1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DENNIS LAMAR GARDNER, JR., No. 2:19-CV-1432-DMC-P 12 Plaintiff, 13 v. ORDER 14 VALLEJO POLICE DEPARTMENT, et al., 15 Defendants. 16

17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is plaintiff’s first amended complaint (ECF No. 12). 19 The Court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 26 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 28 1 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 2 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege 3 with at least some degree of particularity overt acts by specific defendants which support the 4 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 5 impossible for the Court to conduct the screening required by law when the allegations are vague 6 and conclusory. 7 8 I. PLAINTIFF’S ALLEGATIONS 9 Plaintiff names seven defendants: (1) the Vallejo Police Department, (2) the City 10 of Vallejo, (3) Vallejo Police Officer Steve Darden, (4) US Marshal Hak, (5) Solano DA 11 Investigator Myer, (6) California Department of Rehabilitation Agent Terrel, and (7) Vallejo 12 Police Officer Sean Kenney. 13 On April 30, 2017, defendant Darden, a Vallejo Police Officer, obtained an arrest 14 warrant for plaintiff for violating his probation. Plaintiff, however, denies that he was on 15 probation when the warrant was issued. On May 30, 2017, defendants Hak, Kenney, Myer, and 16 Terrel were conducting a separate investigation when they recognized plaintiff at Dick Bass Field 17 in Vallejo, California. Defendant Hak confronted plaintiff and informed him of the outstanding 18 warrant for his arrest. Plaintiff denied being on probation as the warrant claimed. Nevertheless, 19 plaintiff was arrested and placed in a “hog-tie” with his hands tied to his feet. 20 At the Vallejo Police station, plaintiff requested a property receipt for his 21 belongings, but never received one. Plaintiff’s cellphone was missing from the log of belongings 22 during his booking at Solano County Jail, and he was held for five days without being charged. 23 The charges against plaintiff were dismissed on May 3, 2017, because he was not previously on 24 probation. Plaintiff’s cellphone was never located nor returned to him. 25 Plaintiff claims his Fourth Amendment and Fourteenth Amendment due process 26 rights were violated by being deprived of his freedom and property. Plaintiff also claims that 27 defendants used excessive force during his arrest in violation of his Eighth Amendment rights. 28 Additionally, plaintiff claims defendants’ actions caused him to suffer extreme emotional distress. 1 II. DISCUSSION 2 A. Causal Connection 3 i. Defendants City of Vallejo and Vallejo Police Department 4 Plaintiff has failed to state a cognizable claim against either the City of Vallejo or 5 the Vallejo police department (together referred as “municipal defendants”). 6 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 7 connection or link between the actions of the named defendants and the alleged deprivations. See 8 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 9 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 10 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 11 an act which he is legally required to do that causes the deprivation of which complaint is made.” 12 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 13 concerning the involvement of official personnel in civil rights violations are not sufficient. See 14 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 15 specific facts as to each individual defendant’s causal role in the alleged constitutional 16 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 17 Additionally, municipalities and other local government units are among those 18 “persons” to whom § 1983 liability applies. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 19 690 (1978). Counties and municipal government officials are also “persons” for purposes of § 20 1983. See id. at 691; see also Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 21 1989). A local government unit, however, may not be held responsible for the acts of its 22 employees or officials under a respondeat superior theory of liability. See Bd. of County 23 Comm’rs v. Brown, 520 U.S. 397, 403 (1997). Thus, municipal liability must rest on the actions 24 of the municipality, and not of the actions of its employees or officers. See id. To assert municipal 25 liability, therefore, the plaintiff must allege that the constitutional deprivation complained of 26 resulted from a policy or custom of the municipality. See id. A claim of municipal liability under 27 § 1983 is sufficient to withstand dismissal even if it is based on nothing more than bare 28 allegations that an individual defendant’s conduct conformed to official policy, custom, or 1 practice. See Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988). 2 Plaintiff fails to allege how the municipal defendants violated plaintiff’s 3 constitutional rights. Plaintiff never mentions any factual allegations claiming the municipal 4 defendants had implemented a policy or custom that deprived plaintiff of his constitutional rights. 5 Plaintiff claims defendant Darden, as an employee of Vallejo Police Department, issued an 6 improper warrant against him. However, plaintiff does not claim that Darden’s conduct was in 7 conformity to some official policy, custom, or practice of issuing meritless warrants. Similarly, 8 plaintiff neither alleges that the municipal defendants implemented a policy of withholding 9 plaintiff’s property, nor explains how being detained in Solano County Jail was a violation of his 10 due process rights by the municipal defendants. 11 ii. Defendant Steve Darden 12 Plaintiff alleges defendant Darden issued the arrest warrant for probation violation 13 despite plaintiff not being on probation. However, plaintiff fails to allege specific misconduct by 14 defendant Darden that led to the violation of plaintiff’s constitutional rights. Since plaintiff fails 15 to allege facts indicating the manner in which defendant Darden engaged in alleged 16 unconstitutional acts beyond merely issuing the warrant, plaintiff fails to state a cognizable claim 17 under § 1983. 18 B. Excessive Force 19 Plaintiff’s complaint against defendants Kenney, Hak, Myer, and Terrel (“arresting 20 defendants”) also fails to state a cognizable excessive force claim. 21 A claim of excessive force in the course of making a seizure of a person is 22 analyzed under the Fourth Amendment's objective reasonableness standard. See Brooks v. Clark 23 County, 828 F.3d 910 (9th Cir. 2016). In determining the reasonableness of force used to effect a 24 seizure, governmental interests are balanced against the suspect’s private interests by measuring 25 the following factors: (1) severity of the crime at issue; (2) whether the suspect posed an 26 immediate threat to the safety of officers or others; (3) whether the suspect was actively resisting 27 arrest or attempting to evade arrest by flight, and any other exigent circumstances that existed at 28 the time of arrest. Id. at 920. 1 Plaintiff alleges defendants Kenney, Hak, Myer, and Terrel used excessive force 2 against him during his arrest at Dick Bass Field in Vallejo, California on May 30, 2017. The 3 allegation that plaintiff was “hog-tied” during his arrest possibly indicates a valid excessive force 4 claim, but plaintiff fails to specify the names of liable actors. Plaintiff alleges defendant Hak 5 approached him to inform him that the rest of the arresting defendants “intended to arrest” him. 6 ECF 12 at 5. Plaintiff proceeds to allege being “hog-tied” without referencing any individual’s 7 conduct, and then being transported to the police station by another unidentified officer. It is not 8 clear whether plaintiff means to suggest that all arresting defendants actively “hog-tied” him, or 9 whether they were simply present during his arrest. The circumstances of plaintiff’s arrest are still 10 unclear and further clarification is needed to determine whether a valid excessive force claim 11 exists. 12 13 III. CONCLUSION 14 Plaintiff has elaborated upon the factual basis for his claims in his first amended 15 complaint, but still only states vague associations between defendants and the constitutional 16 violations he claims. Because it is possible that the deficiencies identified in this order may be 17 cured by amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the 18 entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff 19 is informed that, as a general rule, an amended complaint supersedes the original complaint. See 20 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 21 amend, all claims alleged in the original complaint which are not alleged in the amended 22 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 23 plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make 24 plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 25 complete in itself without reference to any prior pleading. See id. 26 / / / 27 / / / 28 / / / 2 LUV VETO OUI OUT IO er AY VI

1 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 2 || conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See 3 | Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 4 | each named defendant is involved, and must set forth some affirmative link or connection 5 | between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 6 | 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 7 Finally, plaintiff is warned that failure to file an amended complaint within the 8 | time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 9 | 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 10 | with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 11 | See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s first amended complaint is dismissed with leave to amend; and 14 2. Plaintiff shall file a second amended complaint within 30 days of the date 15 | of service of this order. 16 17 | Dated: June 10, 2020 18 DENNIS M. COTA 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28