Opinion
2:22-cv-00203-ART-BNW
08-30-2022
Hoang Kim Tran, Plaintiff, v. City of Las Vegas, et al., Defendants.
SCREENING ORDER AND REPORT AND RECOMMENDATION
BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE
Hoang Kim Tran brings this civil-rights case under 42 U.S.C. § 1983 for events that occurred on March 28, 2021 after police officers ordered him to step out of his car. Plaintiff moves to proceed in forma pauperis. ECF No. 8. He submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability to prepay fees and costs or give security for them. ECF No. 18. His request to proceed in forma pauperis will, therefore, be granted.
The Court now screens Plaintiff's complaint (ECF No. 1-1) as required by 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. Analysis
A. Screening Standard for Pro Se Prisoner Claims
Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that 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. See 28 U.S.C. § 1915A(b)(1), (2). In addition to the screening requirements under § 1915A, the Prison Litigation Reform Act requires a federal court to dismiss a prisoner's claim if it “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2); accord Fed. R. Civ. Proc. 12(b)(6).
Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
In considering whether the complaint states a claim, all allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P'ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. But unless it is clear the complaint's deficiencies could not be cured through amendment, a pro se plaintiff should be given leave to amend the complaint with notice regarding the complaint's deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
B. Screening the Amended Complaint
Here, Plaintiff alleges that on March 28, 2021, he fell asleep in his car and was awakened by Las Vegas Metropolitan Police (LVMPD) officers ordering him to exit. He refused to come out of the car. After about an hour, he got out of the car holding a can of gasoline and threatened to pour it on himself and ignite it unless the police retreated. He started walking away and was eventually met by the police with their guns drawn. He dropped to his knees. Even though he was not resisting, a dog was unleashed. The dog bit his arm and torso, and ultimately, chewed off his right nipple. Plaintiff lost consciousness and awoke in the hospital. He asserts that he is now disfigured for life and brings several claims.
1. Mayhem Claim
Mayhem is a criminal charge, not a civil claim for which relief can be granted. See NRS 200.280. Given this, the Court recommends that Plaintiff's mayhem claim be dismissed with prejudice.
2. Eighth Amendment Claim
The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const. amend. VIII. The Eighth Amendment's prohibition on cruel and unusual punishment applies only to those who have been convicted. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Before conviction, when someone is being apprehended by law enforcement, claims related to excessive force implicate the Fourth Amendment's guarantee to be free from unreasonable seizures. U.S. Const. amend. IV; see Graham, 490 U.S. at 394.
Here, Plaintiff cannot state a claim for cruel and unusual punishment under the Eighth Amendment as a matter of law. This is so because he alleges that he was injured before being convicted. Accordingly, the Court will recommend that his Eighth Amendment claim be dismissed with prejudice.
3. Fourth Amendment Claim Against Doe Officers 1-5 in Their
Individual Capacities
Plaintiff brings a § 1983 claim against the City of Las Vegas and five police officers (in their official and individual capacities) for violations of his Fourth Amendment rights.
Section 1983 provides a cause of action for the violation of constitutional or other federal rights by persons acting under color of state law. Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones, 297 F.3d at 934. To state a claim under Section 1983, a plaintiff is required to show that (1) the defendant acted under color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal law. Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1144 (9th Cir. 2021) (citing Long, 442 F.3d at 1185; West v. Atkins, 487 U.S. 42, 48 (1988)).
A claim of excessive force during an arrest is analyzed under the Fourth Amendment's “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 395-97 (1989). Whether the use of force by a law enforcement officer was objectively reasonable must be assessed “in light of the facts and circumstances confronting [the officer], without regard to their underlying intent or motivation.” Id. at 397. “Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion of the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Id. at 396 (internal quotations omitted). In this analysis, the Court must consider the following factors: (1) the severity of the crime at issue; (2) whether the plaintiff posed an immediate threat to the safety of the officers or others; and (3) whether the plaintiff actively resisted arrest. Id.; see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 921 (9th Cir. 2001). While the Graham factors are guidelines, “there are no per se rules in the Fourth Amendment excessive force context,” and the Court may examine the totality of the circumstances. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir.2011) (en banc).
Here, Plaintiff alleges that an officer unleashed his dog while Plaintiff was kneeling with his hands up. He also alleges Officers 2-5 were standing by and watching. Liberally construing Plaintiff's allegations, there is no indication that a crime was being committed when Plaintiff was attacked. Additionally, Plaintiff alleges that he did not pose a threat to officers or anyone else at the time the dog was unleashed. Plaintiff also alleges that he was not resisting arrest when the dog was unleashed but rather kneeling. Accordingly, Plaintiff asserts a colorable excessive force claim against Doe Officers 1-5 in their individual capacities. See Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000) (holding that officers can be held liable for failing to intercede only if they had an opportunity to intercede).
However, this matter cannot proceed because Plaintiff's only potentially cognizable claim is asserted against these Doe defendants that cannot presently be served. Although the use of “Doe” to identify a defendant is not favored, flexibility is allowed in some cases where the identity of the parties is not known prior to filing a complaint but can subsequently be determined through discovery. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Such a course of action might be appropriate when a matter may proceed to discovery. This matter, however, cannot proceed to discovery because the complaint cannot be served on any party in the first instance. The Court cannot order service of a complaint on an unknown person. Any attempt to serve the complaint on the Doe Officers would be futile. Before Plaintiff may proceed on his claims against any Doe Officer, he must amend his complaint and identify these Doe defendants.
As discussed below, the Court finds that Plaintiff's claims against the City and the Doe Officers in their official capacity cannot proceed at this time.
One method Plaintiff may try to identify these Doe defendants prior to service of his complaint is through Federal Rule of Civil Procedure 45. Rule 45 provides the only way to get information from companies, people, or entities that are not named in a lawsuit. Allen v. Woodford, 543 F.Supp.2d 1138, 1145 (E.D. Cal. 2008). This is done by obtaining a Rule 45 subpoena duces tecum, which is a document that requires the person served with the Rule 45 subpoena to provide requested information in their possession.
If Plaintiff uses this method, he must file a motion for the Court to issue a Rule 45 subpoena duces tecum. Plaintiff must attach a copy of his proposed Rule 45 subpoena to his motion, and his motion must clearly identify the documents that would have the information he is seeking (e.g., the police report from his encounter with LVMPD on March 28, 2021) and must also explain why the documents and information would be available from the company, entity, or person that is the target of the subpoena (e.g., LVMPD). Plaintiff is directed to carefully review Rule 45 of the Federal Rules of Civil Procedure before filing such a motion.
4. The City of Las Vegas
The City of Las Vegas “may be sued under Section 1983; that, however, does not make the City liable to every plaintiff who sues. Because its ‘liability is limited to actions for which the municipality is actually responsible,' it cannot be properly sued for the actions of an entirely different government entity.'” Belcher-Bey v. City of Las Vegas, No. 2:12-CV-01829-JAD, 2014 WL 1153468, at *2 (D. Nev. Mar. 20, 2014). “Nevada state law expressly confines responsibility for LVMPD-employee actions to LVMPD itself; it does permit other independent political subdivisions of the state to be held responsible for LVMPD's conduct.” Id. at *3. To the extent Plaintiff alleges LVMPD is responsible for the incident in question, he must name LVMPD as a defendant (but has not done so yet). Here, “[b]ecause the Complaint offers no allegation from which the court could infer misconduct by a City employee,” Plaintiff “failed to state a cognizable claim for relief against the City.” Id. Accordingly, the Court will recommend dismissal of the City of Las Vegas without prejudice.
Should Plaintiff amend his complaint and name LVMPD as a defendant, he must also allege that a policy or custom of LVMPD was the moving force behind the violation of his rights.
5. Doe Officers 1-5 Sued in Their Official Capacity
Plaintiff states that he is suing LVMPD Officers in their official and individual capacities. Generally, state officers sued in their official capacity are not “persons” under § 1983 and therefore may not be sued under the statute. Hafer v. Milo, 502 U.S. 21, 27 (1991); Aguon v. Commonwealth Ports Auth., 316 F.3d 899, 901 (9th Cir. 2003). Official capacity claims filed against state officials are an alternative way of pleading a claim against the entity for which the defendant is an officer. See Hafer, 502 U.S. at 25. To bring a claim against an officer in his official capacity, a plaintiff must demonstrate that a policy or custom of the governmental entity for which the official is an agent was the moving force behind the violation. Id.
Here, Plaintiff did not allege that a LVMPD policy or custom was the moving force behind the violation of his rights. Accordingly, the Court will dismiss Plaintiff's claims against Doe Officers 1-5 in their official capacity without prejudice.
II. Conclusion
IT IS THEREFORE ORDERED that Plaintiff's application for leave to proceed in forma pauperis (ECF No. 8) is GRANTED. Plaintiff is permitted to maintain this action to conclusion without prepaying fees or costs or giving security for them.
IT IS FURTHER ORDERED that the Clerk of Court must detach and file Plaintiff's complaint (ECF No. 1-1).
IT IS FURTHER ORDERED that Plaintiff's Fourth Amendment Excessive Force Claim against Doe Officers 1-5 in their individual capacities is dismissed without prejudice and with leave to amend to name Doe Defendants 1-5. If Plaintiff chooses to file an amended complaint, he must do so by December 1, 2022.
IT IS FURTHER ORDERED that the Clerk of Court shall send Plaintiff form AO 88B for a subpoena to produce documents in a civil case.
IT IS RECOMMENDED that:
• the City of Las Vegas be dismissed without prejudice;
• Plaintiff's Fourth Amendment excessive force claim against Doe Officers 1-5 in their official capacities be dismissed without prejudice;
• Plaintiff's Eighth Amendment claim be dismissed with prejudice; and
• Plaintiff's mayhem claim be dismissed with prejudice;
NOTICE
This report and recommendation is submitted to the United States district judge assigned to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation may file a written objection supported by points and authorities within fourteen days of being served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely objection may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).