1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JACOB M. BOSLEY, Case No. 2:23-cv-2994-JDP (P) 12 Plaintiff, 13 v. ORDER; FINDINGS AND

RECOMMENDATIONS

14 TRUCKEE POLICE DEPARTMENT,

15 Defendant. 16 17 18 Plaintiff, proceeding pro se, alleges that defendants Calahan and Yarborough, both 19 officers with the Truckee Police Department, violated his Fourth Amendment rights by using 20 excessive force against him during an arrest on September 22, 2023. ECF No. 16 at 3. After 21 reviewing the third amended complaint, I find that the excessive force claim against these 22 defendants is cognizable and should proceed. The other claims in the complaint, however, should 23 be dismissed as inadequately plead and insufficiently related to the excessive force claim. I will 24 direct plaintiff to submit service documents for Calahan and Yarborough and will recommend 25 that his other claims be dismissed. 26

27 28 1 2 Screening Order 3 I. Screening and Pleading Requirements 4 A federal court must screen the complaint of any claimant seeking permission to proceed 5 in forma pauperis. See 28 U.S.C. § 1915(e). The court must identify any cognizable claims and 6 dismiss any portion of the complaint that is frivolous or malicious, fails to state a claim upon 7 which relief may be granted, or seeks monetary relief from a defendant who is immune from such 8 relief. Id. 9 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 10 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 11 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 12 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 13 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 14 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 15 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 16 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 17 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 18 n.2 (9th Cir. 2006) (en banc) (citations omitted). 19 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 20 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 21 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 22 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 23 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 24 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 25 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 26 27 28 1 II. Analysis 2 Plaintiff alleges that, on September 22, 2023, defendants Calahan and Yarborough, both 3 officers with the Truckee Police Department, violated his Fourth Amendment1 rights by using 4 excessive force against him during an arrest. ECF No. 16 at 3. He claims both officers pressed 5 their bodyweight against him and made it impossible for him to breathe. Id. Plaintiff also claims 6 that he was unnecessarily sprayed with teargas while in his car. Id. He alludes to other dates and 7 other officers at the scene, but the complaint fails to make explicit claims against the other 8 officers, and they are not included in the caption of the complaint. Accordingly, only the claims 9 against Calahan and Yarborough should proceed. Plaintiff’s other claims should be dismissed. 10 Plaintiff’s allegation that employees of Kimco Realty have harassed him and other 11 homeless individuals in parking lots is non-cognizable for two reasons. First, as noted in my 12 previous screening order, there is no indication that Kimco Realty is a state actor for the purposes 13 of section 1983. Second, plaintiff’s claims that unnamed employees have stalked and harassed 14 him are too vague to proceed.2 His only specific claim is that, in August 2023, an unnamed 15 employee blocked his car and took pictures of it. Id. at 4. This allegation does not give rise to 16 any federal claim and does not appear related to his excessive force claim. 17 Plaintiff’s claim that, on September 20, 2023, unnamed Truckee Police department 18 officers arrested him at a public parking lot is also too vague to proceed. Id. at 5. Plaintiff does 19 not name any of the offending officers or indicate what happened during or after the arrest. 20 Neither do his allegations, taken as true, show that this claim is sufficiently related to his 21 excessive force claim.

22 1 Plaintiff’s section 1983 claim for excessive force proceeds under the Fourth Amendment 23 insofar as it relates to his arrest. See Graham v. Connor, 490 U.S. 386, 394-95 (1989). 2 I recognize that the complaint contains “additional statements” appended to the main 24 body that add some detail and context to all claims raised in the complaint. ECF No. 16 at 7-11. These added allegations are, in most cases, difficult to trace back to the original claims insofar as 25 they are not organized in any coherent way. Regardless, none of these added statements convince me that the other claims are sufficiently related to proceed with the excessive force claim. 26 Plaintiff has also filed a “supplemental exhibit” that contains a state habeas petition. ECF 27 No. 17. He does not explain how he intends this petition to relate to his operative complaint and, in any event, a complaint must be complete in itself without reference to other documents. 28 Accordingly, I find it unnecessary to consider or discuss this exhibit. 1 This case has been pending at the screening stage for more than a year, and this is 2 plaintiff’s third amended complaint. Accordingly, I find that further opportunities to amend are 3 unwarranted. Plaintiff shall submit service documents for his Fourth Amendment claims against 4 Calahan and Yarborough. His other claims should be dismissed. 5 Accordingly, it is ORDERED that: 6 1. Plaintiff may proceed with the Fourth Amendment claims against Calahan and 7 Yarborough deemed cognizable in this order. 8 2. The clerk of court shall send plaintiff a USM-285 forms, a summons, a Notice of 9 Submission of Documents form, an instruction sheet, and a copy of the complaint filed December 10 11, 2024, ECF No. 12. 11 3. Within thirty days from the date of this order, plaintiff shall complete the attached 12 Notice of Submission of Documents and submit the completed Notice to the court with the 13 following documents: 14 a. one completed summons for the defendants; 15 b. two completed USM-285 forms; and 16 c. three copies of the signed December 11, 2024 complaint. 17 4. Plaintiff need not attempt service on defendant and need not request waiver of 18 service. Upon receipt of the above-described documents, the court will direct the U.S. Marshals 19 Service to serve the above defendant pursuant to Federal Rule of Civil Procedure 4, without 20 payment of costs by plaintiff. 21 5. The failure to comply with this order may result in dismissal of this action for 22 failure to prosecute. 23 6. The Clerk of Court shall assign a district judge to this action. 24 Further, it is RECOMMENDED that all other claims in the third amended complaint be 25 dismissed for the reasons stated in the above findings and recommendations. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 28 after being served with these findings and recommendations, any party may file written 1 | objections with the court and serve a copy on all parties. Such a document should be captioned 2 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 3 | objections shall be served and filed within fourteen days after service of the objections. The 4 | parties are advised that failure to file objections within the specified time may waive the right to 5 | appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 6 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). 7 g IT IS SO ORDERED.

Dated: _ March 21, 2025 q——— 10 JEREMY D. PETERSON i UNITED STATES MAGISTRATE JUDGE

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 UNITED STATES DISTRICT COURT 4 FOR THE EASTERN DISTRICT OF CALIFORNIA 5 6 JACOB M. BOSLEY, Case No. 2:23-cv-2994-JDP (P) 7 Plaintiff, NOTICE OF SUBMISSION OF

DOCUMENTS

8 v. 9 TRUCKEE POLICE DEPARTMENT, 10 Defendant. 11 12 13 14 15

16 In accordance with the court’s Screening Order, plaintiff must submit: 17 1 completed summons form 18 2 completed forms USM-285 19 3 copies of the December 11, 2024 complaint 20

21

22 _________________________________ 23 Plaintiff 24 Dated: 25

26 27 28