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Wheeler v. Sparks Police Department

United States District Court, D. Nevada

October 25, 2017

CHRISTOPHER LEE WHEELER, Plaintiff,
v.
SPARKS POLICE DEPARTMENT, et al., Defendants.

          REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

         This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4. Before the court is Christopher Lee Wheeler's (“plaintiff”) application to proceed in forma pauperis (ECF No. 5) and pro se complaint (ECF No. 1). Consistent with the following, the court recommends that the complaint proceed as to certain defendants and claims, and be dismissed as to others.

         I. IN FORMA PAUPERIS APPLICATION

         Plaintiff did not attach an application to proceed in forma pauperis to his complaint. (See ECF no. 1.) Plaintiff then filed a motion for leave to proceed in forma pauperis, which appeared to consist entirely of an incomplete in forma pauperis application. (See ECF No. 3.) The court denied the motion without prejudice, and ordered plaintiff to submit a completed in forma pauperis application and attach an inmate account statement and properly executed financial certificate. (ECF No. 4.) Plaintiff submitted a completed in forma pauperis application with the required attachments. (ECF No. 5.)

         As set forth in 28 U.S.C. § 1915(a), the court may authorize a plaintiff to proceed in forma pauperis if he or she is unable to pay the prescribed court fees. The plaintiff need not “be absolutely destitute to enjoy the benefits of the statute.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Rather, “[a]n affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). Based on plaintiff's application, the court finds that plaintiff is unable to pay the filing fee in this matter. (See ECF No. 5.) Accordingly, the court recommends that plaintiff's application to proceed in forma pauperis be granted.

         II. LEGAL STANDARD

         Inmate civil rights complaints are governed by 28 U.S.C. § 1915A. Section 1915A provides, in relevant part, that “the court shall dismiss the case at any time if the court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). A complaint is frivolous when “it lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g., delusional scenarios). Id. at 327-28; see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Dismissal for failure to state a claim under § 1915A incorporates the same standard applied in the context of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012), which requires dismissal where the complaint fails to “state a claim for relief that is plausible on its face, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         The complaint is construed in a light most favorable to the plaintiff. Chubb Custom Ins. Co. v. Space Systems/Loral Inc., 710 F.3d 946, 956 (9th Cir. 2013). The court must accept as true all well-pled factual allegations, set aside legal conclusions, and verify that the factual allegations state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The complaint need not contain detailed factual allegations, but must offer more than “a formulaic recitation of the elements of a cause of action” and “raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555. Particular care is taken in reviewing the pleadings of a pro se party, for a more forgiving standard applies to litigants not represented by counsel. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Still, a liberal construction may not be used to supply an essential element of the claim not initially pled. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). If dismissal is appropriate, a pro se plaintiff should be given leave to amend the complaint and notice of its deficiencies, unless it is clear that those deficiencies cannot be cured. Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 1995).

         III. DISCUSSION

         Plaintiff is an inmate in the custody of the Stewart Conservation Camp. (ECF No. 5.) Proceeding pro se and pursuant to 42 U.S.C. § 1983, plaintiff brings civil rights claims against the Sparks Police Department (“SPD”), three SPD officers, the City of Sparks, Washoe County, and the State of Nevada for actions taken in the course of his arrest for violating his probation. (ECF No. 1-1 at 3-5.)

         As set forth in Count I, Officer Fye (“Fye”) and Officer Butler (“Butler”) entered plaintiff's home in response to an “alleged domestic disturbance ….” (Id. at 4.) Plaintiff was compliant, answered Fye and Butler's questions regarding the domestic disturbance, and finally attempted to use his restroom “before going outside to be contained.” (Id.) Fye and Butler pursued plaintiff, and in the process plaintiff's fiancée had to “grab [plaintiff's] son Zion from the officers falling and crushing him ….” (Id.) Fye and Butler proceeded to kick the restroom door off the hinges and tase plaintiff repeatedly. (Id.) Plaintiff was then “handcuffed from behind, and while completely drained [he] was tazed [sic] again and again.” (Id.)

         Lieutenant Krall (“Krall”) then arrived at plaintiff's residence. Plaintiff states that Krall was “vulgar, belligerent, out of control and high strung in front of [his] family.” At some point, Krall smashed plaintiff's head repeatedly into a pillar, which resulted in a gash on plaintiff's head. While plaintiff was being escorted away by Fye and Butler, Krall tased plaintiff “again and again” despite plaintiff “not posing as a threat ….” (Id.)

         In Count II, plaintiff alleges that he told Fye, Butler, and Krall that he needed immediate medical attention for the injuries he sustained during the arrest. (ECF No. 1-1 at 5.) The officers “denied any and all medical attention I should have received by law” and instead told plaintiff, “Shut the fuck up nigger!” (Id.) Plaintiff speculates that he suffered “multiple contusions, lacerations, and abrasions … during the assault.” (Id.) He also believes he suffered a concussion because he was “in and out of consciousness at that time.” (Id.) Plaintiff contends that Fye, Butler, and Krall purposefully refused to have plaintiff seen by a doctor because “they wanted no evidence in writing that could be used against them” in court. (Id.)

         In Count III, plaintiff claims that both he and his son suffer from “serious mental health issues” as a result of the brutal and unnecessary nature of his arrest. (Id. at 6.) Specifically, plaintiff's five-year old son is “terrified of what the police are capable of doing after witnessing first hand [sic] the atrosities [sic] done onto [sic] his father, ” such as seeing Krall “brutally” bludgeoning plaintiff's head against a pillar. (Id.) As for plaintiff, he claims to have “constant nightmares” and suffer from “mental anguish and pains” that are unbearable. (Id.) Plaintiff does not provide any further detail regarding his, or his son's, mental health.

         Plaintiff contends that the events described above violated his Sixth, Eighth, and Fourteenth Amendment rights. (Id. at 4-6.) He requests seven million dollars in damages, and seeks to have SPD “leave and stop harassing [his] family ….” (Id. at 9.)

         Despite being named as defendants, the City of Sparks, Washoe County, and the State of Nevada are not mentioned in the body of the complaint. (See Id. at 4-6.) SPD is ...


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