1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL ANTHONY LYNCH , Case No.: 18-cv-01677-DMS-JLB

12 REPORT AND Plaintiff,

RECOMMENDATION RE:

13 v. DEFENDANT JAMES BURNETT’S 14 MOTION TO DISMISS KEVIN BURNETT, et al.,

PLAINTIFF’S SECOND AMENDED

15

COMPLAINT

16 Defendants. [ECF No. 28] 17 18 19 On July 23, 2018, Plaintiff Paul Anthony Lynch (“Plaintiff”), a state prisoner 20 proceeding pro se and in forma pauperis, commenced this civil rights action pursuant to 21 42 U.S.C. § 1983. (ECF Nos. 1, 3.) On November 2, 2018, Plaintiff filed a First Amended 22 Complaint (“FAC”) against Defendants Matthew Botkin (“Botkin”), Zachary Pfannestiel 23 (“Pfannestiel”), Christian Sharp (“Sharp”), and James Burnett (“Burnett” or “Defendant”). 24 (ECF No. 5.) 25 All defendants moved to dismiss the FAC. (ECF No. 12.) The undersigned issued 26 a Report and Recommendation, recommending that the Court (1) deny the motion as to 27 Plaintiff’s excessive force claim against Botkin; (2) grant the motion as to Plaintiff’s 28 excessive force claim against Pfannestiel, Sharp, and Burnett, with leave to amend; and (3) 1 grant the motion as to Plaintiff’s failure to provide adequate medical care claim against all 2 defendants, with leave to amend. (ECF No. 23.) On July 22, 2019, the Honorable Dana 3 M. Sabraw, United States District Judge, adopted the Report and Recommendation and 4 gave Plaintiff an opportunity to file a Second Amended Complaint. (ECF No. 25.) 5 On August 5, 2019, Plaintiff filed a Second Amended Complaint (“SAC”) against 6 Burnett only. (ECF No. 27.) Presently before the Court is Burnett’s motion to dismiss the 7 SAC. (ECF No. 28.) Plaintiff filed an opposition to the motion (ECF No. 30), and Burnett 8 filed a reply in support (ECF No. 31). 9 The Court submits this Report and Recommendation to Judge Sabraw pursuant to 10 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1 of the United States District Court for the 11 Southern District of California. After a thorough review of Plaintiff’s SAC and the parties’ 12 filings, and for the reasons discussed below, the Court RECOMMENDS that Burnett’s 13 motion to dismiss Plaintiff’s SAC be DENIED. 14 I. BACKGROUND 15 Plaintiff is a state prisoner currently residing at California State Prison, Sacramento. 16 (SAC at 1.) The following facts are taken from Plaintiff’s SAC: 17 On August 8, 2017, Botkin, a Sergeant with the San Diego Police Department 18 (“SDPD”), arrived at Plaintiff’s private residence in San Diego, California and requested 19 that Plaintiff come outside and speak with him regarding a crime that had happened down 20 the street at a neighbor’s house. (Id. at 3.) Plaintiff asked if she was a suspect and Botkin 21 responded, “Yes, you are a suspect.” (Id.) Plaintiff responded that she had not done 22 anything wrong, she had not broken the law, and she was not willing to speak with Botkin. 23 (Id.) Botkin then stated, “Bring your faggot ass out of your house or we will come in your 24 house and drag your faggot ass out.” (Id.) Plaintiff, a transgender male,1 stayed in her 25

26 27 1 In her SAC, Plaintiff identifies herself as a transgender male. (Id. at 3.) Throughout her Opposition, Plaintiff uses female pronouns when referring to herself, so 28 1 house as she feared for her life. (Id.) As more SDPD officers arrived, Plaintiff became 2 more fearful that the officers would kill her or commit bodily injury to her person. (Id.) 3 Burnett, an SDPD detective, also arrived at Plaintiff’s house and started speaking to 4 her. (Id.) During the conversation, Plaintiff heard her back door open and saw Pfannestiel, 5 an SDPD police officer, along with other SDPD officers, running through her kitchen. (Id.) 6 As they came running through the kitchen, Plaintiff exited her home into her front yard 7 with her hands in the air. (Id.) 8 As Plaintiff exited, Burnett was standing right there. (Id.) Plaintiff yelled, “Burnett, 9 don’t let them hurt me.” (Id. at 3-4.) Following Burnett’s directions, Plaintiff walked 10 quickly towards Burnett with her hands in the air. (Id. at 4.) Burnett then grabbed 11 Plaintiff’s right arm and held it, allowing Botkin to grab Plaintiff from the back, pull her 12 hair, yank her neck back, and place his thumb into her carotid artery. (Id.) Botkin’s actions 13 cut off Plaintiff’s blood supply to her brain, which knocked her out while she was standing 14 in an upright position and caused her to fall face forward onto the hot pavement. (Id.) The 15 fall caused Plaintiff injuries to her face, knees, and feet. (Id.) 16 Plaintiff was not a threat to the officers or Burnett. (Id.) She exited her home with 17 her hands in the air and surrendered to Burnett. (Id.) Plaintiff had no weapons and was 18 wearing a white blouse, panties, and a pair of open-toe high heels at the time she exited her 19 home. (Id.) Burnett had control of the situation, but he chose to hold Plaintiff while Botkin 20 grabbed her and placed a carotid hold. (Id.) Burnett failed to stop Botkin from “attempting 21 to kill” Plaintiff. (Id.) Instead, Burnett elected to allow Botkin “to attempt to kill [Plaintiff] 22 due to [her] gender association.” (Id.) 23 Based on the foregoing, Plaintiff claims that Burnett violated her Fourth Amendment 24 right to be free from cruel and unusual punishment. (Id. at 3-4.) Burnett now moves to 25 dismiss Plaintiff’s SAC pursuant to Federal Rule of Civil Procedure 12(b)(6) on the basis 26 that it fails to state a claim against him upon which relief can be granted. (ECF No. 28.) 27 /// 28 /// 1 II. LEGAL STANDARD 2 A. Motion to Dismiss for Failure to State a Claim 3 The Federal Rules of Civil Procedure require that a plaintiff’s complaint must 4 provide a “short and plain statement of the claim showing that [he] is entitled to relief.” 5 Fed. R. Civ. P. 8(a)(2). The pleading standard that Rule 8 announces does not require 6 detailed factual allegations, and the statement need only “give the defendant fair notice of 7 what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 8 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 11 550 U.S. at 555). 12 A motion to dismiss for failure to state a claim upon which relief can be granted, 13 pursuant to Federal Rule of Civil Procedure 12(b)(6), tests the legal sufficiency of the 14 claims in the complaint. See Twombly, 550 U.S. at 555. “To survive a motion to dismiss, 15 a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 16 relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 17 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows 18 the court to draw the reasonable inference that the defendant is liable for the misconduct 19 alleged.” Id. (quoting Twombly, 550 U.S. at 556). “Determining whether a complaint 20 states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing 21 court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. 22 In ruling on a Rule 12(b)(6) motion to dismiss, the court does not look at whether 23 the plaintiff will “ultimately prevail but whether the [plaintiff] is entitled to offer evidence 24 to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court must 25 assume the truth of the facts presented and construe all inferences from them in the light 26 most favorable to the nonmoving party. Buckey v. County of Los Angeles, 968 F.2d 791, 27 794 (9th Cir. 1992). However, the court is “not bound to accept as true a legal conclusion 28 couched as a factual allegation.” Iqbal, 556 U.S. at 678. 1 B. Standards Applicable to Pro Se Litigants 2 With respect to an inmate who proceeds pro se, his factual allegations, “however 3 inartfully pleaded,” must be held “to less stringent standards than formal pleadings drafted 4 by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Erickson v. Pardus, 5 551 U.S. 89, 94 (2007) (reaffirming that this standard applies to pro se pleadings post- 6 Twombly). Thus, where a plaintiff appears pro se in a civil rights case, the Court must 7 construe the pleadings liberally and afford plaintiff any benefit of the doubt. Hebbe v. 8 Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, in giving liberal interpretation to a 9 pro se civil rights complaint, courts may not “supply essential elements of the claim that 10 were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 11 (9th Cir. 1982). “The plaintiff must allege with at least some degree of particularity overt 12 acts which defendants engaged in that support the plaintiff’s claim.” Jones v. Cmty. 13 Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (internal quotation omitted). 14 Before dismissing a pro se civil rights complaint for failure to state a claim, the 15 plaintiff should be given a statement of the complaint’s deficiencies and an opportunity to 16 cure. Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624-25 (9th Cir.1988). Only if it 17 is absolutely clear that the deficiencies cannot be cured by amendment should the 18 complaint be dismissed without leave to amend. Id.; see also James v. Giles, 221 F.3d 19 1074, 1077 (9th Cir. 2000). 20 III. DISCUSSION 21 Burnett moves to dismiss Plaintiff’s Fourth Amendment claim pursuant to Federal 22 Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be 23 granted. (ECF No. 28.)2 24

25 2 Plaintiff characterizes her claim as a “Fourth Amendment Violation [-] 26 Freedom from cruel and unusual punishment.” (ECF No. 27 at 3.) As an initial matter, 27 Burnett points out that the right to be free from cruel and unusual punishment is an Eighth Amendment right, not a Fourth Amendment right, and Burnett argues that “Plaintiff is not 28 1 A. Legal Standard 2 Claims against law enforcement officers for the use of excessive force during an 3 arrest are analyzed under the Fourth Amendment’s “objective reasonableness” standard. 4 See Plumhoff v. Rickard, 572 U.S. 765, 774 (2014); Graham v. Connor, 490 U.S. 386, 395- 5 99 (1989); Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010). The relevant question 6 is “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and 7 circumstances confronting them, without regard to [the officers’] intent or motivation.” 8 Graham, 490 U.S. at 397. In making this determination, the trier of fact must balance “the 9 nature and quality of the intrusion on the individual’s Fourth Amendment interests against 10 the countervailing governmental interests at stake.” Id. at 396 (internal quotation marks 11 and citations omitted). In other words, “the type and amount of force inflicted” must be 12 evaluated and weighed against such factors as “(1) the severity of the crime at issue, (2) 13 whether the suspect poses an immediate threat to the safety of the officers or others, and 14 (3) whether he is actively resisting arrest or attempting to evade arrest by flight.” Chew v. 15 Gates, 27 F.3d 1432, 1440 (9th Cir. 1994) (citing Graham, 490 U.S. at 396). “The 16 ‘reasonableness’ of a particular use of force must be judged from the perspective of a 17 reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 18 490 U.S. at 396. 19 / / / 20 / / / 21

22 23 issue, she had not been convicted of any crime and had not been sentenced. (See ECF No. 28-1 at 4-5.) However, as Plaintiff is, in substance, alleging a Fourth Amendment 24 excessive force claim for failure to protect, the Court will liberally construe it as such. See 25 Skinner v. Switzer, 562 U.S. 521, 530 (2011) (“[A] complaint need not pin plaintiff’s claim for relief to a precise legal theory” or include “exposition of his legal argument,” so long 26 as it constitutes a “plausible ‘short and plain’ statement of the plaintiff’s claim.”); see also 27 Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008) (“A complaint need not identify the statutory or constitutional source of the claim raised in order to survive a motion to 28 1 B. Analysis 2 Plaintiff claims that Burnett failed to protect her from Botkin’s alleged assault and 3 attempt to kill her. (SAC at 2-6.) “Pursuant to a long line of civil cases, police officers 4 have a duty to intercede when their fellow officers violate the constitutional rights of a 5 suspect or other citizen.” United States v. Koon, 34 F.3d 1416, 1447 n.25 (9th Cir. 1994), 6 rev’d in part on other grounds by Koon v. United States, 518 U.S. 81 (1996). In such cases, 7 “the constitutional right violated by the passive defendant is analytically the same as the 8 right violated by the person who strikes the blows.” Id. “Thus[,] an officer who failed to 9 intercede when his colleagues were depriving a victim of his Fourth Amendment right to 10 be free from unreasonable force in the course of an arrest would, like his colleagues, be 11 responsible for subjecting the victim to a deprivation of his Fourth Amendment rights.” Id. 12 However, “officers can be held liable for failing to intercede only if they had an 13 opportunity to intercede.” Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000); see 14 e.g., Knapps v. City of Oakland, 647 F. Supp. 2d 1129, 1159-60 (N.D. Cal. 2009), amended 15 in part (Sept. 8, 2009) (finding after a bench trial that the defendant officers “did not have 16 a realistic opportunity to intercede” because “the violation [a carotid hold] happened so 17 quickly”). “Officers may not be held liable merely for being present at the scene of a 18 constitutional violation or for being a member of the same operational unit as a 19 wrongdoer.” Felarca v. Birgeneau, 891 F.3d 809, 820 (9th Cir. 2018) (citing Jones v. 20 Williams, 297 F.3d 930, 936-37 (9th Cir. 2002)). 21 In this case, the Court previously held that Plaintiff sufficiently alleged a Fourth 22 Amendment excessive force claim against Botkin based on substantially the same set of 23 facts alleged in the SAC.3 (See ECF Nos. 23; 25.) In the SAC, Plaintiff alleges that 24

25 3 The Court notes that, although Plaintiff refers to Botkin as a defendant in her 26 Opposition (see ECF No. 30 at 3-4), Botkin is no longer a defendant in this case because 27 Plaintiff did not name him as a defendant in the SAC. The SAC superseded (i.e., replaced) Plaintiff’s prior complaint. See Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 28 1 although she initially refused to come out of her house to speak to the officers, when she 2 did exit her home, she came out without weapons, wearing underwear, a blouse, and heels, 3 and had her hands up. (SAC at 3-4.) As instructed by Burnett, she walked quickly towards 4 Burnett, keeping her hands in the air. (Id.) Plaintiff further alleges that Burnett grabbed 5 her right arm and had control of the situation when Botkin used a carotid hold4 on her. (Id. 6 at 4.) The carotid hold cut off Plaintiff’s blood supply and caused her to fall face forward 7 onto the pavement, causing injuries. (Id.) Accepting these allegations as true, the Court 8 finds, as it did previously, that Plaintiff has plausibly alleged that Botkin’s use of a carotid 9 hold was not objectively reasonable in light of the facts and circumstances confronting him. 10 (See ECF No. 23 at 7-8.) 11 Taking the foregoing into consideration, the Court finds that Plaintiff has plausibly 12 alleged a Fourth Amendment excessive force claim against Burnett. Accepting Plaintiff’s 13 allegations as true, Burnett was not merely present at the scene of the alleged constitutional 14 violation. Plaintiff alleges in the SAC that Burnett grabbed her right arm and held it, 15

16 17 the original, the latter being treated thereafter as non-existent.”) (internal quotation marks and citation omitted); see also CivLR 15.1.a (“Every pleading to which an amendment is 18 permitted as a matter of right or has been allowed by court order, must be complete in itself 19 without reference to the superseded pleading.”) Plaintiff may have intended to include Botkin in the SAC or she be under the misapprehension that she did so, but she did not. 20

21 4 “A carotid hold involves the officer placing his or her arm around the individual’s neck to ‘constrict[] blood flow through the carotid artery, which supplies 22 oxygenated blood to the brain.’” Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 944 23 n.2 (9th Cir. 2017) (quoting Knapps, 647 F. Supp. 2d at 1143). “If successful, ‘[u]nconsciousness occurs, which causes the individual’s body to relax completely, but 24 breathing continues uninterrupted.’” Id. (quoting Knapps, 647 F. Supp. at 1143). “[A] 25 carotid restraint or hold can result in great bodily injury if the hold is in place long enough.” Ericson v. City of Phoenix, No. CV-14-01942-PHX-JAT, 2016 WL 6522805, at *13 (D. 26 Ariz. Nov. 3, 2016); see also Brown v. Grinder, No. 2:13-cv-01007-KJM-KJN, 2019 WL 27 280296, at *9 (E.D. Cal. Jan. 22, 2019) (“A carotid hold can constitute significant or even deadly force.”) (collecting cases). 28 1 “allowing” Botkin to grab her from the back, pull her hair, yank her neck back, and place 2 his thumb into her carotid artery. (SAC at 4.) Defendant argues that “the SAC does not 3 contain any facts that allow an inference the occurrence lasted more than a few seconds,” 4 and therefore “Burnett did not have a realistic opportunity to intervene.” (ECF No. 31 at 5 3.)5 The Court disagrees. In addition to alleging that Burnett’s restraint of Plaintiff 6 facilitated Botkin’s actions, Plaintiff’s SAC adequately alleges Burnett had an opportunity 7 to intercede and failed to do so. Accordingly, the Court recommends denying Burnett’s 8 motion to dismiss. 9 IV. CONCLUSION 10 For the reasons discussed above, IT IS HEREBY RECOMMENDED that the 11 District Court issue an Order: (1) accepting this Report and Recommendation; and 12 (2) DENYING Burnett’s motion to dismiss the SAC (ECF No. 28). 13 IT IS ORDERED that no later than November 19, 2019, any party to this action 14 may file written objections with the Court and serve a copy on all parties. The document 15 should be captioned “Objections to Report and Recommendation.” 16 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 17 the Court and served on all parties no later than December 20, 2019. The parties are 18 advised that failure to file objections within the specified time may waive the right to raise 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 25 26 5 The Court notes that Burnett relies on several additional “facts” in his motion 27 to dismiss and his reply that are not alleged in the SAC. (See ECF Nos. 28-1 at 6-7; 31 at 4.) However, the Court’s review is limited to the “contents of the complaint.” See Buckey, 28 || those objections on appeal of the Court’s order. See Martinez v. Ylst, 951 F.2d 1153, 1156 2 || (9th Cir. 1991). 3 IT IS SO ORDERED. A ||Dated: October 29, 2019 5 ‘ 6 UL { UA Lbendr 7 n. Jill L. Burkhardt ited States Magistrate Judge

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