1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GREGORY ROSSIGNON, Case No. 22-cv-03797-RMI

8 Plaintiff,

ORDER OF DISMISSAL WITH LEAVE

9 v. TO AMEND

10 ANTIOCH POLICE DEPARTMENT, et al., Defendants. 11

12 13 Plaintiff, a detainee proceeding pro se, filed a civil rights complaint under 42 U.S.C. 14 § 1983. He has been granted leave to proceed in forma pauperis. 15 DISCUSSION 16 1. Standard of Review 17 Federal courts must engage in a preliminary screening of cases in which prisoners seek 18 redress from a governmental entity, or from an officer or employee of a governmental entity. 28 19 U.S.C. 1915A(a). In its review, the court must identify any cognizable claims, and dismiss any 20 claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or 21 seek monetary relief from a defendant who is immune from such relief. Id. at § 1915A(b)(1), (2). 22 Further, it should be noted that pleadings submitted by pro se parties must be liberally construed. 23 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 25 claim showing that the pleader is entitled to relief.” While specific facts are not necessary, the 26 statement needs to give the defendant fair notice of the nature of the claim and the grounds upon 27 which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Although a plaintiff need not include 1 cause of action and state conclusions; rather a plaintiff must state factual allegations sufficient to 2 raise the entitlement to relief “above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 3 U.S. 544, 555 (2007). A complaint must proffer “enough facts to state a claim to relief that is 4 plausible on its face.” Id. at 570. The Supreme Court recently explained this standard: “[w]hile 5 legal conclusions can provide the framework of a complaint, they must be supported by factual 6 allegations . . . [and] [w]hen there are well-pleaded factual allegations, a court should assume their 7 veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft 8 v. Iqbal, 556 U.S. 662, 679 (2009). 9 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 10 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 11 the alleged deprivation was committed by a person acting under the color of state law. West v. 12 Atkins, 487 U.S. 42, 48 (1988). 13 2. Legal Claims 14 Plaintiff alleges that defendants used excessive force during his arrest. An allegation of the 15 use of excessive force by a law enforcement officer in effectuating an arrest states a valid claim 16 under 42 U.S.C. § 1983. See Rutherford v. City of Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986), 17 overruled on other grounds by Graham v. Connor, 490 U.S. 386 (1989); see also Byrd v. Phoenix 18 Police Dep’t, 885 F.3d 639, 641-42 (9th Cir. 2018) (pro se allegations that police officers “beat 19 the crap out of” plaintiff and caused him severe injury enough to support a legally cognizable 20 claim under § 1983). Excessive force claims which arise in the context of an arrest or investigatory 21 stop of a free citizen are analyzed under the Fourth Amendment reasonableness standard. See 22 Graham, 490 U.S. at 394-95. 23 In order to recover damages for an allegedly unconstitutional conviction or imprisonment, 24 or for other harm caused by actions whose unlawfulness would render a conviction or sentence 25 invalid under § 1983, a plaintiff must prove that the conviction or sentence has been reversed on 26 direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make 27 such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. 1 is, one bearing such a relationship to a conviction or sentence that has not been so invalidated, is 2 not cognizable under § 1983. Id. at 487. 3 In a different context, in Wallace v. Kato, 549 U.S. 384, 393 (2007), the Court held that the 4 “Heck rule for deferred accrual [of the statute of limitations] is called into play only when there 5 exists ‘a conviction or sentence that has not been . . . invalidated,’ that is to say, an ‘outstanding 6 criminal judgment.’” Id. at 391-93 (quoting Heck, 512 U.S. at 486-87). The Heck rule delays 7 accrual of the limitations period only if there is an existing conviction on the date the statute of 8 limitations begins to run, which in the case of wrongful arrest or wrongful imprisonment claims is 9 when the plaintiff’s confinement is no longer without legal process, but rather becomes a 10 confinement pursuant to legal process, for example, when he or she is bound over by a judge or 11 arraigned on charges. Id. at 389-90. Although the Court was only considering when the statute of 12 limitations began running on a false arrest or false imprisonment claim, the discussion quoted 13 suggests that Heck does not apply if there is no extant conviction – for instance, if a plaintiff has 14 only been arrested or charged. 15 Accordingly, if a plaintiff files a § 1983 false arrest claim before he or she is convicted, or 16 files any other claim related to rulings that likely will be made in a pending or anticipated criminal 17 trial, it is within the power of the district court, and accords with common practice, to stay the civil 18 action until the criminal case or the likelihood of a criminal case is ended. Id. at 393-94. If the 19 plaintiff is thereafter convicted, and if the stayed civil suit would impugn that conviction, Heck 20 requires dismissal; otherwise, the case may proceed. Id. at 394. 21 Plaintiff states that on January 24, 2019, he was running due to fear for his safety when he 22 hid in a doghouse. Police officers yelled for him to come out and he exited with his hands up. He 23 contends that an officer released his K9 unit and the dog attacked him and other officers punched 24 him and hit him with a gun. Plaintiff identifies the officers involved but fails to describe the 25 specific actions of each officer. The complaint is dismissed with leave to amend to provide more 26 information. Plaintiff should identify each officer and describe their actions and how they violated 27 his constitutional rights. 1 Furthermore, Plaintiff is currently in custody. It is not clear if he is in custody related to 2 || this arrest or the status of the arrest. Depending on the charges, plaintiff cannot obtain money 3 damages unless the charges were dropped, he was acquitted, or the conviction expunged. If the 4 || prosecution is ongoing, this case must be stayed until the criminal case concludes. In an amended 5 complaint, Plaintiff should provide more information about the status of the criminal case and the 6 || reason he is currently in custody. 7 CONCLUSION 8 1. The Complaint is DISMISSED with leave to amend in accordance with the standards 9 set forth above. The amended complaint must be filed within twenty-eight (28) days of the date 10 || this order is filed, and must include the caption and civil case number used in this order and the 11 words “AMENDED COMPLAINT” on the first page. Because an amended complaint completely 12 || replaces the original complaint, Plaintiff must include in it all the claims he wishes to present. See 5 13 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material 14 || from the original Complaint by reference. Failure to amend within the designated time will result 3 15 in dismissal of this case. a 16 2. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 3 17 informed of any change of address by filing a separate paper with the clerk, headered “Notice of 18 || Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to do so 19 may result in dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 20 Procedure 41(b). 21 IT IS SO ORDERED. 22 || Dated: August 17, 2022 23 Hf] 24 95 ROBERT M. ILLMAN United States Magistrate Judge 26 27 28