# (PC) McCoy v. Sacramento Police Department > District Court, E.D. California · January 24, 2024 URL: https://www.frixlaw.com/law-library/cases/10058719 ## Case - **Court:** District Court, E.D. California - **Decided:** January 24, 2024 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10058719 ## Opinion text 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEROME ELI MCCOY, No. 2:23-CV-1636-DMC-P 12 Plaintiff, 13 v. ORDER 14 SACRAMENTO POLICE DEPARTMENT, et al., 15 Defendants. 16 17 18 Plaintiff, who is proceeding pro se, brings this civil rights action pursuant to 42 19 U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint, ECF No. 1. 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). This provision also applies if the plaintiff was incarcerated at the time the action was 23 initiated even if the litigant was subsequently released from custody. See Olivas v. Nevada ex rel. 24 Dep’t of Corr., 856 F.3d 1281, 1282 (9th Cir. 2017). The Court must dismiss a complaint or 25 portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can 26 be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 27 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that 28 complaints contain a “. . . short and plain statement of the claim showing that the pleader is 1 entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, 2 concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to 3 Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice 4 of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 5 1129 (9th Cir. 1996). Because Plaintiff must allege with at least some degree of particularity 6 overt acts by specific defendants which support the claims, vague and conclusory allegations fail 7 to satisfy this standard. Additionally, it is impossible for the Court to conduct the screening 8 required by law when the allegations are vague and conclusory. 9 10 I. PLAINTIFF’S ALLEGATIONS 11 Plaintiff names the following as defendants: (1) Sacramento Police Department, 12 and (2) Powder, police officer, badge number 772. See ECF No. 1, pg. 1. 13 Plaintiff summarizes the alleged violations in the Supporting Facts section of the 14 complaint but includes a more detailed account of the violation on an attached Correctional 15 Services Grievance Form. See id. at 5. The receiving officer of the Correctional Services 16 Grievance Form notes that the alleged violation took place during Plaintiff’s arrest. Id. 17 After his arrest, Plaintiff was placed in Defendant Powder’s police squad car. Id. 18 at 5. Plaintiff then informed Defendant Powder that he was having medical issues and that he 19 wanted to go to the hospital. Id. Defendant Powder responded by saying that this was an 20 ongoing issue with Plaintiff, and that going to the hospital was a big waste of time. Id. 21 Defendant Powder told Plaintiff that if Plaintiff made him take Plaintiff to the hospital, he would 22 be making an enemy of Defendant Powder, and that Defendant Powder would stop and harass 23 Plaintiff every time he saw him. Id. Defendant Powder also said that he would harass everyone 24 he saw near Plaintiff. Id. 25 When Plaintiff and Defendant Powder arrived at the emergency room at Kaiser 26 North Hospital, Defendant Powder handcuffed Plaintiff behind his back and ordered him to lay 27 down on his back on a gurney. Id. at 3, 5. Plaintiff is overweight, which he says made being 28 handcuffed behind his back difficult. Id. This caused the handcuffs to cut into Plaintiff’s skin 1 and cut off blood circulation in his hands, resulting in excruciating pain. Id. at 5. Plaintiff 2 suffered this pain for several hours. Id. 3 4 II. DISCUSSION 5 Plaintiff has not presently stated cognizable claims. Plaintiff has failed to allege 6 facts to establish municipal liability of Sacramento Police Department. Plaintiff has not made out 7 a valid claim for excessive force under the Fourth Amendment. 8 A. Municipal Liability 9 Municipalities and other local government units are among those “persons” to 10 whom § 1983 liability applies. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). 11 Counties and municipal government officials are also “persons” for purposes of § 1983. See id. at 12 691; see also Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989). A local 13 government unit, however, may not be held responsible for the acts of its employees or officials 14 under a respondeat superior theory of liability. See Bd. of County Comm’rs v. Brown, 520 U.S. 15 397, 403 (1997). Thus, municipal liability must rest on the actions of the municipality, and not of 16 the actions of its employees or officers. See id. To assert municipal liability, therefore, the 17 plaintiff must allege that the constitutional deprivation complained of resulted from a policy or 18 custom of the municipality. See id. 19 Plaintiff names the Sacramento Police Department as a Defendant, which is a 20 municipal agency. Plaintiff has not, however, alleged any facts as to a municipal policy or 21 custom which resulted in a constitutional violation. Plaintiff will be provided leave to amend. 22 B. Excessive Force 23 The Fourth Amendment requires that police officers use only “objectively 24 reasonable” force “in light of the facts and circumstances confronting them, without regard to 25 their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). To 26 determine whether an officer’s use of force was reasonable, courts must balance the “nature and 27 quality of the intrusion on a person's liberty with the countervailing governmental interests at 28 stake.” Davis v. City of Las Vegas, 478 F.3d 1048, 1054 (9th Cir. 2007) (internal quotations and 1 citations omitted). This balancing act requires courts to “assess the quantum of force used” and 2 then “measure the governmental interests at stake” by considering the following three factors: 3 “(1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the 4 safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to 5 evade arrest by flight.” Id. (internal quotations and citations omitted). 6 Of these three factors, the most important is whether the suspect posed an 7 immediate threat to the safety of the officers or others at the time force was applied. Graham, 490 8 U.S. at 396. The Graham factors, however, are not the only factors. George v. Morris, 736 F.3d 9 829, 837-38 (9th Cir. 2013). In fact, courts must “examine the totality of the circumstances and 10 consider ‘whatever specific factors may be appropriate in a particular case, whether or not listed 11 in Graham.’” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (quoting Franklin v. 12 Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)). For instance, courts may look at “the availability of 13 less intrusive alternatives to the force employed, whether proper warnings were given[,] and 14 whether it should have been apparent to officers that the person they used force against was 15 emotionally disturbed.” Glenn v. Washington Cnty., 673 F.3d 864, 872 (9th Cir. 2011) (citations 16 omitted). 17 Here, Plaintiff alleges an excessive force claim against Defendant Powder. 18 However, the allegations are insufficient in their present form. Plaintiff claims that the placement 19 of the handcuffs behind his back while laying down caused pain because he is overweight. See 20 ECF No. 1 at 3. Plaintiff does not state the reason for being placed in handcuffs, nor mention any 21 underlying crime. There are insufficient facts in Plaintiff’s complaint that would allow the Court 22 to weigh the totality of the circumstances in its determination of whether Plaintiff has stated a 23 Fourth Amendment claim for excessive force. Plaintiff will be granted leave to amend his 24 complaint to allege additional facts concerning his claim that Defendant Powder used excessive 25 force in violation of the Fourth Amendment. 26 / / / 27 / / / 28 / / / 1 III. CONCLUSION 2 Because it is possible that the deficiencies identified in this order may be cured by 3 amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the entire 4 action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is 5 informed that, as a general rule, an amended complaint supersedes the original complaint. See 6 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 7 amend, all claims alleged in the original complaint which are not alleged in the amended 8 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 9 Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make 10 Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 11 complete in itself without reference to any prior pleading. See id. 12 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 13 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 14 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 15 each named defendant is involved, and must set forth some affirmative link or connection 16 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 17 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 18 Finally, Plaintiff is warned that failure to file an amended complaint within the 19 time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 20 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 21 with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 22 See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / ] Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiffs original complaint is dismissed with leave to amend; and 3 2. Plaintiff shall file a first amended complaint within 30 days of the date of 4 | service of this order. 5 6 || Dated: January 23, 2024 Svc 7 DENNIS M. COTA 8 UNITED STATES MAGISTRATE JUDGE 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10058719. Public record. Not legal advice.