Case 8:22-cv-00202-SPG-JPR Document 17 Filed 07/06/22 Page 1 of 10 Page ID #:69

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRANDON LEON BIBBS, ) Case No. SACV 22-0202-SPG (JPR) 12 ) Plaintiff, ) 13 ) ORDER DISMISSING SECOND AMENDED v. ) COMPLAINT WITHOUT LEAVE TO AMEND 14 )

M. MEISER, )

15 ) Defendant. ) 16 ) 17 18 On February 7, 2022, Plaintiff, a state prisoner, filed pro 19 se a civil-rights action suing Los Angeles County “deputy 20 sheriff” M. Meiser.1 (Compl. at 4 (the Court uses the pagination 21 generated by its Case Management/Electronic Case Filing system).) 22 On March 1 and May 5, 2022, the Magistrate Judge dismissed the 23 Complaint and First Amended Complaint, respectively, with leave 24 to amend, finding that their allegations failed to state a claim 25 on which relief might be granted. On June 21, 2022, Plaintiff 26 filed the operative Second Amended Complaint. His claims stem 27 28 1 Plaintiff doesn’t supply Defendant’s full first name. 1 Case 8:22-cv-00202-SPG-JPR Document 17 Filed 07/06/22 Page 2 of 10 Page ID #:70

1 from injuries he allegedly sustained when Defendant handcuffed 2 him in a Los Angeles County jail. 3 After screening the SAC under 28 U.S.C. §§ 1915(e)(2) and 4 1915A, the Court finds that its allegations fail to state a claim 5 on which relief might be granted. Because Plaintiff has now 6 three times attempted to state a claim and apparently cannot do 7 so, the Court dismisses the SAC without leave to amend. See 8 Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) 9 (holding that pro se litigant must be given leave to amend 10 complaint unless it is absolutely clear that deficiencies cannot 11 be cured); Zavala v. Bartnik, 348 F. App’x 211, 213 (9th Cir. 12 2009) (“Dismissal with prejudice was proper because [plaintiff] 13 was given two prior opportunities to amend his complaint in order 14 to correct the deficiencies identified by the district court but 15 failed to do so.”). 16 ALLEGATIONS OF THE SAC 17 On May 11, 2021, Plaintiff, then a pretrial detainee, “was 18 standing in the Los Angeles county jail facility holding tank” 19 and “drinking coffee out of a bottle.” (SAC at 6.) “Moments 20 later,” Defendant walked in and “demand[ed]” that he “turn around 21 towards a wall and put his hands behind his back, for no reason.” 22 (Id.) While he was “comply[ing],” Defendant “simultaneously 23 grab[bed]” Plaintiff’s “right wrist while he was turning and 24 closing his bottle lid” and “forcefully shove[d] handcuffs on 25 both of his wrists while pushing them into his back, causing his 26 face and body to hit the wall.” (Id.) The handcuffs were 27 “clamped extremely tight around [his] wrist,” “causing loss of 28 circulation” for “approximately 2 hours,” until they were removed 2 Case 8:22-cv-00202-SPG-JPR Document 17 Filed 07/06/22 Page 3 of 10 Page ID #:71

1 at “another holding tank.” (Id.) 2 Plaintiff at some point asked Defendant, “[W]hy did you push 3 me into the wall and handcuff me?” Defendant replied, “[B]ecause 4 you[’re] in jail.” (Id.) Plaintiff “complained” to Defendant 5 that “his hand was going numb.” (Id.) Defendant “did not 6 respond.” (Id.) Plaintiff “requested medical attention” in a 7 grievance the next day, but it “was never responded to.” (Id.) 8 At the time, he was “suffering ongoing spontaneous nerve pain.” 9 (Id.) 10 Plaintiff seeks $1 million because of the “punitive, 11 emotional distress, physical pain, and deliberate indifference” 12 “implemented” by Defendant. (Id. at 8.) 13 STANDARD OF REVIEW 14 A complaint may be dismissed as a matter of law for failure 15 to state a claim when “there is no cognizable legal theory or an 16 absence of sufficient facts alleged to support a cognizable legal 17 theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 18 1035, 1041 (9th Cir. 2010) (as amended) (citation omitted); 19 accord O’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008). In 20 considering whether a complaint states a claim, a court must 21 generally accept as true the factual allegations in it. Ashcroft 22 v. Iqbal, 556 U.S. 662, 678 (2009); Hamilton v. Brown, 630 F.3d 23 889, 892-93 (9th Cir. 2011). The court need not accept as true, 24 however, “allegations that are merely conclusory, unwarranted 25 deductions of fact, or unreasonable inferences.” In re Gilead 26 Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation 27 omitted); see also Shelton v. Chorley, 487 F. App’x 388, 389 (9th 28 Cir. 2012) (finding that district court properly dismissed civil- 3 Case 8:22-cv-00202-SPG-JPR Document 17 Filed 07/06/22 Page 4 of 10 Page ID #:72

1 rights claim when plaintiff’s “conclusory allegations” did not 2 support it). 3 Although a complaint need not include detailed factual 4 allegations, it “must contain sufficient factual matter, accepted 5 as true, to ‘state a claim to relief that is plausible on its 6 face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 570 (2007)); Yagman v. Garcetti, 852 F.3d 8 859, 863 (9th Cir. 2017). A claim is facially plausible when it 9 “allows the court to draw the reasonable inference that the 10 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 11 at 678. “A document filed pro se is ‘to be liberally construed,’ 12 and ‘a pro se complaint, however inartfully pleaded, must be held 13 to less stringent standards than formal pleadings drafted by 14 lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per 15 curiam) (citation omitted) (quoting Estelle v. Gamble, 429 U.S. 16 97, 106 (1976)). 17 DISCUSSION 18 Plaintiff claims that Defendant used excessive force, 19 unreasonably searched him, was deliberately indifferent to his 20 medical needs, and assaulted and battered him.2 (See SAC at 4, 21 22 2 Plaintiff suggests that Defendant also violated his equal- protection rights. (See SAC at 6-7.) But he doesn’t allege that 23 he is a member of a protected class or that Defendant handcuffed him or denied medical treatment because of that class. Any such 24 claim therefore fails. See Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998) (finding that district court properly 25 dismissed equal-protection claim when plaintiff failed to allege 26 that he was member of protected class); Irvin v. Baca, No. CV 03-2565-AHS (CW)., 2011 WL 838915, at *24-25 (C.D. Cal. Jan. 18, 27 2011) (finding that complaint failed to state equal-protection claim because allegations were conclusory and didn’t suggest 28 defendant’s conduct was racially motivated), accepted by 2011 WL 4 Case 8:22-cv-00202-SPG-JPR Document 17 Filed 07/06/22 Page 5 of 10 Page ID #:73

1 6-8.) 2 I. Section 1983 Claims 3 As the Magistrate Judge explained to Plaintiff, the “Ninth 4 Circuit has allowed excessive force claims based on handcuffing 5 to proceed to the jury where repeated requests to loosen the 6 handcuffs were ignored and the plaintiff suffered some injury.” 7 Chambers v. Steiger, No. C14-1678-JCC-MAT, 2015 WL 9872531, at *7 8 (W.D. Wash. Oct. 29, 2015), accepted by 2016 WL 235764 (W.D. 9 Wash. Jan. 20, 2016); see Alexander v. Cnty. of L.A., 64 F.3d 10 1315, 1322-23 (9th Cir. 1995) (finding that although question was 11 “close,” force may not have been reasonable when officers waited 12 35 to 40 minutes before adjusting plaintiff’s handcuffs after he 13 “repeatedly” complained he was dialysis patient, officer had 14 immediately noticed that plaintiff’s “wrist was kind of mushy or 15 soft,” and plaintiff’s hand was still swollen and numb nine 16 months later). 17 Such a claim fails, however, if a plaintiff doesn’t allege 18 the surrounding circumstances or state that he asked more than 19 once to have the handcuffs loosened. See Salazar v. L.A. Cnty. 20 Sheriff’s Dep’t, No. CV 17-07686-ODW (DFM), 2021 WL 3438653, at 21 *2 (C.D. Cal. July 6, 2021) (rejecting without leave to amend 22 excessive-force claim because plaintiff didn’t allege facts 23 showing how handcuffs caused him pain or injury or how he 24 communicated that to defendants), accepted by 2021 WL 4338946 25 (C.D. Cal. Sept. 23, 2021); Johnson v. Frauenheim, No. 1:18-cv- 26 01477-AWI-BAM (PC), 2021 WL 5236498, at *8 (E.D. Cal. Nov. 10, 27 28 835834 (C.D. Cal. Feb. 28, 2011). 5 Case 8:22-cv-00202-SPG-JPR Document 17 Filed 07/06/22 Page 6 of 10 Page ID #:74

1 2021) (rejecting without leave to amend excessive-force claim 2 because plaintiff didn’t allege that he asked defendant “more 3 than once to loosen” handcuffs or that defendant “otherwise knew 4 that the handcuffs were too tight and were causing [p]laintiff to 5 suffer severe pain”), accepted by 2021 WL 5982293 (E.D. Cal. Dec. 6 17, 2021). 7 Although Plaintiff “complained” to Defendant that “his hand 8 was going numb” (SAC at 6), he doesn’t allege the circumstances 9 at the time — how long he had been wearing the handcuffs, for 10 instance — or even what he said despite the Magistrate Judge’s 11 instructions to do so (see Order at 7, May 5, 2022; Order at 5, 12 8, Mar. 1, 2022). Nor does he allege that he requested more than 13 once to have the handcuffs loosened even though the Magistrate 14 Judge pointed out that Ninth Circuit law requires that the force 15 be purposeful or knowing, which generally means multiple 16 requests. (See Order at 6-7, Mar. 1, 2022.) Indeed, given that 17 Defendant “didn’t respond” and might simply not have heard 18 Plaintiff, a constitutional violation could only rest on repeated 19 ignored requests. Cf. Alexander, 64 F.3d at 1323 (holding that 20 jury could find force unreasonable in part because Plaintiff had 21 “repeatedly” requested that handcuffs be loosened but officers 22 didn’t do so for 35 to 40 minutes); Nauman v. Bugado, 374 F. 23 Supp. 2d 893, 899-900 (D. Haw. 2005) (finding that officer’s 24 conduct may not have been reasonable when officer “did not 25 respond” to plaintiff’s “repeated[]” requests to be handcuffed 26 with hands in front of him because shoulder injury prevented him 27 from placing hands behind his back). Because no allegations show 28 that Defendant deliberately ignored more than one request to 6 Case 8:22-cv-00202-SPG-JPR Document 17 Filed 07/06/22 Page 7 of 10 Page ID #:75

1 loosen handcuffs that were too tight and causing Plaintiff severe 2 pain, his excessive-force claim fails. See Salazar, 2021 WL 3 3438653, at *2; Johnson, 2021 WL 5236498, at *8. 4 Plaintiff complains that Defendant “unreasonabl[y] 5 search[ed]” him, violating his 14th Amendment rights. (SAC at 6 7.) Such a claim, however, arises from the Fourth Amendment, not 7 the 14th. See Byrd v. Maricopa Cnty. Sheriff’s Dep’t, 629 F.3d 8 1135, 1140-47 (9th Cir. 2011) (en banc) (applying Fourth 9 Amendment to pretrial detainee’s unreasonable-search claim). At 10 any rate, no specific factual allegations show that Defendant 11 even searched him, much less did so unreasonably. (See, e.g., 12 SAC at 3 (Plaintiff conclusorily alleging in grievance that 13 Defendant “search[ed]” him “for the reason that [he] was in 14 jail”).) His unreasonable-search claim fails.3 See Fed. R. Civ. 15 P. 8(a) (requiring that pleading contain “short and plain 16 statement” of claim “showing that the pleader is entitled to 17 relief”); Hudson v. Palmer, 468 U.S. 517, 527–28 (1984) (“A right 18 of privacy in traditional Fourth Amendment terms is fundamentally 19 incompatible with the close and continual surveillance of inmates 20 and their cells required to ensure institutional security and 21 internal order.”); Goolsby v. Jenkins, No. 2:15-cv-2477 KJN P, 22 2016 WL 6135876, at *2 (E.D. Cal. Oct. 21, 2016) (dismissing 23 “vague” and “conclusory” complaint alleging unlawful search). 24 Finally, any medical-indifference claim fails. As the 25 26 3 Plaintiff points to People v. West, 170 Cal. App. 3d 326, 329 (1985). (See SAC at 7.) But that case found that a body- 27 cavity search was reasonable. See West, 170 Cal. App. 3d at 333- 34. In any event, Plaintiff nowhere alleges any details concerning 28 any kind of search performed on him. 7 Case 8:22-cv-00202-SPG-JPR Document 17 Filed 07/06/22 Page 8 of 10 Page ID #:76

1 Magistrate Judge explained, although “[p]retrial detainees in 2 state custody ‘have a constitutional right to adequate medical 3 treatment’ under the Fourteenth Amendment,” J.K.J. v. City of San 4 Diego, 17 F.4th 1247, 1256 (9th Cir. 2021) (quoting Sandoval v. 5 Cnty. of San Diego, 985 F.3d 657, 667 (9th Cir. 2021)), that 6 right “hinges on the officer being ‘aware that an inmate is 7 suffering from a serious acute medical condition,’” Hyde v. City 8 of Willcox, 23 F.4th 863, 873 (9th Cir. 2022) (quoting Sandoval, 9 985 F.3d at 680). Like the FAC, the SAC doesn’t allege that 10 Defendant was so aware. 11 Plaintiff alleges that the day after the incident he was 12 “suffering ongoing spontaneous nerve pain.” (SAC at 6.) But as 13 in the Complaint and FAC, he doesn’t say how long the pain 14 lasted, state if he requested or received medical treatment 15 before or after May 12, 2021, or otherwise allege any serious 16 injury. (See Order at 8, May 5, 2022 (finding that Plaintiff 17 failed to state medical-indifference claim because he didn’t 18 allege such facts).) This dooms any medical-indifference claim. 19 See O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (holding 20 that ignoring requests to treat “pains” with over-the-counter 21 medicine wasn’t deliberate indifference); James v. Lee, 485 F. 22 Supp. 3d 1241, 1264 (S.D. Cal. 2020) (finding that medical- 23 indifference claim failed because plaintiff didn’t allege any 24 “apparent and obvious” “significant injury” from handcuffing and 25 because medical providers prescribed only over-the-counter 26 medicine to treat injuries). 27 Plaintiff has now had three chances to plead his federal 28 claims and apparently cannot do so. Because it’s clear that 8 Case 8:22-cv-00202-SPG-JPR Document 17 Filed 07/06/22 Page 9 of 10 Page ID #:77

1 amendment would be futile, these claims are dismissed without 2 leave to amend and with prejudice. See Lopez, 203 F.3d at 1130- 3 31; Zavala, 348 F. App’x at 213. 4 II. State-Law Claims 5 Plaintiff’s remaining claims are based on state law. (See 6 SAC at 4, 6.)4 A federal court should generally decline to 7 exercise supplemental jurisdiction over pendent state-law claims 8 if it has dismissed all claims over which it has original 9 jurisdiction. See 28 U.S.C. § 1367(c)(3); United Mine Workers of 10 Am. v. Gibbs, 383 U.S. 715, 726 (1966); see also Carnegie-Mellon 11 Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual 12 case in which all federal-law claims are eliminated before trial, 13 the balance of factors to be considered under the pendent 14 jurisdiction doctrine . . . will point toward declining to 15 exercise jurisdiction over the remaining state-law claims.”). 16 Because Plaintiff’s federal claims must be dismissed, the Court 17 declines to exercise supplemental jurisdiction over any state-law 18 claims. 19 ********************* 20 The Court has read and accepts the Magistrate Judge’s March 21 1 and May 5, 2022 dismissal orders. For the reasons stated 22 above, it is ORDERED that this action is dismissed with prejudice 23 as to Plaintiff’s federal claims and without prejudice as to his 24 4 If Plaintiff bases these claims on the California Penal Code 25 (see SAC at 6 (citing penal code)), they fail because those 26 statutes don’t provide a private right of action. See Ellis v. City of San Diego, 176 F.3d 1183, 1189 (9th Cir. 1999) (as amended) 27 (district court properly dismissed claims brought under California Penal Code because state criminal statutes don’t create enforceable 28 individual rights). 9 Case 8:22-cv-00202-SPG-JPR Document 17 Filed 07/06/22 Page 10 of 10 Page ID #:78

1 state-law claims. 2 LET JUDGMENT BE ENTERED ACCORDINGLY. 3 4 DATED: July 6, 2022

SHERILYN PEACE GARNETT

5 U.S. DISTRICT JUDGE 6 Presented by: 7 __________________________ 8 Jean P. Rosenbluth U.S. Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10