Byrd v. Phx. Police Dep't

• Decision Date: 16 March 2018
• Docket Number: No. 16-16152,16-16152
• Parties: Charles Edward BYRD, Plaintiff–Appellant, v. PHOENIX POLICE DEPARTMENT, named as City of Phoenix Police Department ; Robert Mckinney, Phoenix Police Department Officer #8046; Timothy Thiebaut, Phoenix Police Department Officer #8008, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

885 F.3d 639

Charles Edward BYRD, Plaintiff–Appellant,

v.PHOENIX POLICE DEPARTMENT, named as City of Phoenix Police Department ; Robert Mckinney, Phoenix Police Department Officer #8046; Timothy Thiebaut, Phoenix Police Department Officer #8008, Defendants–Appellees.

No. 16-16152

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 14, 2017, Pasadena, California

Filed March 16, 2018

Jeremy B. Rosen (argued) and Mark A. Kressel. Horvitz & Levy LLP, Burbank, California; Kyser Blakely (argued) and Emily Sauer (argued), Certified Law Students, Pepperdine University School of Law Ninth Circuit Appellate Advocacy Clinic, Malibu, California; for Plaintiff–Appellant.

Clarence E. Matherson Jr. (argued), Assistant City Attorney; Brad Holm, City Attorney; Office of the City Attorney, Phoenix, Arizona; for Defendants–Appellees.

Before: Jacqueline H. Nguyen and Andrew D. Hurwitz, Circuit Judges, and Richard K. Eaton,^* Judge.

Concurrence by Judge Eaton

Charles Edward Byrd, an Arizona state prison inmate, appeals the district court's sua sponte dismissal, pursuant to 28 U.S.C. § 1915A, of his civil rights complaint. We have jurisdiction under 28 U.S.C. § 1291. We review the dismissal de novo, Resnick v. Hayes , 213 F.3d 443, 447 (9th Cir. 2000), and reverse and remand to the district court for further proceedings.

I.BACKGROUND

On December 31, 2015, Byrd filed a pro se complaint seeking damages under 42 U.S.C. § 1983 for alleged violations of his constitutional rights by Phoenix Police Officers Robert McKinney and Timothy Thiebaut during a traffic stop.¹ Byrd alleged that Officers McKinney and Thiebaut stopped him for riding a bicycle without a headlight, but did not issue him a citation for that violation.² Rather, according to Byrd, the officers first searched him and his belongings, and then proceeded to "beat the crap out of" him, causing serious injuries, including the loss of seventy percent of his vision. Byrd later pleaded guilty to conspiracy to commit possession of a dangerous drug, and was sentenced to ten years imprisonment.³

The district court conducted a pre-answer screening of Byrd's complaint pursuant to 28 U.S.C. § 1915A(a). The court first found that Byrd had improperly named the Phoenix Police Department as a defendant, instead of the City of Phoenix. In addition, the court found that, even if Byrd had sued the city, his claim could not survive dismissal because he alleged a respondeat superior theory of liability but did not allege that the officers were acting pursuant to an official policy or custom of the municipality. The court therefore dismissed the suit against the department.

Next, the court examined the six counts of the complaint. The excessive force claim in Count Six was dismissed because the district court found its allegations too vague and conclusory to state a claim, and Count Three was dismissed as duplicative of Count Six. The court held that Heck v. Humphrey , 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) barred Counts One, Two, Four, and Five of the complaint, which asserted violations of Byrd's Fourth Amendment right to be free from unreasonable search and seizure, and his due process rights under the Fifth and Fourteenth Amendments. The district court dismissed the complaint, with leave to amend, instructing Byrd to "cure the deficiencies outlined" and re-submit the complaint on a court-approved form.

On April 18, 2016, Byrd filed his First Amended Complaint, which again named the City of Phoenix Police Department and the two officers as defendants and repeated the six counts alleged in the original complaint. The district court found that the First Amended Complaint suffered from the same defects that the court had previously identified and dismissed it without leave to amend. The district court denied leave to amend because Byrd was apparently "unable or unwilling to [craft a viable complaint] despite specific instructions from the Court," and further opportunities to amend would be "futile."

II.ANALYSIS

For certain prisoner civil rights litigation, 28 U.S.C. § 1915A(a) requires pre-answer screening of the complaint so that "the targets of frivolous or malicious suits need not bear the expense of responding." Nordstrom v. Ryan , 762 F.3d 903, 908 n.1 (9th Cir. 2014) (quotation marks and citation omitted). In this review, the district court "shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint—(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b). If the district court determines that any of these grounds is satisfied, it must dismiss the case, and enter a "strike" against the plaintiff prisoner. See 28 U.S.C. § 1915(e)(2), (g) ; Washington v. Los Angeles County Sheriff's Dep't , 833 F.3d 1048, 1051 (9th Cir. 2016). Three strikes bar a prisoner from bringing a civil action or appeal in forma pauperis , unless he is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).

"To survive § 1915A review, a complaint must ‘contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ " Nordstrom , 762 F.3d at 908 (quoting Wilhelm v. Rotman , 680 F.3d 1113, 1121 (9th Cir. 2012) ). Moreover, "we have an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt." Bretz v. Kelman , 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc) (citation omitted); accord Byrd v. Maricopa Cty. Bd. of Supervisors , 845 F.3d 919, 922 (9th Cir. 2017).

A.Byrd's Excessive Force Claim

The excessive force claim in Count Six of Byrd's handwritten complaint alleged that Officers McKinney and Thiebaut

used excessive force when they beat the crap out of Charles Byrd when they pulled [him] over for no light on his bicycle, even though [he] was on private property, was not engaged in criminal activity, was not on probation or parole, did not receive any type of traffic or [equipment] violation, and had no warrants for [his] arrest.

Byrd alleged that his injuries included "severe body pain from the beating, emotional distress from thinking these two officers were going to beat [him] to death, [and] loss of 70% of [his] vision."

The district court found that Byrd's allegations were "too vague and conclusory." Specifically, the court stated:

Although Plaintiff contends that the officers "beat the crap out of [him]," he does not identify what force the officers used, or why they used it. Plaintiff claims that he was stopped for not having a light on his bicycle, but it appears he was arrested for other crimes. Moreover, Plaintiff does not assert that he was not resisting arrest, did not possess a weapon, and did not pose a threat to the police or others. Thus, Plaintiff has failed to state a claim regarding the officers' use of force.

(Alteration in original). The court took judicial notice "that two of the dismissed counts in [the underlying criminal case against Byrd] were for misconduct involving weapons and resisting arrest."

We analyze claims of excessive force under the reasonableness standard of the Fourth Amendment. See Graham v. Connor , 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "[T]he question is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id . at 397, 109 S.Ct. 1865 (internal quotation marks and citation omitted). This analysis "requires balancing the ‘nature and quality of the intrusion’ on a person's liberty with the ‘countervailing governmental interests at stake’ to determine whether the use of force was objectively reasonable under the circumstances." Santos v. Gates , 287 F.3d 846, 853 (9th Cir. 2002) (quoting Graham , 490 U.S. at 396, 109 S.Ct. 1865 ). Among the factors considered are the need for, and the severity of, the force applied. See Tekle v. United States , 511 F.3d 839, 844 (9th Cir. 2007).

We disagree with the district court that the allegation that the officers "beat the crap out of" Byrd was "too vague and conclusory" to support a legally cognizable claim. Byrd's use of a colloquial, shorthand phrase makes plain that Byrd is alleging that the officers' use of force was unreasonably excessive; this conclusion is reinforced by his allegations about the resulting injuries. See, e.g. , Smithart v. Towery , 79 F.3d 951, 952 (9th Cir. 1996) (finding sufficient allegations that the defendant officers beat the plaintiff "beyond recognition with unnecessary force" until he "had a broken arm, two broken legs

, numerous contusions, and internal injuries.") (emphasis added). Byrd's allegations that the officers beat him so severely that he lost seventy percent of his vision sufficed to identify the severity of the force the officers used, and to plausibly allege that it was excessive—particularly given our obligation to construe pro se filings liberally. See

Blaisdell v. Frappiea , 729 F.3d 1237, 1241 (9th Cir. 2013) ("This rule relieves pro se litigants from the strict application of procedural rules and demands that courts not hold missing or inaccurate legal terminology or muddled draftsmanship against them.").

B.Byrd's Other Claims

The district court dismissed Counts One, Two, Four, and Five of Byrd's complaint, which asserted Fourth Amendment and due process violations, as Heck -barred because they were similar to claims in his then-pending federal habeas corpus petition. Heck held that § 1983 damages claims are not cognizable if "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence." 512 U.S. at 487, 114 S.Ct. 2364. But, if a plaintiff's claim "even if successful, will not demonstrate the invalidity of any outstanding criminal...