FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A CLAIM (ECF No. 5)
STANLEY A. BOONE, Magistrate Judge.
Plaintiff Victor M. Sienze is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 5, 2017, Plaintiff's complaint was screened and an order issued requiring Plaintiff to notify the Court if he wished to proceed on the claims found to be cognizable or file a first amended complaint. Currently before the Court is Plaintiff's first amended complaint, filed June 30, 2017.
Notwithstanding any filing fee, the district court must perform a preliminary screening and must dismiss a case if at any time the Court determines that the complaint "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2);
In reviewing the pro se complaint, the Court is to liberally construe the pleadings and accept as true all factual allegations contained in the complaint.
Plaintiff is 5 feet 9 inches tall, weighs 230 pounds, and is 100 percent disabled. (First Am. Compl. ("FAC") 3,4,
After the ambulance arrived, Plaintiff helped medical personnel place his grandson on a gurney and the grandson was strapped down with two large straps. (FAC 2.) As the emergency medical personnel placed his grandson in the ambulance, Plaintiff advised them not to try to give his grandson an injection because he was hallucinating and not completely secured to the railing. (FAC 2.) The medical personnel refused to heed Plaintiff's warning and gave his grandson an injection after which they were not able to control him. (FAC 2.) Plaintiff saw the ambulance pull over to the curb and turned his car around to pull up behind them and see what the problem was. (FAC 2-3.)
The ambulance driver asked Plaintiff to come into the vehicle to assist them in restraining his grandson. (FAC 3.) Plaintiff was told to open the back door and get in the ambulance which he did. (FAC 3.) As he entered the ambulance, Plaintiff put a hand on his grandson's shoulder, bringing his left arm down to the rail and told the driver to secure it. (FAC 3.) The driver refused and told Plaintiff he was calling the Sheriff's Department. (FAC 3.) Plaintiff told the driver that he did not need the sheriff, he needed emergency medical assistance at the hospital. (FAC 3.) The driver called the Sheriff's Department anyway. (FAC 3.) Before the deputies arrived, Plaintiff's grandson was able to get out from under the two large straps securing him on the gurney and was walking around Plaintiff's side yard yelling and hallucinating. (FAC 3.) Plaintiff took his grandson to the ground so that he would not wander off. (FAC 3.)
When deputies arrived, Plaintiff had his grandson lying on his back and was kneeling over him straddling his waist with both his wrists pinned to the grass. (FAC 3.) Plaintiff was having no trouble keeping his grandson down as his grandson is only 5 feet 11 inches and weighs 157 pounds. (FAC 3.)
Deputy Kutz drove up to Plaintiff's side yard and quickly walked to where Plaintiff was restraining his grandson. (FAC 3.) Deputy Kutz placed handcuffs on his grandson's right wrist, and Plaintiff helped Deputy Kutz roll his grandson over and place handcuffs on his grandson's other wrist. (FAC 3.) Deputy Kutz asked Plaintiff if this was his grandson three times and Plaintiff answered affirmatively each time. (FAC 3.) The third time, Deputy Kutz asked Plaintiff is his grandson was adopted or something. (FAC 3.) Plaintiff responded that it did not matter and that his grandson needed medical assistance. (FAC 3.)
Deputy Kutz then summoned the gurney and medical personnel came and his grandson was placed on the gurney face down. (FAC 3.) Deputy Kutz was pressing down on his grandson's backside and low back to try to flatten him out and ambulance personnel were pulling on his legs to help flatten his grandson out on his stomach face down. (FAC 3.) Plaintiff asked Deputy Kutz if his grandson should not be laying on his back not his stomach so he could be strapped to the gurney, but got no response. (FAC 3.) After his grandson was on his stomach, his head was turned to the left so he could breathe. (FAC 3.) Deputy Kutz placed his right knee on the side of Plaintiff's grandson's neck and throat and his grandson showed signs of breathing distress. (FAC 3.) Plaintiff "quickly and strongly" advised Deputy Kutz that prior to his arrival Plaintiff had to resuscitate his grandson three times because his grandson had stopped breathing and that Deputy Kutz was placing his grandson's life in jeopardy because he was struggling to breathe. (FAC 3.) Plaintiff repeated this advisement three times. (FAC 3.) When Deputy Kutz did not respond, Plaintiff asked Deputy Kutz if he was on antibiotic steroids as his reasoning seemed to be cognitively impaired. (FAC 3-4.) Deputy Kutz told Plaintiff to step back and Plaintiff responded that he was not going to stand by and watch Deputy Kutz kill his grandson. (FAC 4.) Plaintiff reached over and pushed Deputy Kutz right shoulder with enough force to push him back off his grandson's neck and throat so his grandson could breathe. (FAC 4.)
Plaintiff was then attacked by Deputy Kutz who was joined by Sergeant Kerber. (FAC 4.) The officers had Plaintiff face down on the grass trying to force his hands behind his back. (FAC 4.) Plaintiff told the officers that he was 100 percent disabled and his arms did not bend behind his back and they were hurting him. (FAC 4.) He told the officers to handcuff him in front so that he would not be injured. (FAC 4.) Deputy Kutz would not stop until both of Plaintiff's arms were forced behind his back and he was handcuffed tearing his rotator cuffs in both shoulders. (FAC 4.)
Plaintiff told the officers that it would take more than two of them to carry him to the car. (FAC 7.) After Plaintiff was on handcuffed on the ground with his hands behind his back, Deputy Kutz, Sergeant Kerber, Sergeant Clark, Deputy Roth, and Sergeant Thomas picked Plaintiff up and carried him and put him in the back of the police car feet first causing him further pain. (FAC 4-5.) Deputy Kutz smashed Plaintiff's head into the car door multiple times damaging his neck. (FAC 5.)
After Plaintiff was handcuffed and lying on the ground, Deputy Kutz went over to Plaintiff's grandson, put his hand on the grandson's nose and with all the weight he could muster smeared his grandson's nose over all over his face. (FAC 6.)
Plaintiff was trained in emergency first aid in the military and as a first aid responder for the Bureau of Mines and Safety. (FAC 5.) Plaintiff knows how to respond to emergency situations and states that Deputy Kutz did everything wrong and not in accordance with his duties. (FAC 5.) Plaintiff has also served as a legal court appointed conservator and guardian and is sure that Deputy Kutz was violating his protocol and duties by his actions. (FAC 5.)
Plaintiff contends that Deputy Kutz was clearly in violation of his grandson's constitutional right to life and safety and violated Plaintiff's right to defend the safety of his helpless grandson. (FAC 5.) Plaintiff also contends that Deputy Kutz violated his right to be free from the use of excessive force. (FAC 5-6.)
Plaintiff brings this action against Deputies Kutz and Roth, and Sergeants Kerber, Clark, and Thomas. Plaintiff contends that Sergeant Kerber violated his right to due process by refusing to issue a citizen's arrest against Deputy Kutz when Plaintiff requested this three times due to the false charges, false arrest, and abusive actions of Deputy Kutz. (FAC 6.) Plaintiff alleges that Deputy Kutz violated his rights under the Eighth Amendment to be free of cruel and unusual punishment. (FAC 6.)
A. Fourth Amendment
Excessive force claims which arise in the context of an arrest or investigatory stop of a free citizen invoke the protections of the Fourth Amendment and are governed by its "reasonableness" standard.
Determining whether the force used to effect a particular seizure is reasonable, "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight."
In making an arrest, the Fourth Amendment requires that police officers use only the amount of force that is objectively reasonable in light of the circumstances facing them and neither tackling nor punching a suspect to arrest them necessarily constitutes excessive force.
At the pleading stage, the Court finds that Plaintiff's allegations are sufficient to state a claim that Deputy Kutz and Sergeant Kerber use of force against him was excessive when they tackled him and handcuffed him after he pushed Deputy Kutz. Further, Plaintiff's allegation that while placing Plaintiff in the car Deputy Kutz smashed Plaintiff's head into the side of the car several times is sufficient to state an excessive force claim.
Plaintiff alleges that excessive force was used by Sergeant Clark, Deputy Roth, and Deputy Thomas who picked Plaintiff up and carried him and put him in the back of the police car feet first. However, Plaintiff also told the officers that more than two officers would be needed to carry him to the car. While Plaintiff now states that the reason he told the officers that more than two officers would be needed to put him in the car was because of his size, the factual allegations in the complaint are insufficient for the Court to infer that these officers used excessive force by carrying Plaintiff and placing him feet first into the car. Plaintiff has failed to state a cognizable claim against Sergeant Clark, Deputy Roth, and Officer Thomas for violation of the Fourth Amendment.
The Court recommends that Defendants Clark, Roth, and Thomas be dismissed from this action for failure to state a claim; and this action proceed against Defendants Kutz and Kerber for excessive force in violation of the Fourth Amendment.
B. Eighth Amendment
Plaintiff raises claims alleging violation of his rights under the Eighth Amendment. However, as Plaintiff was previously advised, the Eighth Amendment protects prisoners from cruel and unusual punishment which includes not only inhumane methods of punishment but also inhumane conditions of confinement.
Plaintiff's claims in this action do not arise under the Eighth Amendment as he was not a prisoner at the time the incidents alleged in the complaint took place. Plaintiff cannot state a claim under the Eighth Amendment; and the Court recommends that Plaintiff's Eighth Amendment claims be dismissed without leave to amend.
C. Due Process
Plaintiff contends that Sergeant Kerber violated his due process rights by failing to issue a citizen's arrest of Deputy Kutz at his request. The Due Process Clause protects against the deprivation of life, liberty, or property without due process of law.
Clearly, this may invoke a liberty interest in Deputy Kutz if he was arrested, but the Court does not find that a person seeking to make a citizen's arrest has a liberty interest in having someone else arrested. Therefore, if any interest arises under the Due Process Clause it would have to be a property interest. "`To have a property interest . . .a person clearly must have more than an abstract need or desire' for the thing in question, `[h]e must, instead, have a legitimate claim of entitlement to it. . . . It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.'"
California law provides that a private person may arrest another for a public offence committed or attempted in his presence. Cal. Pen. Code § 837. A private citizen's authority to make a citizen's arrest is more limited than that of a law enforcement officer.
Plaintiff has not identified a protected interest to state a claim against Sergeant Kerber in this instance. The Court recommends that Plaintiff's due process claim be dismissed without leave to amend.
D. Right to Defense of Another
Plaintiff also alleges that Defendant Kutz violated his right to defend his helpless grandson. While Plaintiff could raise defense of another in response to the charges brought against Plaintiff in his criminal case,
E. Plaintiff Lacks Standing to Assert His Grandson's Constitutional Claims
Finally, Plaintiff contends that Deputy Kutz violated his grandson's right to life and safety. As Plaintiff was previously advised in the prior screening order, he does not have standing to assert the rights of his grandson. Standing raises both constitutional and prudential concerns incident to the federal court's exercise of jurisdiction.
While Plaintiff alleges actions by Defendant Kutz that could be considered the use excessive force against his grandson, and arguably could show that a close relationship exists, the complaint contains no allegations that Plaintiff's grandson is unable to assert his own rights. Plaintiff has failed to allege facts that would provide him with third party standing to assert the rights of his grandson.
Further, a plaintiff, who is not an attorney, may not represent anyone but himself in court.
F. Leave to Amend
Under Rule 15(a) of the Federal Rules of Civil Procedure leave to amend shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). In determining whether to grant leave to amend, the court considers five factors: "(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously amended his complaint."
Plaintiff has been provided with the legal standards that apply to his claims in this action and provided with an opportunity to file an amended complaint to state his claims in this action. Plaintiff's amended complaint fails to cure the deficiencies identified in the June 5, 2017 screening order. The Court finds that it would be futile to allow Plaintiff further opportunity to file an amended complaint. The Court recommends that no further leave to amend be granted.
CONCLUSION AND RECOMMENDATION
Plaintiff's complaint states a cognizable claim against Defendants Kutz and Kerber for excessive force in violation of the Eighth Amendment, but fails to state any other cognizable claims. Further, Plaintiff has been provided an opportunity to file an amended complaint to cure the deficiencies in his prior complaint with guidance from the Court. The Court finds that it would be futile to allow Plaintiff further leave to amend his complaint.
Based on the foregoing, IT IS HEREBY RECOMMENDED that
These findings and recommendations are submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within thirty (30) days of service of this recommendation, any party may file written objections to these findings and recommendations with the Court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal.
IT IS SO ORDERED.