“[W]e are not required to accept as true 10 conclusory allegations which are contradicted by documents referred to in the complaint.”
How later courts described this case
- “[W]e are not required to accept as true 10 conclusory allegations which are contradicted by documents referred to in the complaint.”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 EASTERN DISTRICT OF CALIFORNIA
6
7 GEORGETTE G. PURNELL, Case No. 1:19-cv-00210-DAD-BAM
8 Plaintiff, SCREENING ORDER GRANTING
PLAINTIFF LEAVE TO FILE AN
9 v. AMENDED COMPLAINT
10 R.T. MORA, et al., (Doc. No. 1)
11 Defendants. THIRTY (30) DAY DEADLINE
12
13 Plaintiff Georgette G. Purnell (“Plaintiff”), proceeding pro se and in forma pauperis, filed
14 this action against Fresno County Police Officers R.T. Mora, Hodge, N. Cruz, and B. Phelps
15 (“Defendants”), alleging violation of her civil rights under 42 U.S.C. § 1983. (Doc. Nos. 1, 5-6.)
16 Plaintiff’s complaint is currently before the Court for screening.
17 I. Screening Requirement and Standard
18 The Court screens complaints brought by litigants proceeding pro se and in forma
19 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to
20 dismissal if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or
21 seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(b).
22 A complaint must contain “a short and plain statement of the claim showing that the
23 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
24 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
25 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
26 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as
27 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,
28 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
1 To survive screening, Plaintiff’s claims must be facially plausible, which requires
2 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable
3 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret
4 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully
5 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility
6 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
7 II. Plaintiff’s Allegations
8 Plaintiff’s complaint alleges that she was stopped by Officer R.T. Mora while driving her
9 car in Fresno, California on August 30, 2018. During the stop, Officer Mora questioned Plaintiff
10 regarding her license plate. In response, Plaintiff attempted to produce documents from her
11 vehicle purportedly showing that another officer had recently informed her that she had six
12 months to take care of her registration and/or license plate. Officer Mora “viciously” knocked her
13 documents from her hands and used a racial slur, indicating that he did not want to see Plaintiff’s
14 documents. Plaintiff alleges that Officer Mora then grabbed her arm and “viciously twisted it to
15 the point of . . . excruciating pain[]” and Plaintiff cried out. Officers Cruz, Phelps, and Hodge, as
16 well as non-defendant Officer Ruiz, were allegedly present during these events and did nothing to
17 stop Officer Mora. Paramedics were called and Plaintiff was treated on the scene for a sprained
18 arm. Plaintiff alleges that she continues to feel pain in her arm and has also experienced sleepless
19 nights and loss of appetite since the incident. The exhibits to the complaint indicate that, at the
20 time of the underlying incident, Officer Cruz issued notices to appear to Plaintiff for driving with
21 an expired registration in violation of California Vehicle Code § 4000(a)(1) and resisting arrest in
22 violation of California Penal Code § 148.
23 Plaintiff’s complaint sets forth claims under 42 U.S.C. § 1983 for violation of her “right to
24 be free from excessive force by law enforcement,” her “right to be free from racial insults,” and
25 “4th Amendment United States Constitution Prohibition.” Plaintiff seeks compensatory damages
26 in the amount of one million dollars from each Defendant, punitive damages in the amount of one
27 million dollars from each Defendant, as well as the imposition of “necessary measures such as
28 training to ensure these illegal acts does not ever occur again.”
1 III. Discussion
2 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to
3 state a cognizable claim. As Plaintiff is proceeding pro se, she will be granted leave to amend her
4 complaint to cure the identified deficiencies to the extent she can do so in good faith. To assist
5 Plaintiff, the Court provides the pleading and legal standards that appear relevant to her
6 allegations.
7 A. Federal Rule of Civil Procedure 8
8 Pursuant to Rule 8(a) of the Federal Rules of Civil Procedure, the complaint or
9 amended complaint must contain a “short and plain statement of the claim showing that the
10 pleader is entitled to relief.” Although the Federal Rules adopt a flexible pleading policy,
11 a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones
12 v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir.1984). While detailed allegations are
13 not required, a plaintiff must set forth “the grounds of his entitlement to relief[,]” which “requires
14 more than labels and conclusions, and a formulaic recitation of the elements of a cause of
15 action....” Twombly, 550 U.S. at 555.
16 Plaintiff's complaint is short but it is unclear which claim is asserted against which
17 Defendant. The complaint does not set forth the factual basis for each of the asserted claims with
18 respect to each Defendant. Moreover, the nature of the claims Plaintiff intends to pursue are
19 unclear. For example, in example, addition to her claim for violation of “the right to be free from
20 excessive force by law enforcement[,]” Plaintiff also alleges a violation of her rights under “4th
21 Amendment United States Constitution Prohibition.” (Doc. No. 1 at 3.) It is not clear if these
22 claims are duplicative of each other or if Plaintiff claims other unidentified Fourth Amendment
23 rights were violated beyond her right to be free from excessive force. As a result, the Court
24 cannot assess which claims Plaintiff intends to pursue, which Defendant is alleged to be involved,
25 or whether Plaintiff has stated a cognizable claim for relief.
26 Plaintiff must submit a complaint to the Court that meets the requirements of Rule 8. If
27 Plaintiff amends her complaint, she should link each Defendant to a deprivation of a
28 constitutional right. Plaintiff's amended complaint need not and should not be lengthy, Fed. R.
1 Civ. P. 8(a)(2), but it must specify what each Defendant did or did not do that led to the violation
2
of Plaintiff's rights. Conclusory assertions of personal involvement or liability will not
3
suffice. Iqbal, 556 U.S. at 677-679. Any amended complaint should include a short and plain
4
statement of her claims and factual allegations identifying what happened, when it happened and
5
who was involved. Plaintiff shall separate her claims so that it is clear what her claims are and
6
which Defendants allegedly violated her rights. For each claim, Plaintiff shall clearly and
7
succinctly set forth the facts that Plaintiff believes give rise to the claim.
8
B. Section 1983
9
Plaintiff’s complaint generally asserts claims for deprivation of her federal constitutional
10
or statutory rights under 42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff must
11
allege two essential elements: (1) that a right secured by the Constitution or laws of the United
12
States was violated and (2) that the alleged violation was committed by a person acting under the
13
color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811
14
F.2d 1243, 1245 (9th Cir.1987).
15
Government officials enjoy qualified immunity from civil damages unless their conduct
16
violates “clearly established statutory or constitutional rights of which a reasonable person would
17
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two
18
important interests—the need to hold public officials accountable when they exercise power
19
irresponsibly and the need to shield officials from harassment, distraction, and liability when they
20
perform their duties reasonably,” Pearson v. Callahan, 555 U.S. 223, 231 (2009), and protects
21
“all but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475
22
U.S. 335, 341 (1986).
23
1. Officer Mora—Excessive Force
24
Plaintiff appears to allege that Officer Mora violated her “right to be free from excessive
25
force by law enforcement officers.” The use of excessive force by law enforcement officers in
26
effectuating an arrest states a valid claim under section 1983. See Rutherford v. City of Berkeley,
27
780 F.2d 1444, 1447 (9th Cir. 1986). A claim that a law enforcement officer used excessive force
28
1 in the course of an arrest or investigatory stop of a free citizen is analyzed under the Fourth
2
Amendment reasonableness standard. Graham v. Connor, 490 U.S. 386, 394–95 (1989).
3
“Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth
4
Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the
5
individual's Fourth Amendment interests' against the countervailing governmental interests at
6
stake.” Graham, 490 U.S. at 396 (citations omitted). Whether a law enforcement officer's use of
7
force was “objectively reasonable” depends upon the totality of the facts and circumstances
8
confronting him. Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir.) (en banc)
9
(quoting Graham, 490 U.S. at 397), cert. denied, 545 U.S. 1128 (2005).
10
“The question is whether the officers' actions are ‘objectively reasonable’ in light of the
11
facts and circumstances confronting them, without regard to their underlying intent or
12
motivation.” Graham, 490 U.S. at 397 (citation omitted). Reasonableness must be assessed from
13
the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,
14
and must allow for the fact that “police officers are often forced to make split-second judgments-
15
in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is
16
necessary in a particular situation.” Graham, 490 U.S. 397. The relevant factors in the Fourth
17
Amendment reasonableness inquiry include “the severity of the crime at issue, whether the
18
suspect poses an immediate threat to the safety of the officers or others, and whether he is
19
actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. While
20
these are the most common considerations, they are not “a magical on/off switch that triggers
21
rigid preconditions” to determine whether an officer's conduct constituted excessive force. Scott
22
v. Harris, 550 U.S. 372 (2007). Consequently, courts consider other factors, such as the
23
availability of alternative methods of capturing or detaining the suspect in determining
24
reasonableness. Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir.1994), cert. denied, 513 U.S. 1148
25
(1995).
26
Plaintiff alleges that she attempted to show Officer Mora documentation in response to
27
questioning regarding her registration and he “viciously” knocked her documents from her hands,
28
1 grabbed her arm, and “viciously twisted it to the point of . . . excruciating pain[]” at which time
2
Plaintiff cried out. An ambulance was called, and Plaintiff was treated on the scene for a sprained
3
arm. The complaint also states that Plaintiff was cited for resisting arrest.
4
The Court finds that these allegations as pled fail to state a cognizable claim for the use of
5
excessive force in violation of the Fourth Amendment because Plaintiff does not sufficiently
6
plead facts to show that Officer Mora’s actions were objectively unreasonable under the
7
circumstances. While Plaintiff alleges that she had “done nothing to warrant such actions[,]”
8
Plaintiff’s complaint also indicates that she was cited for resisting arrest. See Steckman v. Hart
9
Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (“[W]e are not required to accept as true
10
conclusory allegations which are contradicted by documents referred to in the complaint.”) It is
11
therefore not clear whether Plaintiff posed an immediate threat to the safety of the officers or
12
others or was actively resisting arrest or attempting to evade arrest by flight at the time the
13
underlying arm twisting incident occurred. From the allegations as pled, the Court cannot
14
determine whether Plaintiff has alleged sufficient facts to support the plausible conclusion that the
15
degree of force used by Officer Mora was unreasonable given the circumstances.
16
2. Officers Cruz, Phelps, and Hodge—Excessive Force
17
It is not clear from the complaint whether Plaintiff intends to assert a claim against
18
Officers Cruz, Phelps, and Hodge for direct participation in the alleged excessive force. Section
19
1983 provides:
20
Every person who, under color of [state law] ... subjects, or causes to
21 be subjected, any citizen of the United States ... to the deprivation of
any rights, privileges, or immunities secured by the Constitution ...
22 shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.
23
42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between
24
the actions of the defendants and the deprivation alleged to have been suffered by
25
Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423
26
U.S. 362 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation
27
of a constitutional right, within the meaning of section 1983, if he does an affirmative act,
28
1 participates in another's affirmative acts, or omits to perform an act which he is legally required to
2
do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743
3
(9th Cir.1978). To state a claim, Plaintiff must demonstrate that each Defendant personally
4
participated in the deprivation of his rights. Iqbal, 556 U.S. at 677-678; Simmons v. Navajo
5
County, Ariz., 609 F.3d 1011, 1020–21 (9th Cir.2010). There must be an actual connection or
6
link between the actions of the Defendants and the deprivation alleged to have been suffered by
7
Plaintiff. Rizzo v. Goode, 423 U.S. at 371. Under section 1983, Plaintiff is required to show that
8
(1) each Defendant acted under color of state law and (2) each Defendant deprived him of rights
9
secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185
10
(9th Cir.2006). Plaintiff must demonstrate that each Defendant personally participated in the
11
deprivation of his rights. Jones, 297 F.3d at 934. There is no respondeat superior liability
12
under section 1983, and therefore, each Defendant is only liable for his or her own
13
misconduct. Iqbal, 556 U.S. at 675-677.
14
Plaintiff does not link Officers Cruz, Phelps, and Hodge to any direct participation in any
15
alleged excessive force. The complaint does not allege that Officers Cruz, Phelps, or Hodge
16
grabbed or twisted her arm or otherwise used any force against her. Accordingly, Plaintiff fails to
17
state a claim against Officers Cruz, Phelps, and Hodge for any direct involvement in the alleged
18
use of excessive force against her in violation of her Fourth Amendment rights. See Johnson, 588
19
F.2d at 743 (requiring causal connection between acts or omissions of defendant and
20
constitutional deprivation).
21
3. Officers Cruz, Phelps, and Hodge—Failure to Intercede
22
The complaint alleges that Officer Mora “viciously twisted” Plaintiff’s arm while “[t]he
23
remaining defendants just looked on, and . . . did nothing to stop him.” Plaintiff is proceeding pro
24
se and her complaint is to be liberally construed. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir.
25
2014). Accordingly, the Court will consider whether Plaintiff has adequately alleged a claim
26
arising under the Fourth Amendment against Officers Cruz, Phelps, and Hodge for their failure to
27
intercede.
28
1 “[P]olice officers have a duty to intercede when their fellow officers violate the
2 constitutional rights of a suspect or other citizen.” Cunningham v. Gates, 229 F.3d 1271, 1289
3 (9th Cir. 2000), as amended (Oct. 31, 2000) (citing United States v. Koon, 34 F.3d 1416, 1447 n.
4 25 (9th Cir.1994), rev'd on other grounds, 518 U.S. 81 (1996)). Therefore, an officer may be
5 held liable for failing to intercede when his fellow officer uses excessive force. See Cunningham,
6 229 F.3d at 1289; Garlick v. County of Kern, 167 F.Supp.3d 1117, 1161 (E.D. Cal. 2016).
7 However, an officer can only be held liable for failing to intercede of the officer had a “realistic
8 opportunity” to intercede. Cunningham, 228 F.3d at 1290; Garlick, 167 F.Supp.3d at 1161.
9 Officers who are not present at the time of a constitutional violation have no realistic opportunity
10 to intercede. Cunningham, 228 F.3d at 1290. “In addition, if a constitutional violation occurs too
11 quickly, there may no realistic opportunity to intercede to prevent the violation.” Freeland v.
12 Sacramento City Police Dep’t, 2010 WL 409838, at *5 (E.D. Cal. Jan. 29, 2010) (citing Knapps
13 v. City of Oakland, 647 F.Supp.2d 1129, 1159-60 (N.D.Cal.2009)).
14 As discussed above, Plaintiff has not adequately pled that Officer Mora’s conduct
15 amounted to excessive force. Without an underlying constitutional violation, Officers Cruz,
16 Phelps, and Hodge cannot be held liable for their failure to intercede.
17 Moreover, the complaint lacks facts that Officers Cruz, Phelps, and Hodge were on notice
18 that Plaintiff’s constitutional rights had been or were being violated and had a realistic
19 opportunity to intercede to prevent the alleged violation. It merely alleges that Officers Cruz,
20 Phelps, and Hodge “just stood there” when Officer Mora grabbed her arm. It is not clear from the
21 complaint whether the incident is alleged to have occurred in these officers’ immediate presence
22 or in close enough proximity to allow them a realistic opportunity to intercede. See Anderson v.
23 Hartley, 2011 WL 5876913, at *2 (E.D. Cal. Nov. 22, 2011) (finding that a plaintiff adequately
24 alleged a realistic opportunity to intercede where the complaint alleged the defendant was near
25 enough to the incident itself to intercede.”). Similarly, given the apparently short time period in
26 which the incident is alleged to have taken place, i.e. while Plaintiff was producing documents
27 from her vehicle, it is not clear whether Plaintiff alleges that Officers Cruz, Phelps, and Hodge
28 had enough time to prevent the alleged violation. See Knapps, 647 F.Spp.2d at 1159-1160
1 (reasoning that a defendant did not have a realistic opportunity to intercede where the violation
2 happened in a “short time period” and the defendants did not anticipate the use of force); Mendez
3 v. Montour, 2014 WL 1218665, at *1-4 (N.D. Cal. Mar. 21, 2014) (finding no realistic
4 opportunity to intercede where excessive force claim was based on officer’s act of suddenly and
5 unexpectedly knocking plaintiff to the ground then slamming plaintiff’s head against a vehicle).
6 Plaintiff therefore has not made the necessary showing that Officers Cruz, Phelps, and Hodge had
7 a realistic opportunity to intercede.
8 4. Racial Insults
9 The complaint also alleges a claim under section 1983 for violation of Plaintiff’s “right to
10 be free from racial insults.” (Doc. No. 1 at 3.) The Fourteenth Amendment provides that a state
11 may not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.
12 amend. XIV, § 1. An equal protection violation occurs when persons similarly situated are
13 unfairly treated differently. Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). “To state a
14 claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth
15 Amendment a plaintiff must show that the defendants acted with an intent or purpose
16 to discriminate against the plaintiff based upon membership in a protected class.” Barren v.
17 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
18 Additionally, 42 U.S.C. § 1981 provides, in part, that:
19 All persons within the jurisdiction of the United States shall have the
same right in every State and Territory ... to the full and equal benefit
20 of all laws and proceedings for the security of persons and property
as is enjoyed by white citizens, and shall be subject to like
21 punishment, pains, penalties, taxes, licenses, and exactions of every
kind, and to no other.
22
23 42 U.S.C. § 1981(a). As with § 1983 claims regarding Equal Protection, in order to prevail on a
24 claim under Section 1981, a plaintiff “must show intentional discrimination on account of
25 race.” Evans v. McKay, 869 F.2d 1341, 1344 (9th Cir. 1989).
26 However, allegations of verbal harassment and abuse alone are generally not actionable.
27 Walker v. Chisman, 2019 WL 5536212, at *1 (N.D. Cal. Oct. 25, 2019). This is so even if the
28 verbal harassment is racially motivated. Hubbard v. Johnson, 2019 WL 5579507, at *4 (N.D.
1 Cal. Oct. 29, 2019); Walker, 2019 WL 5536212, at *1; see also, e.g., Austin v. Terhune, 367 F.3d
2
1167, 1171 (9th Cir. 2004) (noting that “the Eighth Amendment's protections do not necessarily
3
extend to mere verbal sexual harassment”); Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997)
4
(“As for being subjected to abusive language directed at [one's] religious and ethnic background,
5
verbal harassment or abuse...is not sufficient to state a constitutional deprivation under 42
6
U.S.C. § 1983.”) (internal quotations omitted) abrogated on other grounds by Shakur, 514 F.3d
7
878.
8
Plaintiff alleges that Officer Mora called her a racial slur after she attempted to produce
9
documents from her vehicle. Plaintiff again fails to link Officers Cruz, Phelps, and Hodge to any
10
direct participation in the conduct which allegedly violated her rights. While Plaintiff alleges that
11
Officer Mora is Caucasian and she is African American with “Haitian Roots,” the complaint only
12
sets forth allegations of verbal harassment. Plaintiff does not allege any facts from which the
13
Court could reasonably discern that Officer Mora or any other Defendant engaged in intentional
14
discrimination based on race. Plaintiff has therefore failed to adequately allege a constitutional
15
violation. Plaintiff is reminded that if she elects to amend her complaint she must provide
16
sufficient factual detail to allow the Court to reasonably infer that each named Defendant is liable
17
for the misconduct alleged. Conclusory assertions of liability will not suffice. Iqbal, 556 U.S. at
18
678.
19
IV. Conclusion and Order
20
Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to
21
state a cognizable claim for relief. As Plaintiff is proceeding pro se, the Court will grant Plaintiff
22
an opportunity to amend her complaint to cure these deficiencies to the extent she is able to do so
23
in good faith. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
24
Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what
25
each named defendant did that led to the deprivation of Plaintiff’s constitutional rights. Iqbal,
26
556 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to
27
raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations
28
1 omitted).
2 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated
3 claims in her first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no
4 “buckshot” complaints).
5 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.
6 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended
7 complaint must be “complete in itself without reference to the prior or superseded pleading.”
8 Local Rule 220.
9 Based on the foregoing, it is HEREBY ORDERED that:
10 1. The Clerk’s Office shall send Plaintiff a complaint form;
11 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a
12 first amended complaint curing the deficiencies identified by the Court in this order or file a
13 notice of voluntary dismissal; and
14 3. If Plaintiff fails to file an amended complaint in compliance with this order, the
15 Court will recommend dismissal of this action, with prejudice, for failure to obey a court order
16 and for failure to state a claim.
17
IT IS SO ORDERED.
18
19 Dated: January 10, 2020 /s/ Barbara A. McAuliffe _
UNITED STATES MAGISTRATE JUDGE
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