Powell v. Rite Aid Pharmacy

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA — 6 — JEROME LENORDA POWELL II, Case No. C22-1324 MJP-TLF 7 Plaintiff, v. ORDER TO SHOW CAUSE — 8 — RITE AID PHARMACY, — 9 — Defendants. — 10 — — 11 — This matter comes before the Court on pro se Plaintiff Jerome Lenorda Powell’s — 12 — application to proceed in forma pauperis (IFP). Dkt. 4. Having reviewed and screened — 13 — plaintiff’s proposed complaint under 28 U.S.C. §1915A, the Court finds plaintiff has — 14 — failed to state a claim under Section 1983 upon which relief can be granted, but — 15 — provides plaintiff leave to file an amended pleading by November 11, 2022, to cure the — 16 — deficiencies identified herein. — 17 — DISCUSSION — 18 — The Court must dismiss the complaint of a prisoner proceeding in forma pauperis — 19 — “at any time if the [C]ourt determines” that the action: (a) “is frivolous or malicious”; (b) — 20 — “fails to state a claim on which relief may be granted”’ or (c) “seeks monetary relief — 21 — against a defendant who is immune from such relief.” 28 U.S.C. § 1915 (e)(2); 28 U.S.C. — 22 — § 1915A(a), (b). A complaint is frivolous when it has no arguable basis in law or fact. — 23 — Franklin v. Murphy, 745 F.3d 1221, 1228 (9th Cir. 1984). — 24 — 1 Before the Court may dismiss the complaint as frivolous or for failure to state a 2 claim, it “must provide the [prisoner] with notice of the deficiencies of his or her 3 complaint and an opportunity to amend the complaint prior to dismissal.” McGucken v. 4 Smith, 974 F.2d 1050, 1055 (9th Cir. 1992); see also Sparling v. Hoffman Constr., Co., 5 Inc., 864 F.2d 635, 638 (9th Cir. 1988); Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir. 6 1987). Leave to amend need not be granted “where the amendment would be futile or 7 where the amended complaint would be subject to dismissal.” Saul v. United States, — 8 — 928 F.2d 829, 843 (9th Cir. 1991). 9 A. Plaintiff’s Complaint 10 Here, plaintiff alleges that defendants – Rite Aid Pharmacy, Jordan Westergreen 11 (Youth Prevention Officer), Alden Nagel (Rite Aid Pharmacy Employee) and Police 12 Officer Michael Shannon, violated his rights under 42 U.S.C. §§ 1983 , 1985 and 1986, 13 and intentionally inflicted emotional distress on plaintiff. Dkt. 1, at 1. Plaintiff’s complaint 14 sufficiently states claims under Sections 1985 and1986. Id. at 3 . Plaintiff also sufficiently 15 asserts the state law claim of intentional infliction of emotional distress. Id. 16 Plaintiff alleges that defendants conspired against plaintiff to accuse him of 17 threatening to harm Mr. Westergreen. Id. at 5 . Plaintiff alleges that defendants 18 fabricated this lie and the “fight” that occurred between plaintiff and Mr. Westergreen. Id. 19 As a result of this alleged lie, plaintiff states that he was facing 10-13 years in prison 20 and had a mental breakdown. Id. at 7 . Plaintiff seeks damages from defendants as well 21 as a no-contact order between plaintiff and Officer Shannon. Plaintiff also seeks to have 22 Officer Shannon fired from the police department. Id. at 10 . 23 B. 42 U.S.C. § 1983 — 24 — 1 To state a claim for relief under 42 U.S.C. § 1983 , a plaintiff must show: (1) he 2 suffered a violation of rights protected by the Constitution or created by federal statute, 3 and (2) the violation was proximately caused by a person acting under color of state 4 law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The first step in a § 5 1983 claim is therefore to identify the specific constitutional right allegedly infringed. 6 Albright v. Oliver, 510 U.S. 266, 271 (1994). Here, plaintiff alleges that defendants 7 violated his rights when they used excessive force to arrest him. 8 Under the Fourteenth Amendment, for allegations of excessive force, “the Fourth 9 Amendment sets the applicable constitutional limitations on the treatment of an arrestee 10 detained without a warrant up until the time such arrestee is released or found to be 11 legally in custody based upon probable cause for arrest.” Pierce v. Multnomah County, — 12 — 76 F.3d 1032, 1043 (9th Cir. 1996); see Graham v. Connor, 490 U.S. 386, 395 (1989) 13 (“all claims that law enforcement officers have used excessive force ... in the course of 14 an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed 15 under the Fourth Amendment and its ‘reasonableness' standard....”). 16 A Fourth Amendment claim of excessive force is analyzed under the 17 reasonableness standard set forth by the Supreme Court. See Graham, 490 U.S. at 18 395. The analysis is objective; whether the officers’ actions are objectively reasonable in 19 light of the facts and circumstances confronting them. Id. at 397 . In determining the 20 reasonableness of a seizure effected by non-deadly force, “the nature and quality of the 21 intrusion on the individual’s Fourth Amendment interests” should be balanced against 22 “the countervailing governing interests at stake.” Id. at 396 (internal quotations omitted). 23 The reasonableness of a defendant’s actions depends on factors such as the severity of — 24 — 1 the crime at issue, the threat the suspect posed, and whether the suspect is actively 2 resisting arrest. Id. 3 Plaintiff does not provide any facts to show how each defendant’s alleged acts or 4 omissions caused a violation of his right to be free from unreasonable force under the 5 Fourth and Fourteenth Amendments. He explains why he was arrested, i.e., the alleged 6 fight at the Rite Aid, but not how. If plaintiff intends to proceed with his excessive force 7 claim, he must allege additional facts regarding specifics of his encounter with the 8 defendants – i.e. facts regarding the specifics of how each defendant’s acts or 9 omissions concerning his arrest violated his constitutional rights under the 10 reasonableness standard described above. 11 CONCLUSION 12 Due to the deficiencies described above, the Court will not serve the complaint at 13 this time. Accordingly, plaintiff is ordered, on or before November 11, 2022, to show 14 cause as to why this Court should not recommend this case be dismissed. If plaintiff 15 fails to timely respond to this Order to Show Cause, the undersigned will recommend 16 that plaintiff’s IFP application be denied. — 17 — 18 Dated this 25th day of October, 2022. — 19 — — 20 — A — 21 — Theresa L. Fricke 22 United States Magistrate Judge — 23 — — 24 —