Opinion
C22-5526-RJB-SKV
10-11-2022
EDWARD J. STEINER, Plaintiff, v. BRENT KEMPSTER, et al., Defendant.
REPORT AND RECOMMENDATION
S. KATE VAUGHAN, UNITED STATES MAGISTRATE JUDGE
INTRODUCTION AND BACKGROUND
This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated at the Washington State Penitentiary, proceeds pro se and in forma pauperis (IFP), and brings claims for excessive force and conspiracy. He names one tribal police officer, Brent Kempster, and two private citizens, April Blair-Pullen and Nicole Wheeler, as defendants. Plaintiff submitted an original proposed complaint to the Court for filing on July 20, 2022. See Dkt. 1-1. The Court screened Plaintiff's complaint in accordance with 28 U.S.C. § 1915A(a), identified deficiencies in Plaintiff's pleading, and directed Plaintiff to file an amended complaint correcting the noted deficiencies within 30 days of the Court's Order. Dkt. 6.
Subsequently, on September 16, 2022, Plaintiff submitted an amended complaint to the Court for review. Dkt. 7. The amended complaint alleges Defendants Blair-Pullen and Wheeler conspired with Defendant Kempster following Defendant Kempster's unconstitutional use of excessive force when arresting Plaintiff. However, because Plaintiff alleges no facts indicating that either Defendant conspired with Defendant Kempster to violate Plaintiff's constitutional rights, the Court finds he has failed to state a § 1983 claim against them, and recommends they be dismissed from this lawsuit without prejudice.
DISCUSSION
Under the Prison Litigation Reform Act of 1996, the Court is required to screen complaints brought by prisoners seeking relief against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court must “dismiss the complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2); see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
To state a claim for relief under § 1983, a plaintiff must show: (1) he suffered a violation of rights protected by the Constitution or created by federal statute, and (2) the violation was proximately caused by a person acting under color of state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To satisfy the second prong, a plaintiff must allege facts showing how individually named defendants caused, or personally participated in causing, the harm alleged in the complaint. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981). Further, the requirement that a defendant must have committed the alleged harm while acting under color of state law is satisfied when the defendant “may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982); see also Evans v. McKay, 869 F.2d 1341, 1347 (9th Cir. 1989).
“[P]rivate parties who act in concert with officers of the state are acting under the color of state law within the meaning of section 1983.” Evans, 869 F.2d at 1348 (citing Lugar, 457 U.S. at 930-31). In other words, a private individual may be liable under § 1983 if he or she conspired or entered into joint action with a state actor. Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 783 (9th Cir.), cert. denied, 534 U.S. 1020 (2001). To prove a conspiracy between defendants under § 1983, a plaintiff must show “an agreement or ‘meeting of the minds' to violate constitutional rights.” United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989) (quotations omitted). “‘To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy.'” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (quoting United Steelworkers, 865 F.2d at 1541).
The Ninth Circuit requires a plaintiff alleging a conspiracy to violate civil rights to “state specific facts to support the existence of the claimed conspiracy.” Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 929 (9th Cir. 2004) (internal quotation marks and citation omitted) (discussing conspiracy claim under § 1985); Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (“To state a claim for conspiracy to violate one's constitutional rights under section 1983, the plaintiff must state specific facts to support the existence of the claimed conspiracy.”). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
The amended complaint alleges Defendants Blair-Pullen and Wheeler conspired with Defendant Kempster relative to his alleged violation of Plaintiff's Fourth Amendment rights by ignoring Plaintiff inside the store where the alleged incident of excessive force occurred; falsely representing that the incident occurred outside and that the outside security cameras did not work; denying Plaintiff video footage of the incident and failing to retrieve additional footage of the incident; failing to call for medical assistance after the incident; not assisting Plaintiff with his injuries even though they had first aid kits; and all staying inside the store after the incident while Plaintiff sat handcuffed alone outside for two hours. See Dkt. 7 at 6-8. While these allegations may indicate that Defendants Blair-Pullen and Wheeler conspired with Defendant Kempster to cover up the alleged constitutional violation, they fail to demonstrate an agreement or meeting of the minds between the Defendants to violate Plaintiff's constitutional rights in the first place. While Plaintiff uses phrases like “conspired,” “meeting of the minds,” “in concert,” and “etering [sic] into joint action,” he does not provide any specific facts showing that any of the Defendants actually agreed to commit the alleged Fourth Amendment violation, and there is no indication that any such agreement existed.
Further, allegations supporting a finding that a defendant engaged in a “cover-up of [constitutional] violations” may only state a federally cognizable § 1983 claim if the defendant's “actions can be causally connected to a failure to succeed in [a] lawsuit.” See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 625 (9th Cir. 1988); see also Mahone v. Pierce Cnty., No. C14-5665 BHS-KLS, 2015 WL 9311608, at *3 (W.D. Wash. Nov. 20, 2015), report and recommendation adopted, No. C14-5665-BHS-KLS, 2015 WL 9303485 (W.D. Wash. Dec. 22, 2015); D. R. v. Contra Costa Cnty. CA, No. 19-CV-07152-MMC, 2020 WL 5526604, at *7 (N.D. Cal. Sept. 15, 2020). Such a claim, however, is subject to dismissal without prejudice where the “ultimate resolution of [a pending] suit remains in doubt.” See Karim-Panahi, 839 F.2d at 625 . Here, the instant action remains pending, meaning any potential cover up claim brought by Plaintiff under § 1983 is “not ripe for judicial consideration.” See id. (holding plaintiff's claim that defendants engaged in a “cover-up” of Fourth Amendment violations was “not ripe” where claims alleging Fourth Amendment violations were pending resolution).
Accordingly, Plaintiff has failed to state a § 1983 claim against Defendants Blair-Pullen and Wheeler, and the Court finds that Plaintiff's claims against both Defendants should be dismissed without prejudice pursuant to 28 U.S.C. § 1915A(b).
CONCLUSION
For the foregoing reasons, the Court recommends that Plaintiff's amended complaint and this action be dismissed without prejudice under 28 U.S.C. § 1915A(b) as to Defendants April Blair-Pullen and Nicole Wheeler. A proposed Order accompanies this Report and Recommendation.
OBJECTIONS
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within twenty-one (21) days of the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar for the third Friday after they are filed. Responses to objections may be filed within fourteen (14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on November 4, 2022.