filed the instant complaint on June 29, 2012 in the United States District Court, Northern District of California. (Doc. 1). The case was transferred to this Court and assigned to the undersigned on November 5, 2012. In the initial complaint, Plaintiff alleged he was unlawfully detained by the police outside of his residence, illegally arrested, and unlawfully beaten. Plaintiff filed a civil rights action pursuant to 42 U.S.C. § 1983 based on cruel and unusual punishment. Plaintiff named several Defendants including: the Merced Police Department; Officer E. Chavez (Badge No. 156); Officer Adonte (Badge No. "Unknown"); Officer Salyer (Badge No. 191) and Officer Padgett (Badge No. 180) (Collectively, "Defendants").
On December 13, 2012, this Court issued a screening order giving Plaintiff leave to file a First Amended Complaint ("FAC"). (Doc. 15). Plaintiff filed a FAC on January 10, 2013. (Doc. 16). In the pleading, Plaintiff names Officer E. Chavez (Badge No. 156); Officer Adonte (Badge No. "Unknown"); Officer Salyer (Badge No. 191) and Officer Padgett (Badge No. 180) as Defendants. He alleges a violation of 42 U.S.C. § 1983, and contends that Defendants violated his "constitutional rights under the laws of the United States."
DISCUSSION
A. Screening Standard
Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "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. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
B. Plaintiff's Allegations
In the FAC, Plaintiff alleges that at approximately 10:30 p.m. on January 14, 2012, he arrived on the street outside of his residence in his vehicle. Plaintiff contends he was approached by a police officer later identified as Officer E. Chavez who ran up behind him and grabbed him by the neck. Another police officer approached him, began choking him, and told him to, "Spit it out." Shortly thereafter, an officer later identified as Officer Salyers told Officer Chavez to force a flashlight or baton into Plaintiff's mouth. Plaintiff contends he was pinned down by four officers. After this command, Officer Chavez allegedly forced a flashlight into Plaintiff's mouth. All of the officers then proceeded to unlawfully restrain Plaintiff and beat him.
As a result of this assault, Plaintiff alleges he contracted Hepatitis C and suffered chipped teeth, cuts, bruises to his lips, gums, tongue and inner mouth. He seeks injunctive relief, $500,000.00 in compensatory damages, $100,000.00 in punitive damages, $25,000.00 in nominal damages, and any other just relief.
C. Analysis of Plaintiff's Claims
1. Rule 8(a)
As Rule 8(a) states, a complaint must contain "a short and plain statement of the claim." The rule expresses the principle of notice-pleading, whereby the pleader need only give the opposing party fair notice of a claim. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Rule 8(a) does not require an elaborate recitation of every fact a plaintiff may ultimately rely upon at trial, but only a statement sufficient to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. at 47.
Plaintiff will be given an opportunity to amend portions of his complaint to comply with Rule 8(a). In the paragraphs that follow, the Court will provide Plaintiff with the legal standards that appear to apply to his claims. Plaintiff should carefully review the standards and amend only those claims that he believes, in good faith, are cognizable. Plaintiff is advised that his second amended complaint must contain all necessary allegations. Moreover, if Plaintiff wishes to allege causes of action, he must separate each claim and state facts in support of each individual claim against each defendant. Plaintiff has failed to do so in the first amended complaint.
2. Section 1983 Claims
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law]... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution... shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress. 42 U.S.C. § 1983...
The statute plainly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See, Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that "[a] person subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff is advised that to state a claim for relief under section 1983, plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights. This linkage requirement mandates that Plaintiff name an individual defendant for each alleged violation. However, the actions of each officer must be clearly outlined. Moreover, Plaintiff must specifically identify the constitutional violation alleged.
Here, Plaintiff's FAC does not allege a specific constitutional violation. Instead, Plaintiff only states that Defendants acts and omissions violated his constitutional rights under the laws of the United States. This is not sufficient to state a claim under 42 U.S.C. § 1983.
a. Fourth Amendment Claim
Plaintiff is advised again that a claim of excessive force in the course of making an arrest may be brought in a section 1983 claim. This claim is properly analyzed under the Fourth Amendment's objectively reasonableness standard. Scott v. Harris, 127 S.Ct. 1769 (2007); Graham v. Connor, 109 S.Ct. 1865 (1989). This assessment involves determining whether the force was objectively reasonable "in light of the facts and circumstances confronting the officer without regard to the underlying intent or motivation. Graham v. Connor, 109 S.Ct. at 1865. Determining whether the force used to effect a particular seizure is reasonable' under the Fourth Amendment requires a balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake. Gregory v. County of Maui, 523 F.3d 1103, 1106 (9th Cir. 2008) citing Graham v. Connor, 109 S.Ct. at 1865. The factors the court uses in this analysis are: 1) the severity of the crime at issue, 2) whether a suspect posses an immediate threat to the safety of the officer and others, and 3) whether a suspect resists arrest. Graham v. Connor, 109 S.Ct. at 1872; Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 921 (9th Cir. 2001).
b. Individual v. Official Capacities
It appears that Plaintiff is suing Defendants in both their individual and official capacity. In Will v. Michigan Department of State Police, 491 U.S. 58, 64-66 (1989), the Supreme Court held that states, state agencies, and state officials sued in their official capacities are not persons subject to civil rights suits under 42 U.S.C. § 1983. The Supreme Court reasoned that a suit against a state official in his or her official capacity is a suit against the official's office, and as such is no different from a suit against the state itself, which would be barred by the Eleventh Amendment. Id.; see also Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.1999); Stivers v. Pierce, 71 F.3d 732, 749 (9th Cir.1995). In addition, "the Eleventh Amendment bars actions against state officers sued in their official capacities for past alleged misconduct involving a complainant's federally protected rights, where the nature of the relief sought is retroactive, i.e., money damages." Bair v. Krug, 853 F.2d 672, 675 (9th Cir.1988). However, one exception to this rule is that the Eleventh Amendment does not bar suits for prospective declaratory or injunctive relief against state officials in their official capacity. Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007); Doe v. Lawrence Livermore Nat'l Lab, 131 F.3d 836, 839 (9th Cir. 1997); Armstrong v. Wilson, 124 F.3d 1019, 1025 (9th Cir. 1997). Since Plaintiff is seeking both monetary damages and injunctive relief, he shall keep these principles in mind when amending his complaint.
c. Punitive Damages
It appear Plaintiff would like to seek punitive damages. Plaintiff is advised that punitive damages are available in section 1983 actions. Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005) (citations omitted). "Punitive damages serve to punish the defendant for wrongful conduct and to deter the defendant and others from repeating the wrong." Dang, 422 F.3d at 810. The plaintiff has the burden of proving what, if any, punitive damages should be awarded by a preponderance of the evidence, Id. at 807, and an award of punitive damages is predicated on the plaintiff proving that the defendant's conduct was malicious, wanton, or oppressive, or in reckless disregard of the plaintiff's rights, Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625 (1986); Dang at 807-09.
The standard for awarding punitive damages under California law is similar. Under California law, punitive damages may be appropriate "where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice." Cal. Civ.Code § 3294. Malice may be shown where the defendant exhibits "the motive and willingness to vex, harass, annoy, or injure," Nolin v. Nat'l Convenience Stores, Inc., 95 Cal.App.3d 279, 285 (1979) (internal quotation marks omitted), or a "conscious disregard of the rights and safety of others," Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1000 (1993). A plaintiff may establish malice "by indirect evidence from which the jury may draw inferences." Taylor v. Superior Court, 24 Cal.3d 890, 894, 157 Cal.Rptr. 693, 598 P.2d 854 (1979).
Plaintiff shall consider this standard in drafting any amended pleading if he decides to pursue a punitive damages award.
d. Leave to Amend the Complaint
Although Plaintiff's complaint contains deficiencies as outlined above, the court will give Plaintiff one final opportunity to file an amended complaint. If plaintiff chooses to file a Second Amended Complaint, it should bear the docket number assigned in this case and be labeled "Second Amended Complaint." The clerk is directed to send Plaintiff a blank civil rights complaint form, which Plaintiff is encouraged to utilize. If Plaintiff decides to file an amended complaint, he is reminded that an amended complaint supercedes the original complaint, Lacey v. Maricopa County, ___ F.3d. ___, ___, Nos, 09-15806, 09-15703, 2012 WL 3711591, at *1, n.1 (9th Cir. Aug., 29, 2012)(en banc), and it must be complete in itself without reference to the prior or superceded pleading. Local Rule 220. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.
ORDER
For the reasons set forth above, it is HEREBY ORDERED that:
1) Plaintiff's FAC is dismissed with leave to amend;
2) The Clerk's Office shall send Plaintiff a civil rights complaint form;
3) Within thirty (30) days from the date of service of this order, Plaintiff must file a Second Amended Complaint curing the deficiencies identified by the Court in this order;
4) Plaintiff is advised that leave to amend is granted only for the claims addressed in this order; and
5) If Plaintiff fails to comply with this order, the action will be dismissed for failure to state a claim and for failure to follow this Court's order.
IT IS SO ORDERED.