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Smith v. City of San Pablo, California

United States District Court, N.D. California
May 5, 2000
C 99-3874 JCS(PR) (N.D. Cal. May. 5, 2000)

Opinion

C 99-3874 JCS(PR)

May 5, 2000


Order Finding Some Claims Cognizable, Dismissing Some Claims, and Dismissing Some Claims With Leave to Amend


I. INTRODUCTION

Plaintiff Percy Lewis Smith is a pretrial detainee who currently is incarcerated at the Lake County Jail. He filed this pro se civil rights complaint under 42 U.S.C. § 1983 in which he seeks leave to proceed in forma pauperis. The complaint was assigned to a United States Magistrate Judge pursuant to General Order 44(N)(1) and Smith consented to the jurisdiction of the undersigned. See 28 U.S.C. § 636(c). Having obtained Smith's consent, this Court must review the allegations in the complaint to determine whether it must be dismissed prior to service. Under 28 U.S.C. § 1915 and § 1915A a federal court must engage in a preliminary screening of cases in which prisoners and parties proceeding in forma pauperis seek redress from a governmental entity or officer, or employee of a governmental entity. See id. §§ 1915(e)(2), 1915A(a). 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. See id. §§ 1915(e)(2), 1915A(b)(1),(2). For the reasons set forth below, this Court finds that Smith's complaint presents some cognizable claims, some claims which must be dismissed with leave to amend, and some claims which must be dismissed in their entirety.

Although a magistrate judge does not have jurisdiction over an action unless all parties have consented to it, this Court does not require the consent of the Defendants in order to properly dismiss this action because Defendants have not been served, and, as a result, they are not parties. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (holding that magistrate judge had jurisdiction to dismiss prison inmate's action under 42 U.S.C. § 1983 as frivolous without consent of defendants because defendants had not been served yet and therefore were not parties); see also United States v. Real Property, 135 F.3d 1212, 1217 (9th Cir. 1998) (holding that magistrate judge had jurisdiction to enter default judgment in in rem forfeiture action even though property owner had not consented to it because 28 U.S.C. § 636(c)(1) only requires the consent of the parties and the property owner, having failed to comply with the applicable filing requirements, was not a party).

II. BACKGROUND

In his complaint, Smith alleges the following:

On September 17, 1998 in San Pablo Smith was approached by police officers Weaver and Bray who placed him under arrest and proceeded to physically assault him, spray him with pepper spray, and pull a knife on him without cause. Smith was transported by AMR Ambulance to the San Pablo Doctors Hospital where blood and urine samples were extracted from him without his consent. Smith was charged with resisting arrest and being under the influence of a controlled substance. Smith does not say whether he was convicted on these charges. He was released from the Contra Costa County Jail on or about September 30, 1998.

On February 1, 1999 Smith was stopped in Alameda County and found to have an outstanding warrant for his arrest from Lake County on charges of failing to register as a sex offender. Smith currently is facing these charges in Lake County Superior Court. He alleges that the charges are unsupported and that early in the proceedings his public defender, Stephen Carter, did not provide him with adequate representation. Carter subsequently was removed from the case following a Marsden hearing on June 7, 1999.

Smith seeks declaratory and injunctive relief and damages. He names as defendants the City of San Pablo; the San Pablo Police Department; San Pablo Police Officers Weaver, Bray and Foisie; the AMR Ambulance Company; John Doe; San Pablo Doctors Medical Center; Nurse Barbara Center; Joel Chiu, M.D.; attorney Stephen Carter; and the Lake County Sheriffs Department.

III. STANDARD OF REVIEW

A constitutionally cognizable claim under 42 U.S.C. § 1983 must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

Federal courts must construe pro se complaints liberally. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972); Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). A pro se complaint therefore should not be dismissed if it states a claim under any legal theory, even if the plaintiff erroneously relies on a different legal theory. See, e.g., Haddock v. Bd. of Dental Examiners of Cal., 777 F.2d 462, 464-65 (9th Cir. 1985). But courts should not undertake to infer another cause of action when a pro se complaint clearly states a claim under a specified cause of action. See Bogovich v. Sandoval, No. 96-16528, slip op. 10093, 10097 (9th Cir. Aug. 30, 1999). The party who brings a suit is master to decide what law he will rely upon. See id.

IV. ANALYSIS A. Use of Excessive Force

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). Such claims are analyzed under the Fourth Amendment reasonableness standard. See Graham v. Connor, 490 U.S. 386, 394-95 (1989); Forrester v. City of San Diego, 25 F.3d 804, 806 (9th Cir. 1994), cert. denied, 513 U.S. 1152 (1995). Smith's allegations that officers Weaver and Bray used unreasonable and unlawful force against him in effectuating his arrest state a cognizable Fourth Amendment claim for relief against these two defendants.

B. Forced Blood and Urine Samples

Smith alleges that Nurse Center and Dr. Chiu from the San Pablo Doctors Medical Center forcibly removed blood and urine samples from him without his consent to determine whether he was under the influence of drugs or alcohol. The sample results then were used to charge Smith with being under the influence of a controlled substance. Smith does not say whether he was convicted on this charge.

Blood and urine tests are searches subject to the constraints of the Fourth Amendment. See Ellis v. City of San Diego, 176 F.3d 1183, 1191 (9th Cir. 1999) (citing Schmerber v. California, 384 U.S. 757, 766 (1966)). Warrantless compulsory tests are unreasonable unless supported both by probable cause and exigent circumstances, see id. at 1191-92, and even if the search meets these criteria, it still is unreasonable if the degree of force employed to carry it out is excessive, see id. at 1192. Smith's allegations present a cognizable Fourth Amendment claim for relief against defendants Center and Chiu.

It is not clear from the allegations in the complaint whether Center and Chiu, who are employees at the San Pablo Doctors Medical Center, are state actors within the meaning of § 1983. A private individual does not act under color of state law, an essential element of a § 1983 action. See Gomez v. Toledo, 446 U.S. 635, 640 (1980). Action taken by private individuals may be under color of state law if there is significant state involvement in the action, however. See Johnson v. Knowles, 113 F.3d 1114, 1118 (9th Cir. 1997); see also United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir. 1994) (4th Amendment implicated where private party acts as instrument or agent of state in effecting a search or seizure). Because it is premature to determine at this point whether Center and Chiu are state or private actors for the purposes of this action the claims against them may proceed.

C. Fabricated Charges and Ongoing State Criminal Proceedings

Smith alleges that he currently is facing fabricated criminal charges in Lake County and that early in the proceedings his public defender, Stephen Carter, did not provide him with adequate representation. Carter later was removed from Smith's case following a Marsden hearing. It is not entirely clear from the complaint what type of relief Smith seeks with respect to this claim. Nonetheless, whether he seeks declaratory or injunctive relief or damages the claim must be dismissed.

1. Declaratory or injunctive relief

Under principles of comity and federalism, a federal court should not interfere with ongoing state criminal proceedings by granting injunctive or declaratory relief absent extraordinary circumstances. See Younger v. Harris, 401 U.S. 37, 43-46 (1971). Younger abstention is required when: (1) state proceedings, judicial in nature, are pending; (2) the state proceedings involve important state interests; and (3) the state proceedings afford adequate opportunity to raise the constitutional issue. See Dubinka v. Judges of the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994). The rationale of Younger applies throughout appellate proceedings, requiring that state appellate review of a state court judgment be exhausted before federal court intervention is permitted. See Huffman v. Pursue, Ltd., 420 U.S. 592, 607-11 (1975); Dubinka, 23 F.3d at 223 (even if criminal trials were completed at time of abstention decision, state court proceedings still considered pending). Where a district court finds Younger abstention appropriate as to a request for declaratory or injunctive relief, the court may not retain jurisdiction and must dismiss the action. See Beltran v. California, 871 F.2d 777, 782 (9th Cir. 1988).

This Court finds that Younger abstention is appropriate in this case: Smith is involved in ongoing state criminal proceedings; the proceedings involve the important state interest of California's enforcement of its criminal laws; and the proceedings afford an adequate opportunity for Smith to raise any constitutional challenges he may have to the proceedings.

Accordingly, the claims for declaratory or injunctive relief with respect to the Lake County Superior Court proceedings hereby are DISMISSED.

2. Damages

Smith names attorney Carter as a defendant and apparently seeks monetary damages from Carter for inadequate representation. Public defenders acting as attorneys for criminal defendants do not act under color of state law, an essential element of an action under § 1983. See Tower v. Glover, 467 U.S. 914, 919-920 (1984); Polk County v. Dodson, 454 U.S. 312, 317-25 (1981). Therefore, Smith cannot sue Carter under § 1983. Accordingly, Smith's damages claim against Carter is DISMISSED.

D. Remaining Defendants 1. Governmental defendants

Smith names as defendants the City of San Pablo, the San Pablo Police Department, and the Lake County Sheriffs Department. Local governments are "persons" subject to liability under 42 U.S.C. § 1983 where official policy or custom causes a constitutional tort, see Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978); however, a city or county may not be held vicariously liable for the unconstitutional acts of its employees under the theory of respondeat superior, see Board of County Comm'rs v. Brown, 520 U.S. 397, 402 (1997). While allegations of municipal liability do not require a heightened pleading standard, see Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168-69 (1993), Smith makes no allegations in his complaint that the conduct of individual employees who are defendants in this action conformed to official policy, conduct or practice of either the City of San Pablo, the San Pablo Police Department, or the Lake County Sheriffs Department, see Evans v. McKay, 869 F.2d 1341, 1349 (9th Cir. 1989). Accordingly, the claims against these defendants are DISMISSED. Smith may, however, AMEND his complaint to cure these pleading deficiencies, as set forth below.

2. Individual and private defendants

Smith names as defendants officer Foisie, John Doe, and Mayor John Doe. None of these defendants are linked to the allegations in Smith's complaint, however. Liability may be imposed on a defendant under § 1983 only if the plaintiff can show that the defendant proximately caused the deprivation of a federally protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). Sweeping conclusory allegations will not suffice; the plaintiff must instead "set forth specific facts as to each individual defendant's" deprivation of protected rights. Leer, 844 F.2d at 634.

Further, where a Doe defendant is concerned, the plaintiff must discover his identity before claims against him can proceed. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).

Because these named defendants are not adequately linked to Smith's claims, they are DISMISSED. Smith may, however, AMEND his complaint to cure these pleading deficiencies, as set forth below.

3. Private companies

Smith names as defendants the AMR Ambulance Company and San Pablo Doctors Medical Center. However, he has not identified any wrongdoing on the part of these defendants.

Moreover, to the extent that his claim against the San Pablo Doctors Medical Center is based on the conduct of Nurse Center and Dr. Chiu at the Medical Center, that conduct alone is not enough to establish liability. Rather, for purposes of § 1983 liability, Smith must show both that the San Pablo Doctors Medical Center is a state actor, see West v. Atkins, 487 U.S. 42, 48 (1988), and that Nurse Center and Dr. Chiu committed the alleged constitutional violations according to the official policy or custom of the Medical Center, see Monell, 436 U.S. at 690.

Defendants AMR Ambulance Company and San Pablo Doctors Hospital accordingly are DISMISSED from this action. Smith may, however AMEND his complaint to cure these pleading deficiencies, as set forth below.

V. CONCLUSION

For the foregoing reasons, this Court orders as follows:

1. Smith's request to proceed in forma pauperis is GRANTED.

2. Smith's declaratory/injunctive relief and damages claims pertaining to his ongoing state criminal proceedings in Lake County Superior Court and against defendant Stephen Carter are DISMISSED.

3. All claims against defendants the City of San Pablo, the San Pablo Police Department, the Lake County Sheriffs Department, officer Foisie, Mayor John Doe, John Doe, the AMR Ambulance Company, and the San Pablo Doctors Medical Center are DISMISSED WITH LEAVE TO AMEND, as set forth above, within thirty (30) days from the date of this order. The amendment must include the caption and civil case number used in this order and the words AMENDMENT TO COMPLAINT on the first page. Failure to amend within the designated time will result in the dismissal of the claims against these defendants with prejudice.

If Smith is able to link defendants Mayor John Doe and John Doe to his alleged injuries in his first amended complaint, he later may move to amend his complaint again once he has discovered their identities. If, however, he is unable even to link these defendants to his allegations in his first amended complaint they will be dismissed from this action with prejudice.

4. Smith presents cognizable Fourth Amendment claims for the use of excessive force against defendants Weaver and Bray, and for unreasonable blood and urine tests against defendants Center and Chiu, as set forth above. For reasons of judicial economy, service of these claims will be held until Smith files an amendment to the complaint so that all claims can proceed together. If Smith fails to timely amend his complaint, or if the amended claims are dismissed after review, the cognizable claims nonetheless will be ordered served.

5. All communications by Smith with the court must be served on defendants, or defendants' counsel once counsel has been designated, by mailing a true copy of the document to defendants or defendants' counsel.

6. It is Smith's responsibility to prosecute this case. Smith must keep the court informed of any change of address and 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.


Summaries of

Smith v. City of San Pablo, California

United States District Court, N.D. California
May 5, 2000
C 99-3874 JCS(PR) (N.D. Cal. May. 5, 2000)
Case details for

Smith v. City of San Pablo, California

Case Details

Full title:PERCY LEWIS SMITH, Plaintiff, vs. CITY OF SAN PABLO, CALIFORNIA, et al.…

Court:United States District Court, N.D. California

Date published: May 5, 2000

Citations

C 99-3874 JCS(PR) (N.D. Cal. May. 5, 2000)