Daniels v. Aponte

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA JEREMY DANIELS, Case No. 21-cv-03794-RMI 8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND 10 STEVEN APONTE, et al., Re: Dkt. Nos. 3, 5 Defendants.

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 Standard of Review 17 Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 19 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1), (2). 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 claim showing that the pleader is entitled to relief.” While specific facts are not necessary, the statement needs to give the defendant fair notice of the nature of the claim and the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). In order to state a claim, although a grounds of entitlement to relief requires more than mere labels and conclusions, and a formulaic recitation of the elements of a cause of action is insufficient; instead, the factual allegations must be enough to raise the entitlement to relief “above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, a complaint must proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The Supreme Court has recently explained this standard as such: “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations . . . [and] [w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

14 Legal Claims 15 Plaintiff alleges that he was improperly arrested and subject to excessive force. An allegation of the use of excessive force by a law enforcement officer in effectuating an arrest states a valid claim under 42 U.S.C. § 1983. See Rutherford v. City of Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986), overruled on other grounds by Graham v. Connor, 490 U.S. 386 (1989); see also Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 641-42 (9th Cir. 2018) (pro se allegations that police officers “beat the crap out of” plaintiff and caused him severe injury enough to support a legally cognizable claim under § 1983). Excessive force claims which arise in the context of an arrest or investigatory stop of a free citizen are analyzed under the Fourth Amendment reasonableness standard. See Graham, 490 U.S. at 394-95.

24 A claim of unlawful arrest is cognizable under § 1983 for violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures if the complaint alleges that the arrest was without probable cause or other justification. See Pierson v. Ray, 386 U.S. 547, 555- 558 (1967); Yousefian v. City of Glendale, 779 F.3d 1010, 1014 n.1. (9th Cir. 2015) (absence of detention or imprisonment is cognizable under § 1983 for violation of the Fourteenth Amendment’s guarantee of due process if the arrest was without probable cause or other justification and the defendant knew or should have known that plaintiff was entitled to release.

4 See Baker v. McCollan, 443 U.S. 137, 142-145 (1979); Lee v. Cty. of Los Angeles, 250 F.3d 668, 684-85 (9th Cir. 2001) (plaintiff stated due process claim where police allegedly arrested plaintiff’s son without probable cause, detained him without verifying that he was the person for whom police had an arrest warrant, despite his obvious mental incapacity, and detained him for one day before an extradition hearing, which led to his incarceration in another state for two years); cf. Gant v. Cty. of Los Angeles, 772 F.3d 608, 619, 621-22 (9th Cir. 2014) (because plaintiff did not inform defendants of his mistaken identity and because he received a prompt hearing, his due process claim based on unlawful post-arrest detention failed).

12 In order to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid under § 1983, a plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.

17 Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). Consequently, such a claim for damages, that is, one bearing such a relationship to a conviction or sentence that has not been so invalidated, is not cognizable under § 1983. Id. at 487.

20 In a different context, in Wallace v. Kato, 549 U.S. 384, 393 (2007), the Court held that the “Heck rule for deferred accrual [of the statute of limitations] is called into play only when there exists ‘a conviction or sentence that has not been . . . invalidated,’ that is to say, an ‘outstanding criminal judgment.’” Id. at 391-93 (quoting Heck, 512 U.S. at 486-87). The Heck rule delays accrual of the limitations period only if there is an existing conviction on the date the statute of limitations begins to run, which in the case of wrongful arrest or wrongful imprisonment claims is when the plaintiff’s confinement is no longer without legal process, but rather becomes a confinement pursuant to legal process, for example, when he or she is bound over by a judge or limitations began running on a false arrest or false imprisonment claim, the discussion quoted suggests that Heck does not apply if there is no extant conviction – for instance, if a plaintiff has only been arrested or charged.

4 Accordingly, if a plaintiff files a § 1983 false arrest claim before he or she is convicted, or files any other claim related to rulings that likely will be made in a pending or anticipated criminal trial, it is within the power of the district court, and accords with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended. Id. at 393-94. If the plaintiff is thereafter convicted, and if the stayed civil suit would impugn that conviction, Heck requires dismissal; otherwise, the case may proceed. Id. at 394.

10 Plaintiff states that he was riding his bicycle down the street when police racially profiled him and pulled alongside of him in a patrol car and told him to stop. Plaintiff did not stop, because he did nothing wrong, and kept riding. Plaintiff states that the Defendant police officer in the patrol car then struck his bicycle with the patrol car causing an accident and injuries. He was then handcuffed, and another Defendant officer used excessive force against him.

15 Plaintiff is currently in custody. It is not clear if he is in custody related to this arrest or the status of the arrest. Plaintiff cannot obtain money damages unless the charges were dropped, or the conviction expunged. If the prosecution is ongoing, this case must be stayed until the criminal case concludes. The complaint is dismissed with leave to amend to provide more information about the status of the criminal case and the reason plaintiff is currently in custody.

20 Plaintiff has also filed a motion to appoint counsel. There is no constitutional right to counsel in a civil case, Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981), and although district courts may “request” that counsel represent a litigant who is proceeding in forma pauperis, as plaintiff is here, see 28 U.S.C. § 1915(e)(1), that does not give the courts the power to make “coercive appointments of counsel.” Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989).

26 The Ninth Circuit has held that a district court may ask counsel to represent an indigent litigant only in “exceptional circumstances,” the determination of which requires an evaluation of claims pro se in light of the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 2 1015, 1017 (9th Cir. 1991). Plaintiff has presented his claims adequately, and the issues are not |} complex.

4 CONCLUSION 5 1. The motion to appoint counsel (dkt. 3) is DENIED without prejudice. The motion for || copies (dkt. 5) is DENIED. Copies are not necessary at this stage of the case.

7 2. The complaint is DISMISSED with leave to amend in accordance with the standards set forth above. The amended complaint must be filed within twenty-eight (28) days of the date this order is filed and must include the caption and civil case number used in this order and the |) words AMENDED COMPLAINT on the first page. Because an amended complaint completely 11 replaces the original complaint, Plaintiff must include in it all the claims he wishes to present. See 12 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material 13 from the original Complaint by reference. Failure to amend within the designated time will result || in the dismissal of this case.

3 15 3. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the court A 16 || informed of any change of address by filing a separate paper with the clerk headed “Notice of 17 Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to do so 18 may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 19 Procedure 41(b).

20 IT IS SO ORDERED.

21 Dated: July 13, 2021 22 Mt Z RQ@BERT M. ILLMAN 24 United States Magistrate Judge