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Repinec v. Fincher

United States District Court, D. Nevada

July 31, 2014

JAMES ALLEN REPINEC, Plaintiff,
v.
TODD FINCHER, et al., Defendants.

ORDER SCREENING AMENDED COMPLAINT (#4)

GEORGE FOLEY, Jr., Magistrate Judge.

This matter comes before the Court on the screening of Plaintiff's Amended Complaint (#4) pursuant to 28 U.S.C. § 1915, filed on July 24, 2014. Plaintiff's request to proceed in forma pauperis was previously granted on July 8, 2014. See Order (#2).

BACKGROUND

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, for violations of his Fourth Amendment right to be free from unreasonable search and seizure. Plaintiff alleges that on September 10, 2012, the Defendants, acting under color of law, arrested him and transported him to the White Pine County Jail for suspicion of driving under the influence of a controlled substance. Plaintiff alleges that Defendant Fincher requested he consent to a blood withdrawal and upon refusal, Defendant Cessford kept him in a choke hold while Defendants Robinson and Brewer struck his body. Once placed in the restraint chair, Plaintiff alleges that Defendant Fincher used his baton as a pry bar to force Plaintiff's arm into position so that Defendant Stratton could forcefully take his blood against his will. As a result of the excessive force, Plaintiff alleges that he received several bruises, muscle pains, neck pain and an "extremely painful infection" that resulted in a scar at the site penetrated by Nurse Stratton's needle. Plaintiff seeks monetary and punitive damages in the amount of $50, 350.00 for pain and suffering, mental distress, and the court filing fee.

DISCUSSION

I. Screening the Complaint

Upon granting a request to proceed in forma pauperis, a court must additionally screen a complaint pursuant to 28 U.S.C. § 1915(e). Specifically, federal courts are given the authority to dismiss a case if the action is legally "frivolous or malicious, " fails to state a claim upon which relief may be granted, or seeks monetary relief from a Defendant/Third Party Plaintiff who is immune from such relief. 28 U.S.C. § 1915(e)(2). A complaint, or portion thereof, should be dismissed for failure to state a claim upon which relief may be granted "if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief." Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

2. Plaintiff's claims under 42 U.S.C. § 1983

42 U.S.C. § 1983 provides a cause of action against persons acting under color of state law who have violated rights guaranteed by the Constitution. See Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). Traditionally, the requirements for relief under § 1983 have been articulated as: (1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a person' (4) acting under color of state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).

State officials sued in their official capacity for damages are not persons for purposes of § 1983. See Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n.24 (1997). Official-suits filed against state officials are merely an alternative way of pleading an action against the entity of which the defendant is an officer. See Hafer v. Melo, 502 U.S. 21, 25 (1991). Therefore, in an official-capacity suit, the plaintiff must demonstrate that a policy or custom of the governmental entity of which the official is an agent was the moving force behind the violation. Id.

State officials sued in their personal capacity are persons for purposes of § 1983. See Hafer v. Melo, 502 U.S. 21, 31 (1991). Personal-capacity suits seek to impose personal liability upon a government official for actions the official takes under color of state law. See Kentucky v. Graham, 473 U.S. 159, 165 (1985). Liability in a personal-capacity suit can be demonstrated by showing that the official caused the alleged constitutional injury. See Id. at 166. The official in a personalcapacity suit may, depending upon the facts, be able to establish immunity from claims for damages. See Id. at 166-67. Police officers are not entitled to absolute immunity. See Imbler v. Pachtman, 424 U.S. 409, 418-19 (1976).

A defendant has acted under color of state law where he or she has exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. See West v. Atkins, 487 U.S. 42, 49 (1988). Even if the deprivation represents an abuse of authority or lies outside the authority of the official, if the official is acting within the scope of his or her employment, the person is still acting under color of state law. See Anderson v. Warner, 451 F.3d 1063, 1068-69 (9th Cir. 2006).

Here, Plaintiff brings this action against Defendants Todd Fincher, a Sergeant with the White Pine's Sheriff's Department, James Robinson, a Deputy with the White Pine's Sheriff's Department, Chris Brewer, a DPS Sergeant with the Nevada Highway Patrol, John Cessford, a DPS Detective with the Nevada Highway Patrol, and Joanne Stratton, a Registered Nurse with White Pine County, in their official and personal capacities. He alleges that the defendants, all of whom are state or local government employees, violated his Fourth Amendment right to be free from unreasonable search and seizure by exercising the power they possessed by virtue of the authority granted them by state or local laws to remove his blood to use as evidence, without his consent, by using excessive force. Plaintiff therefore plead sufficient facts to state a claim for relief in a personal-capacity suit pursuant to 42 U.S.C. § 1983.

Plaintiff will not be permitted to proceed with his official-capacity suit at this time because officials sued in their official capacity for damages are not persons for purposes of § 1983 and Plaintiff failed to plead that a policy or custom of the governmental entities of which the officials were agents was the moving force behind the violation. Plaintiff will be given leave to amend his Complaint if he can ...


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