1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JAILEN PARKS, ) Case No. CV 19-4346-GW (JPR) 12 ) Plaintiff, ) 13 ) ORDER DISMISSING PLAINTIFF’S v. ) COMPLAINT WITH LEAVE TO AMEND 14 )

CHOCANO CHRISTIAN, )

15 ) Defendants. ) 16 ) 17 18 On May 20, 2019, Plaintiff, a state inmate proceeding pro 19 se, filed a civil-rights action against Defendant Chocano 20 Christian in his official capacity, seeking compensatory damages 21 and possibly “plasti[c] surgery” and “therap[]y.” (Compl. at 3, 22 6.) He was subsequently granted leave to proceed in forma 23 pauperis. Plaintiff’s claims arise from his arrest on 24 unspecified charges, during which Defendant, an Inglewood Police 25 Department police officer, allegedly deployed a police dog 26 against him after he had surrendered. 27 After screening the Complaint under 28 U.S.C. §§ 1915(e)(2) 28 and 1915A, the Court finds that his allegations fail to state a 1 1 claim on which relief might be granted. Because at least some of 2 his claims might be cured by amendment, they are dismissed with 3 leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th 4 Cir. 2000) (en banc) (holding that pro se litigant must be given 5 leave to amend complaint unless absolutely clear that 6 deficiencies cannot be cured). If Plaintiff desires to pursue 7 any of his claims, he is ORDERED to file a first amended 8 complaint within 28 days of the date of this order, remedying the 9 deficiencies discussed below. 10 ALLEGATIONS 11 On December 7, 2017, at “approximately around 10:30/11:00 12 a.m.,” Defendant “attempted to detain [Plaintiff].” (Compl. at 13 1; see id. at 2.) Although Defendant “gave no direction” that he 14 was under arrest, he nonetheless got down on the ground with his 15 hands on his head. (Id. at 1.) While he was “subdu[ed]” on the 16 ground, Defendant allegedly “deployed” a police dog against him. 17 (Id.) The dog “vi[ci]ously” bit his right ear, left bicep, arm, 18 and neck. (Id.) He was then “arrest[ed].” (Id. at 5.) In the 19 arrest report, Defendant “false[ly]” stated that the police dog 20 bit Plaintiff in the leg and chest and only after he had “kicked” 21 and punched it and had attempted to “evade arrest.” (Id.) He 22 doesn’t state what crime he was arrested for but asserts that 23 because he wasn’t charged with “assault on a police officer” or 24 “evad[ing” arrest,” Defendant must be lying. (Id.) 25 He claims that “[e]verything that transpired was . . . 26 premeditated through care less [sic] racism and neglect” and that 27 he was “harass[ed]” and “racial[ly] profil[ed].” (Id. at 3, 6.) 28 He also contends that his “right to be treated equal” under the 2 1 14th Amendment was violated, his “22nd Amendment” right was 2 violated through “accessive [sic] brutal force,” and his right to 3 “life liberty and property” under the Declaration of Independence 4 “was abused.” (Id. at 5.) He requests compensatory damages, 5 including that his “plasti[c] surgery bills” be paid. (Id. at 6 6.) 7 STANDARD OF REVIEW 8 A complaint may be dismissed as a matter of law for failure 9 to state a claim “where there is no cognizable legal theory or an 10 absence of sufficient facts alleged to support a cognizable legal 11 theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 12 1035, 1041 (9th Cir. 2010) (as amended) (citation omitted); 13 accord O’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008). In 14 considering whether a complaint states a claim, a court must 15 generally accept as true all the factual allegations in it. 16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Hamilton v. Brown, 17 630 F.3d 889, 892-93 (9th Cir. 2011). The court need not accept 18 as true, however, “allegations that are merely conclusory, 19 unwarranted deductions of fact, or unreasonable inferences.” In 20 re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) 21 (citation omitted); see also Shelton v. Chorley, 487 F. App’x 22 388, 389 (9th Cir. 2012) (finding that district court properly 23 dismissed civil-rights claim when plaintiff’s “conclusory 24 allegations” did not support it). 25 Although a complaint need not include detailed factual 26 allegations, it “must contain sufficient factual matter, accepted 27 as true, to ‘state a claim to relief that is plausible on its 28 face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. 3 1 Twombly, 550 U.S. 544, 570 (2007)); Yagman v. Garcetti, 852 F.3d 2 859, 863 (9th Cir. 2017). A claim is facially plausible when it 3 “allows the court to draw the reasonable inference that the 4 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 5 at 678. “A document filed pro se is ‘to be liberally construed,’ 6 and ‘a pro se complaint, however inartfully pleaded, must be held 7 to less stringent standards than formal pleadings drafted by 8 lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per 9 curiam) (citations omitted); Byrd v. Phx. Police Dep’t, 885 F.3d 10 639, 642 (9th Cir. 2018) (per curiam). 11 DISCUSSION 12 I. The Complaint Does Not State Any Official-Capacity Claim 13 Plaintiff sues Defendant exclusively in his official 14 capacity. (Compl. at 3.) The Supreme Court has held that an 15 “official-capacity suit is, in all respects other than name, to 16 be treated as a suit against the entity.” Kentucky v. Graham, 17 473 U.S. 159, 166 (1985); see also Brandon v. Holt, 469 U.S. 464, 18 471-72 (1985). Such a suit “is not a suit against the official 19 personally, for the real party in interest is the entity.” 20 Graham, 473 U.S. at 166 (emphasis in original). 21 Municipalities and local-government entities are considered 22 “persons” under 42 U.S.C. § 1983 and therefore may be liable for 23 causing a constitutional deprivation. See Monell v. Dep’t of 24 Soc. Servs., 436 U.S. 658, 690-91, 694 (1978); see also Long v. 25 Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). California 26 police departments are independently suable public entities. See 27 Streit v. Cnty. of L.A., 236 F.3d 552, 565 (9th Cir. 2001) 28 (citing Shaw v. Cal. Dep’t of Alcoholic Beverage Control, 788 4 1 F.2d 600, 605 (9th Cir. 1986), and Karim-Panahi v. L.A. Police 2 Dep’t, 839 F.2d 621, 624 n.2 (9th Cir. 1988)). Because no 3 respondeat superior liability exists under § 1983, a municipality 4 is liable only for injuries that arise from an official policy or 5 longstanding custom. Monell, 436 U.S. at 694; City of Canton v. 6 Harris, 489 U.S. 378, 385-87 (1989). A plaintiff must show “that 7 a [municipal] employee committed the alleged constitutional 8 violation pursuant to a formal governmental policy or a 9 longstanding practice or custom which constitutes the standard 10 operating procedure of the local governmental entity.” Gillette 11 v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (per curiam) 12 (citation omitted). 13 In addition, a plaintiff must allege facts demonstrating 14 that the policy was “(1) the cause in fact and (2) the proximate 15 cause of the constitutional deprivation.” Trevino v. Gates, 99 16 F.3d 911, 918 (9th Cir. 1996). “Liability for improper custom 17 may not be predicated on isolated or sporadic incidents; it must 18 be founded upon practices of sufficient duration, frequency and 19 consistency that the conduct has become a traditional method of 20 carrying out policy.” Id.; see also Thompson v. City of L.A., 21 885 F.2d 1439, 1443-44 (9th Cir. 1989) (“Consistent with the 22 commonly understood meaning of custom, proof of random acts or 23 isolated events are [sic] insufficient to establish custom.”), 24 overruled on other grounds by Bull v. City & Cnty. of S.F., 595 25 F.3d 964, 981 (9th Cir. 2010) (en banc). “A custom can be shown 26 or a policy can be inferred from widespread practices or 27 ‘evidence of repeated constitutional violations for which the 28 errant municipal officers were not discharged or reprimanded.’” 5 1 Pierce v. Cnty. of Orange, 526 F.3d 1190, 1211 (9th Cir. 2008) 2 (as amended) (quoting Gillette, 979 F.2d at 1349). 3 A plaintiff may also establish municipal liability by 4 demonstrating that the alleged constitutional violation was 5 caused by a failure to train municipal employees adequately. See 6 Harris, 489 U.S. at 388. A plaintiff claiming failure to train 7 must allege facts demonstrating the following: 8 (1) he was deprived of a constitutional right, (2) the 9 [municipality] had a training policy that amounts to 10 deliberate indifference to the constitutional rights of 11 the persons with whom its police officers are likely to 12 come into contact, and (3) his constitutional injury 13 would have been avoided had the [municipality] properly 14 trained those officers. 15 Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007) 16 (citations and alterations omitted). “Proof of a single incident 17 of unconstitutional activity is not sufficient to impose 18 [municipal] liability” under a failure-to-train theory. City of 19 Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985); Szajer v. 20 City of L.A., No. CV 07-07433 SVW (PLAx), 2008 WL 11350227, at *7 21 (C.D. Cal. Nov. 12, 2008) (“[M]unicipal liability based upon 22 failure to train cannot be derived from a single incident.”), 23 aff’d, 632 F.3d 607 (9th Cir. 2011). 24 Nowhere in the Complaint does Plaintiff identify an 25 “official policy or longstanding custom” that caused his 26 injuries, reference any events other than his own arrest, or say 27 anything concerning whether or how Defendant was trained. 28 Therefore, his official-capacity claims are insufficient as a 6 1 matter of law. See Hayes v. Voong, 709 F. App’x 494, 495 (9th 2 Cir. 2018) (“The district court properly dismissed [plaintiff’s] 3 . . . claims against defendants in their official capacities 4 because [he] failed to identify . . . a policy or custom of the 5 State that allegedly violated federal law.”); Fortson v. L.A. 6 City Att’y’s Off., 852 F.3d 1190, 1192 (9th Cir. 2017) 7 (“[Plaintiff’s] official-capacity claims against the Los Angeles 8 Police Department also fail because [he] has not sufficiently 9 alleged an underlying constitutional violation or otherwise 10 identified an official policy or custom that was the ‘moving 11 force’ behind a potential constitutional violation.”); see also 12 Cannon v. City of Petaluma, No. C 11-0651 PJH., 2012 WL 1183732, 13 at *19 (N.D. Cal. Apr. 6, 2012) (Plaintiff’s “allegations . . . 14 relate solely to his own, isolated experiences, which cannot 15 support a Monell claim for failure to train or supervise”). 16 II. The Complaint Does Not Comply With Federal Rule of Civil 17 Procedure 8 18 Plaintiff is warned that the Complaint’s allegations are 19 also inadequate to state individual-capacity claims against 20 Defendant. Rule 8(a)(2) of the Federal Rules of Civil Procedure 21 requires that a complaint contain “a short and plain statement of 22 the claim showing that the pleader is entitled to relief.” The 23 purpose of this requirement is to “give the defendant fair notice 24 of what the claim is and the grounds upon which it rests.” 25 Twombly, 550 U.S. at 555 (citation and alteration omitted). 26 Rule 8(a)(2) “requires a ‘showing,’ rather than a blanket 27 assertion, of entitlement to relief.” See id. at 555 n.3. To 28 comply with Rule 8, a complaint must allege sufficient facts “to 7 1 give fair notice and to enable the opposing party to defend 2 itself effectively,” and it “must plausibly suggest an 3 entitlement to relief, such that it is not unfair” to subject the 4 opposing party “to the expense of discovery and continued 5 litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011); 6 see also Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 199 (9th Cir. 7 1995) (Rule 8 requires that complaint provide “minimum threshold” 8 giving defendant “notice of what it is that it allegedly did 9 wrong”). 10 Plaintiff’s pleadings don’t comport with Rule 8 because he 11 states mostly conclusory allegations that fail to put Defendant 12 on notice of the charges against him. For instance, he claims 13 that his “right to be treated equal” under the 14th Amendment was 14 violated. (Compl. at 3, 6). To state an equal-protection claim, 15 he must show that Defendant acted with an intent or purpose to 16 discriminate against him based on his membership in a protected 17 class. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 18 1998). “Intentional discrimination means that a defendant acted 19 at least in part because of a plaintiff’s protected status.” 20 Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994) 21 (as amended) (emphasis in original). But Plaintiff has not 22 alleged that he is a member of any protected class, let alone 23 stated facts sufficient to support an inference that he was 24 discriminated against because he was a member of that class. His 25 conclusory allegation that he was “racially profile[ed],” without 26 more, is insufficient to state a valid equal-protection claim. 27 Plaintiff alludes to violations of his rights under the 28 “22nd Amendment” and the Declaration of Independence. (See 8 1 Compl. at 5.) The 22nd Amendment limits an elected President to 2 two terms in office; neither it nor the Declaration of 3 Independence creates rights cognizable in a § 1983 action. See 4 generally Coffey v. United States, 939 F. Supp. 185, 191 5 (E.D.N.Y. 1996) (“While the Declaration of Independence states 6 that all men are endowed certain unalienable rights including 7 ‘Life, Liberty and the pursuit of Happiness,’ it does not grant 8 rights that may be pursued through the judicial system.” 9 (citation omitted)). 10 Plaintiff also appears to claim that Defendant used 11 excessive force while arresting him. (Compl. at 5; see id. at 8 12 (stating in attached grievance that “th[e] peace officer who 13 attempted to arrest [him] used accessive [force]”).) Section 14 1983 claims arising from allegedly excessive force during the 15 “arrest, investigatory stop, or other ‘seizure’ of a free 16 citizen” are governed by the Fourth Amendment. Graham v. Connor, 17 490 U.S. 386, 395 (1989). The officers’ actions must have been 18 “‘objectively reasonable’ in light of the facts and circumstances 19 confronting them, without regard to their underlying intent or 20 motivation.” Id. at 397 (citation omitted); see also Byrd, 885 21 F.3d at 642. 22 Plaintiff alleges that Defendant deployed a police dog 23 against him after he had surrendered, resulting in multiple 24 injuries. Although these allegations appear sufficiently 25 specific to show that force was used and that it could have been 26 excessive, see Byrd, 885 F.3d at 643 (allegation that officers 27 “beat the crap out of plaintiff” sufficient to allege excessive 28 force), he has failed to allege the “facts and circumstances 9 1 confronting” Defendant before the arrest to demonstrate that the 2 alleged force was unreasonable, such as where the arrest 3 occurred, what he was doing when approached by Defendant, and for 4 what crimes he was arrested. Cf. id. at 642 (plaintiff alleged 5 that officers pulled him over for missing bicycle light despite 6 his being on private property, not engaged in criminal activity, 7 not on probation or parole, and without any outstanding warrants 8 for his arrest); see also Graham, 490 U.S. at 396 (factors to be 9 considered in Fourth Amendment excessive-force claim include 10 “severity of the crime at issue, whether the suspect poses an 11 immediate [safety] threat . . . , and whether he is actively 12 resisting arrest or attempting to evade [it] by flight”). Should 13 Plaintiff decide to pursue an excessive-force claim in an amended 14 pleading, he must allege additional specific facts showing why 15 the force used was excessive under the circumstances. See 16 Graham, 490 U.S. at 396.1 17 18 1 Public records confirm that Plaintiff was arrested in Inglewood on December 7, 2017, and charged with an unspecified 19 felony. See L.A. Cnty. Inmate Info. Ctr., https://app5.lasd.org/iic/details.cfm (search for “Parks” with 20 “Jailen”) (last visited Aug. 22, 2019). On July 2, 2018, he was transferred to California State Prison, Solano. Id.; see Cal. 21 Dep’t Corr. & Rehab. Inmate Locator, https://inmatelocator. 22 cdcr.ca.gov (search for CDCR number “BG6807”) (last visited Aug. 15, 2019). It is unclear what he is incarcerated for and whether 23 it stems from the December 7 arrest. Because he has failed to allege adequate details about the circumstances of that arrest, it 24 is unclear whether his excessive-force claim, if successful, would necessarily invalidate the conviction for which he is serving time. 25 If it would, it would be barred under Heck v. Humphrey, 512 U.S. 26 477 (1994), which held that “if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the 27 unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed.” Smith v. City of Hemet, 394 F.3d 28 689, 695 (9th Cir. 2005) (en banc) (citation omitted). Should 10 1 □□□□□□□□□□□□□□□□□□□□□□□□ KEK 2 If Plaintiff desires to pursue any of his claims, he is 3 }ORDERED to file a first amended complaint within 28 days of the 4 of this order, remedying the deficiencies discussed above. 5 The FAC should bear the docket number assigned to this case, be 6 |ilabeled “First Amended Complaint,” and be complete in and of itself, without reference to the Complaint or any other pleading, 8 attachment, or document. He is warned that if he fails to timely 9 a sufficient FAC, the Court may dismiss this action on the 10 |lgrounds set forth above or for failure to diligently prosecute.’* 11 12 |DATED: August 28, 2019 hreohlat(~

JE P. ROSENBLUTH

13 U.S. MAGISTRATE JUDGE 14 15 16 | 17 Plaintiff elect to pursue his excessive-force claim, he should allege specific facts showing that the Heck doctrine does not 1g || foreclose it, including whether he was convicted as a result of his December 7 arrest and, if so, on what charges; whether he is 19 | appealing any of those convictions; and whether he claims excessive force “distinct temporally or spatially from the factual basis” for 20 || any convictions arising from the December 7 arrest. Beets v. Cnty. of L.A., 669 F.3d 1038, 1042 (9th Cir. 2012); cf. Hooper v. Cnty. of San Diego, 629 F.3d 1127, 1133 (9th Cir. 2011) (finding that 22 | plaintiff’s conviction did not bar § 1983 claim for excessive force when “conviction and the § 1983 claim [were] based on different 23 || actions during ‘one continuous transaction’”). 24 ° If Plaintiff believes this order erroneously disposes of any 25 of his claims, he may file objections with the district judge within 20 days of the date of the order. See Bastidas v. Chappell, 26 F.3d 1155, 1162 (9th Cir. 2015) (“When a magistrate judge believes she is issuing a nondispositive order, she may warn the 27] litigants that, if they disagree and think the matter dispositive, they have the right to file an objection to that determination with 28 || the district judge.”). 11