Dix Chesley Herbert Jr. v. Jeremiah Lupe, et al.

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 DIX CHESLEY HERBERT JR., Case No. 2:25-cv-2644-JDP (P) 12 Plaintiff, 13 v. ORDER 14 JEREMIAH LUPE, et al., 15 Defendants. — 16 — — 17 — 18 Plaintiff brings this action against Turlock Police Officer Jeremiah Lupe and Deputy 19 Public Defender Michael Scheid. After review of the complaint, I find that, for screening 20 purposes, plaintiff has stated a cognizable Fourteenth Amendment claim against Lupe.1 The 21 complaint fails, however, to state a cognizable claim against Scheid. Plaintiff shall indicate 22 whether he desires to proceed only with his claim against Lupe or delay serving any defendant 23 and file an amended complaint. Plaintiff also filed an application to proceed in forma pauperis, 24 which makes the required showing and is granted. 25 1 As an apparent pretrial detainee, plaintiff’s excessive force claim arises under the Fourteenth Amendment rather than the Eighth. See Crossley v. Tulare Cnty. Sheriff, 1:21-cv26 01758-GSA-PC, 2023 U.S. Dist. LEXIS 96472 , *10 (E.D. Cal. Jun. 1, 2023) (“A pretrial detainee 27 is not protected by the Eighth Amendment’s Cruel and Unusual Punishment Clause because he has not been convicted of a crime . . . . A pretrial detainee instead is protected from punishment 28 without due process under the Due Process Clause of the Fourteenth Amendment.”). 1 Screening and Pleading Requirements 2 A federal court must screen the complaint of any claimant seeking permission to proceed 3 in forma pauperis. See 28 U.S.C. § 1915 (e). The court must identify any cognizable claims and 4 dismiss any portion of the complaint that is frivolous or malicious, fails to state a claim upon 5 which relief may be granted, or seeks monetary relief from a defendant who is immune from such 6 relief. Id. 7 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 8 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 9 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 10 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 11 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 12 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 13 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024 , 14 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 15 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257 , 1264 16 n.2 (9th Cir. 2006) (en banc) (citations omitted). 17 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 18 U.S. 519 , 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 19 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 20 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 21 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 22 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251 , 23 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 24 Analysis 25 Plaintiff alleges two discrete incidents. First, he alleges that Lupe did not announce 26 himself as a police officer before he tackled plaintiff, causing injuries to plaintiff’s left leg, left 27 arm, knee, elbow, head, and ribs. ECF No. 1 at 3. Plaintiff also alleges that Lupe violated 28 plaintiff’s due process rights by filing an inaccurate incident report. Id. at 4. 1 In another incident, plaintiff alleges that Scheid, his criminal defense attorney, violated his 2 constitutional rights by failing to present exculpatory evidence during his criminal proceedings. 3 Id. at 5. Plaintiff alleges that Scheid did not file motions or challenge his prosecution and that he 4 did not interview plaintiff. Id. Plaintiff claims that he is concerned about facing excessive 5 punishment or sentencing as a result. Id. 6 Plaintiff alleges a cognizable excessive force claim against Lupe. To allege a Fourteenth 7 Amendment violation for excessive force, a pretrial detainee must show that the force the 8 defendant purposely or knowingly used against them was objectively unreasonable. Kingsley v. 9 Hendrickson, 576 U.S. 389, 396-97 (2015). In making this determination, courts consider the 10 need for the use of force and the amount of force used, the extent of plaintiff’s injury, any effort 11 by the officer to temper or limit the amount of force, the severity of the security problem, the 12 threat reasonably perceived by the officer, and whether the plaintiff was resisting. Id. 13 Here, plaintiff alleges that Lupe tackled him unnecessarily and caused him serious 14 injuries. On these allegations, there is no indication that Lupe perceived a threat, that there was a 15 severe security problem, or that force was needed. Instead, the allegations indicate that plaintiff 16 continues to suffer pain months later and that he did not resist when Lupe tackled him as he was 17 waiting for Lupe with his hands up at the time of the incident. ECF No. 1 at 3. As such, plaintiff 18 has sufficiently alleged that Lupe used objectively unreasonable force against him. 19 Plaintiff’s other claims fail, however. A claim for a violation of plaintiff’s due process 20 rights by including inaccurate information in an incident report, without more, is insufficient to 21 state a claim under the Fourteenth Amendment. See Survine v. Cottle, No. CV-F-12-1453-LJO22 JLT, 2013 WL 1313844 , *5 (E.D. Cal. Apr. 1, 2013) (holding that the mere filing of a false or 23 inaccurate police report is insufficient to state a claim under 42 U.S.C. § 1983 and that a plaintiff 24 is required to show that the report thwarted the plaintiff’s ability to pursue civil claims). 25 Therefore, plaintiff’s claim against Lupe for filing an inaccurate incident report is dismissed with 26 leave to amend. 27 Plaintiff’s claim for ineffective assistance of counsel against Schied should also be 28 dismissed because it must be brought in a habeas petition. And to do that, plaintiff must first 1 | exhaust state remedies. Carrillo-Carrillo v. Coursey, 823 F.3d 1217, 1220 (9th Cir. 2016). 2 | Because there is no indication that plaintiff has done so, and the instant action is not the proper 3 | vehicle for bringing a habeas claim, this claim is dismissed without leave to amend. 4 Finally, plaintiffs claims against Lupe and Scheid relate to separate incidents and cannot 5 || proceed together. Multiple, unrelated claims against more than one defendant belong in separate 6 | suits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 7 Plaintiff can either file a notice to proceed with his excessive force claim against Lupe or 8 || he can delay serving any defendant and file an amended complaint that addresses the above 9 | concerns. Should plaintiff choose to amend his complaint, he is advised that the amended 10 | complaint will supersede the current complaint. See Lacey v. Maricopa Cnty., 693 F.3d 896 , 907 11 | n.1 (Oth Cir. 2012) (en banc). The amended complaint should be titled “First Amended 12 || Complaint” and refer to the appropriate case number. 13 Accordingly, it is ORDERED that: 14 1. Plaintiffs application to proceed in forma pauperis, ECF No. 2, is GRANTED. 15 2. Within thirty days, plaintiff may confirm his intent to proceed only with the excessive 16 || force claim against Lupe or, within that same time, file another amended complaint with the 17 | understanding that doing so will delay service of any defendant. 18 3. Failure to timely comply with this order may result in the imposition of sanctions, 19 | including a recommendation that this action be dismissed with prejudice pursuant to Federal Rule 20 | of Civil Procedure 41(b). 21 4. The Clerk of Court shall send plaintiff a complaint form with this order. — 22 — 73 IT IS SO ORDERED. 24 ( q Sty — Dated: _ December 8, 2025 q——— 25 JEREMY D,. PETERSON 26 UNITED STATES MAGISTRATE JUDGE — 27 — — 28 —