Powell v. City of Bellingham

UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE JEROME LENORDA POWELL, II, Cause No. C22-0874RSL Plaintiff, ORDER ADOPTING IN v. PART THE REPORT AND 10 RECOMMENDATION CITY OF BELLINGHAM, et al., Defendants.

This matter comes before the Court on the Report and Recommendation of the Honorable David W. Christel, United States Magistrate Judge (Dkt. # 13) and plaintiff’s “Motion for Leave to Amend” (Dkt. # 14). Having reviewed the record in the above-captioned matter, the Court adopts the Report and Recommendation in all respects except that plaintiff will be given leave to amend his allegations regarding the excessive force claim against Officers Starkovich and Lyons. All other claims are hereby DISMISSED.

In order to state an excessive force claim upon which relief may be granted, the claim cannot rest on an assumption that plaintiff was innocent in light of Heck v. Humphrey, 512 U.S. 23 (1995), and plaintiff must allege facts giving rise to the plausible inference that the amount of force Officers Starkovich and Lyons used was excessive given the circumstances.

27 Plaintiff shall file a second amended complaint using the form provided. The second same case number, and it may not incorporate any part of the first or second complaints by reference. The second amended complaint will act as a complete substitute for the previous complaints, and not as a supplement. See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), overruled in part on other grounds by Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012). The Court will screen the second amended complaint to determine whether it contains factual allegations sufficient to raise a plausible inference that Officers Starkovich and/or Lyons used excessive force when arresting plaintiff in April 2020. Attachments will not be considered as a substitute for allegations in the second amended complaint itself: plaintiff is therefore directed to include all allegations and relevant facts in the body of the second amended complaint.

If plaintiff fails to file a second amended complaint or fails to adequately address the issues raised herein on or before October 24, 2022, the above-captioned matter will be dismissed.

The Clerk of Court is to send Plaintiff the appropriate forms for filing a 42 U.S.C. § 1983 civil rights complaint and for service and to send copies of this Order and Pro Se Instruction Sheet to plaintiff. The Clerk is further directed to note this matter for consideration on Friday, October 28, 2022.

Dated this 27th day of September, 2022.

26 Robert S. Lasnik United States District Judge