Opinion
23-cv-04839-JD
08-21-2024
ESHAWN MAURICE HARRELL, Plaintiff, v. SAN JOSE POLICE DEPARTMENT, et al., Defendants.
ORDER REOPENING CASE AND RE SERVICE
RE: DKT. NO. 18
JAMES DONATO UNITED STATES DISTRICT JUDGE
Plaintiff, a former detainee, filed a pro se civil rights complaint under 42 U.S.C. § 1983. The case was closed after plaintiff failed to file an amended complaint. Plaintiff has filed an amended complaint and asks to reopen the case.
DISCUSSION
STANDARD OF REVIEW
Federal courts engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed factual allegations, . . . a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do .... Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” standard of Twombly: “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
LEGAL CLAIMS
Plaintiff states that police officers shot him and released a police dog that attacked him. An allegation of the use of excessive force by a law enforcement officer in effectuating an arrest states a valid claim under 42 U.S.C. § 1983. See Rutherford v. City of Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986), overruled on other grounds by Graham v. Connor, 490 U.S. 386 (1989); see also Byrd v. Phoenix Police Dep't, 885 F.3d 639, 641-42 (9th Cir. 2018) (pro se allegations that police officers “beat the crap out of” plaintiff and caused him severe injury enough to support a legally cognizable claim under § 1983). Excessive force claims which arise in the context of an arrest or investigatory stop of a free citizen are analyzed under the Fourth Amendment reasonableness standard. See Graham, 490 U.S. at 394-95.
The Fourth Amendment reasonableness analysis applies to any arrest situation where force is used, whether it involves physical restraint, use of a baton, use of a gun, or use of a dog. See Hernandez v. Town of Gilbert, 989 F.3d 739, 744 (9th Cir. 2021) (“it's well-settled that the use of a police dog is subject to excessive force analysis”). This analysis also applies where there has not been a formal arrest, but there has been a “seizure” within the meaning of the Fourth Amendment, i.e., the suspect reasonably believes he is not free to leave. Robinson v. Solano, 278 F.3d 1007, 1013-14 (9th Cir. 2002) (applying reasonableness analysis to suspect detained at gunpoint, handcuffed and placed in squad car).
The Fourth Amendment also requires police officers to seek medical attention for a detainee who has been injured during detention. Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1098-99 (9th Cir. 2006); Ostling v. City of Bainbridge Island, 872 F.Supp.2d 1117, 1129 (W.D. Wash. 2012). Courts analyze claims for failure to render post-arrest medical aid under the Fourth Amendment's reasonableness standard. Ostling, 872 F.Supp.2d at 1129. But “[j]ust as the Fourth Amendment does not require a police officer to use the least intrusive method of arrest, neither does it require an officer to provide what hindsight reveals to be the most effective medical care for an arrested suspect.” Tatum, 441 F.3d at 1098 (internal citation omitted). A police officer who promptly summons medical assistance acts reasonably under the Fourth Amendment. Id. at 1099.
In the original complaint, plaintiff stated that on November 27, 2020, he was in a fight with another person, when San Jose Police officers fficers arrived. Officers shot plaintiff and released a K9 police dog that bit his leg. Plaintiff stated that all charges were dropped with respect to this incident. Plaintiff did not identify a specific defendant, so the complaint was dismissed with leave to amend.
In the amended complaint, plaintiff states that Officer Markel shot him twice in the right hip, even though plaintiff did not have a gun and was already injured from the fight. Officer Orlando released the K9 police dog which attacked plaintiff even though plaintiff was not posing a threat. While plaintiff was on the ground being bitten by the police dog, defendants put their knees in his back. Plaintiff also alleges that these defendants failed to promptly request medical attention. These allegations are sufficient to proceed against Markel and Orlando for claims of excessive force and failing to obtaining medical care.
CONCLUSION
1. Plaintiff's request to reopen this case (Dkt. No. 18) is granted and this case is reopened.
2. The Clerk will issue a summons and the United States Marshal will serve, without prepayment of fees, copies of the amended complaint (Dkt. No. 19) with attachments and copies of this order on San Jose Police Officers Jeremey Markel #4464 and Brandon Orlando #3859.
3. To expedite the resolution of this case, the Court orders:
a. No later than fifty-six days from the date of service, defendant will file a motion for summary judgment or other dispositive motion. The motion will be supported by adequate factual documentation and will conform in all respects to Federal Rule of Civil Procedure 56, and will include as exhibits all records and incident reports stemming from the events at issue. If defendant is of the opinion that this case cannot be resolved by summary judgment, he will so inform the Court prior to the date his summary judgment motion is due. All papers filed with the Court will be promptly served on the plaintiff.
b. At the time the dispositive motion is served, defendant will also serve, on a separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952, 953954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices must be given at the time motion for summary judgment or motion to dismiss for nonexhaustion is filed, not earlier); Rand at 960 (separate paper requirement).
c. Plaintiff's opposition to the dispositive motion, if any, will be filed with the Court and served upon defendant no later than thirty days from the date the motion was served upon him. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).
If defendant files a motion for summary judgment claiming that plaintiff failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” which is provided to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003).
d. If defendant wishes to file a reply brief, they will do so no later than fifteen days after the opposition is served upon him.
e. The motion will be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the Court so orders at a later date.
4. All communications by plaintiff with the Court must be served on defendant, or defendant's counsel once counsel has been designated, by mailing a true copy of the document to defendant or defendant's counsel.
5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the parties may conduct discovery.
6. It is plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court informed of any change of address by filing a separate paper with the clerk headed “Notice of Change of Address.” He also must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
NOTICE -- WARNING (SUMMARY JUDGMENT)
If defendants move for summary judgment, they are seeking to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact--that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial.
NOTICE -- WARNING (EXHAUSTION)
If defendants file a motion for summary judgment for failure to exhaust, they are seeking to have your case dismissed. If the motion is granted it will end your case.
You have the right to present any evidence you may have which tends to show that you did exhaust your administrative remedies. Such evidence may be in the form of declarations (statements signed under penalty of perjury) or authenticated documents, that is, documents accompanied by a declaration showing where they came from and why they are authentic, or other sworn papers, such as answers to interrogatories or depositions.
If defendants file a motion for summary judgment for failure to exhaust and it is granted, your case will be dismissed and there will be no trial.