1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MOODY WOODROW TANKSLEY, No. 2:21-cv-02225 KJM AC (PS) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 SACRAMENTO COUNTY POLICE

DEPT.; J. HON.,

15 Defendant. 16

17 18 Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the 19 undersigned by E.D. Cal. 302(c)(21). Plaintiff previously filed a request for leave to proceed in 20 forma pauperis (“IFP”) (ECF No. 2) and that request was granted (ECF No. 4). See 28 U.S.C. 21 § 1915(a)(1). Plaintiff’s initial complaint was rejected on screening and plaintiff was given leave 22 to file an amended complaint. ECF No. 4. A first amended complaint (“FAC”) was filed on 23 January 19, 2022. ECF No. 5. That complaint is now before the court for screening. Based on 24 the facts alleged in the FAC, the undersigned recommends this case be dismissed without further 25 leave to amend because the facts cannot support a claim that would entitle plaintiff to relief. 26 I. THE SCREENING REQUIREMENT 27 The federal IFP statute requires federal courts to dismiss a case if the action is legally 28 “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 1 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 2 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 3 Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the 4 court will (1) accept as true all of the factual allegations contained in the complaint, unless they 5 are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the 6 plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von 7 Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. 8 denied, 564 U.S. 1037 (2011). 9 The court applies the same rules of construction in determining whether the complaint 10 states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court 11 must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must 12 construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a 13 less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 14 (1972). However, the court need not accept as true conclusory allegations, unreasonable 15 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 16 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice 17 to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 18 556 U.S. 662, 678 (2009). 19 To state a claim on which relief may be granted, the plaintiff must allege enough facts “to 20 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has 21 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 22 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 23 678. A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity 24 to amend, unless the complaint’s deficiencies could not be cured by amendment. See Noll v. 25 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in 26 Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc). 27 //// 28 //// 1 II. THE COMPLAINT 2 Plaintiff sues the Sacramento County Police Department (sic); J. Hon, Sacramento County 3 Police Chief (sic); and unnamed officers. ECF No. 5 at 1-2. Plaintiff checks the box “federal 4 question” as the basis for federal court jurisdiction. Id. at 3. Plaintiff alleges “the Defendants 5 attempted to kill this plaintiff with blood clots in legs assisted in medical doctors report” and 6 references a medical report from “U.C. Davis Emergency Hospital” attached to his complaint. Id. 7 at 4. Plaintiff alleges that he was denied help by Sacramento police officers in response to a 8 “911” call, preventing him from getting treatment for potentially fatal blood clots in the legs. Id. 9 at 5. 10 III. DISCUSSION 11 Plaintiff’s complaint must be dismissed without further leave to amend because, because 12 the facts alleged do not support any claim for relief. Plaintiff alleges in sum that he called 911 13 and did not receive the desired response from officers. Although the complaint does not invoke 14 any particular law or constitutional provision, or provide details of the alleged incident, it is clear 15 that the gravamen of the complaint provides no basis for a cause of action that can proceed in this 16 court. That is because the Constitution “confer[s] no affirmative right to governmental aid, even 17 where such aid may be necessary to secure life, liberty, or property interests[.]” DeShaney v. 18 Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). 19 “As a general rule, members of the public have no constitutional right to sue state 20 employees who fail to protect them against harm[.]” L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 21 1992). There are two recognized exceptions to this general rule: where there is a “special 22 relationship” between the member of the public and the state employee, or where the state officer 23 created the danger at issue (“danger creation” exception). Id. Plaintiff does not allege facts that 24 would support the existence of any special relationship. Based on the facts stated, he was simply 25 a civilian who called 911 for medical help. The attached medical records list plaintiff’s home 26 address (e.g., ECF No. 5 at 19), indicating that plaintiff was not being held in any type of state- 27 run facility when 911 was called. Nor does the “danger creation” exception apply to this 28 situation; any danger to plaintiff’s health or life was created by plaintiff’s own body, not by any 1 || acts of the police or 911 emergency response system. 2 Failure of police to respond to a 911 call for medical assistance does not give rise to any 3 || federal cause of action that the court is aware of, and plaintiff identifies none. Moreover, it is 4 || apparent from the attached medical records that plaintiff recerved emergency medical care on the 5 || dates in question, as well as follow-up care. Accordingly, this case should be dismissed without 6 || further leave to amend. 7 IV. CONCLUSION 8 For the reasons explained above, IT IS HEREBY RECOMENDED that the operative First 9 || Amended Complaint (ECF No. 5) be dismissed for failure to state a claim upon which relief can 10 || be granted and that this case be closed. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one 13 | (21) days after being served with these findings and recommendations, plaintiff may file written 14 || objections with the court. Such document should be captioned “Objections to Magistrate Judge’s 15 || Findings and Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file 16 || objections within the specified time may waive the right to appeal the District Court’s order. 17 || Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 18 | DATED: January 31, 2022 ~ 19 Chthwen— Clare

ALLISON CLAIRE

20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28