1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

STEVEN ANDREW LEON,

Plaintiff,

v.

SAN JOSE POLICE DEPARTMENT, et al.,

Defendants.

Case No. 17-cv-00328-KAW (PR)

ORDER SERVING COGNIZABLE 

CLAIM

Plaintiff Steven Andrew Leon, incarcerated at the Santa Clara County Jail, has filed a pro 

se civil rights action pursuant to 42 U.S.C. § 1983, alleging the violation of his constitutional rights 

by San Jose Police Officer Guzman, #3968, and the San Jose Police Department. Plaintiff has 

consented to the jurisdiction of the undersigned United States Magistrate Judge over this action. 

Plaintiff’s motion for leave to proceed in forma pauperis is granted in a separate order. The Court 

now reviews Plaintiff’s complaint.

DISCUSSION

I. Preliminary Review of Complaint

A federal court must conduct a preliminary screening in any case in which a prisoner seeks 

redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 

§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 

that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 

monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se

pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 

Cir. 1988).

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 

claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

statement need only “‘give the defendant fair notice of what the . . . claim is and the grounds upon 

which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007). 

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 

(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 

the alleged violation was committed by a person acting under the color of state law. West v. 

Atkins, 487 U.S. 42, 48 (1988). 

Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the 

plaintiff can show that the defendant’s actions both actually and proximately caused the 

deprivation of a federally protected right. Lemire v. Cal. Dept. Corrections & Rehabilitation, 756 

F.3d 1062, 1074 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person 

deprives another of a constitutional right within the meaning of section 1983 if he does an 

affirmative act, participates in another's affirmative act or omits to perform an act which he is 

legally required to do, that causes the deprivation of which the plaintiff complains. Leer, 844 F.2d 

at 633. 

Under no circumstances is there respondeat superior liability under § 1983. Lemire, 756 

F.3d at 1074. Or, in layman's terms, under no circumstances is there liability under section 1983 

solely because one is responsible for the actions or omissions of another. Taylor v. List, 880 F.2d 

1040, 1045 (9th Cir. 1989); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 

680-81 (9th Cir. 1984). A supervisor may be liable under § 1983 upon a showing of (1) personal 

involvement in the constitutional deprivation or (2) a sufficient causal connection between the 

supervisor's wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 

1003-04 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). It is 

insufficient for a plaintiff only to allege that supervisors knew about the constitutional violation 

and that they generally created policies and procedures that led to the violation, without alleging 

“a specific policy” or “a specific event” instigated by them that led to the constitutional violations. 

Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012).

//

//
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

II. Plaintiff’s Claim

Plaintiff’s complaint alleges the following: On October 7, 2016, Plaintiff, who was 

unarmed and no threat, was struck by Officer Guzman with his baton. Plaintiff fell down 

unconscious and awoke with Officer Guzman striking him while he lay in a pool of his own blood. 

As a result of Officer’s Guzman’s actions, Plaintiff suffered a fractured left hand and right elbow 

and a laceration on the back of his head. Plaintiff’s elbow is now held together by eight screws 

and a large plate.

Liberally construed, the allegations appear to give rise to a cognizable Fourth Amendment 

claim for excessive force against Officer Guzman. However, even liberally construed, the 

allegations do not give rise to a claim against the San Jose Police Department about which there 

are no allegations in the complaint. As discussed above, there is no supervisor liability under 

§ 1983. Therefore, to state a cognizable claim against the Police Department, Plaintiff would have 

to allege a specific policy or procedure implemented by the Police Department which led to the 

constitutional violation by Officer Guzman. Plaintiff is given leave to amend his complaint to 

remedy this deficiency, if he truthfully can do so.

CONCLUSION

Based on the foregoing, the Court orders as follows:

1. The excessive force claim against the San Jose Police Department is dismissed with 

leave to amend.

2. If Plaintiff chooses to file an amended complaint to remedy the deficiency noted above, 

it must be filed within twenty-eight (28) days of the date this Order and must include the caption 

and civil case number used in this Order and the words AMENDED COMPLAINT on the first 

page. Because an amended complaint completely replaces the original complaint, Plaintiff must 

include in it all the allegations giving rise to his claim. See Ferdik v. Bonzelet, 963 F.2d 1258, 

1262 (9th Cir. 1992). Plaintiff may not incorporate material from the original complaint by 

reference. Failure to amend within the designated time will result in the dismissal with prejudice 

of the excessive force claim against the San Jose Police Department.

3. The allegations appear to give rise to a cognizable Fourth Amendment excessive force 
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

claim against Officer Guzman. 

4. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 

Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint 

(docket no. 1) and all attachments thereto, a copy of this Order, and a copy of the form “Consent 

or Declination to Magistrate Judge Jurisdiction” to Officer Guzman, #3968, at the San Jose Police 

Department. This form can also be found at www.cand.uscourts.gov/civilforms. The Clerk shall 

also mail a copy of the complaint and a copy of this Order to the San Jose Office of the City 

Attorney, and a copy of this Order to Plaintiff.

5. Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure requires him

to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant to 

Rule 4, if Defendant, after being notified of this action and asked by the Court, on behalf of 

Plaintiff, to waive service of the summons, fails to do so, he will be required to bear the cost of 

such service unless good cause be shown for his failure to sign and return the waiver forms. If 

service is waived, this action will proceed as if Defendant had been served on the date that the 

waiver is filed, except that pursuant to Rule 12(a)(1)(A)(ii), Defendant will not be required to 

serve and file an answer before sixty days from the date on which the request for waiver was sent. 

(This allows a longer time to respond than would be required if formal service of summons is 

necessary.)

Defendant is advised to read the statement set forth at the foot of the waiver form that more 

completely describes the duties of the parties with regard to waiver of service of the summons. If 

service is waived after the date provided in the Notice but before Defendant has been personally 

served, the answer shall be due sixty days from the date on which the request for waiver was sent 

or twenty days from the date the waiver form is filed, whichever is later. 

6. Defendant shall file his Consent or Declination to Magistrate Judge Jurisdiction on or 

before the date his answer is due.

7. The following briefing schedule shall govern dispositive motions in this action:

a. No later than thirty days from the date his answer is due, Defendant shall file a 

motion for summary judgment or other dispositive motion. If Defendant files a motion for 
5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

summary judgment, it shall be supported by adequate factual documentation and shall conform in 

all respects to Federal Rule of Civil Procedure 56. If Defendant is of the opinion that this case 

cannot be resolved by summary judgment, he shall so inform the Court prior to the date the 

summary judgment motion is due. All papers filed with the Court shall be promptly served on 

Plaintiff. 

At the time of filing the motion for summary judgment or other dispositive motion, 

Defendant shall comply with the Ninth Circuit’s decision in Woods v. Carey, 684 F.3d 934 (9th 

Cir. 2012), and provide Plaintiff with notice of what is required of him to oppose a summary 

judgment motion. 

b. Plaintiff’s opposition to the motion for summary judgment or other dispositive 

motion shall be filed with the Court and served on Defendant no later than twenty-eight days after 

the date on which Defendant’s motion is filed. The Ninth Circuit has held that the following notice 

should be given to pro se plaintiffs facing a summary judgment motion:

The defendants have made a motion for summary judgment by which they seek to have 

your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules 

of Civil Procedure will, if granted, end your case. 

Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 

Generally, summary judgment must be granted when there is no genuine issue of material 

fact -- that is, if there is no real dispute about any fact that would affect the result of your 

case, the party who asked for summary judgment is entitled to judgment as a matter of law, 

which will end your case. When a party you are suing makes a motion for summary 

judgment that is properly supported by declarations (or other sworn testimony), you cannot 

simply rely on what your complaint says. Instead, you must set out specific facts in 

declarations, depositions, answers to interrogatories, or authenticated documents, as 

provided in Rule 56(e), that contradict the facts shown in the defendant’s declarations and 

documents and show that there is a genuine issue of material fact for trial. If you do not 

submit your own evidence in opposition, summary judgment, if appropriate, may be 

entered against you. If summary judgment is granted [in favor of the defendants], your 

case will be dismissed and there will be no trial.

Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc).

Before filing his opposition, Plaintiff is advised to read the notice that will be provided to 

him by Defendant when the motion is filed, and Rule 56 of the Federal Rules of Civil Procedure 

and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must come 

forward with evidence showing triable issues of material fact on every essential element of his 
6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

claim). Plaintiff is cautioned that because he bears the burden of proving his allegations in this 

case, he must be prepared to produce evidence in support of those allegations when he files his 

opposition to Defendant’s summary judgment motion. Such evidence may include sworn 

declarations from himself and other witnesses to the incident, copies of documents authenticated 

by sworn declaration or discovery. Plaintiff will not be able to avoid summary judgment simply 

by repeating the allegations of his complaint.

c. Defendant shall file a reply brief no later than fourteen days after the date 

Plaintiff’s opposition is filed.

d. The motion shall be deemed submitted as of the date the reply brief is due. No 

hearing will be held on the motion unless the Court so orders at a later date.

8. Discovery may be taken in this action in accordance with the Federal Rules of Civil 

Procedure. No further court order pursuant to Rule 30(a)(2) or Local Rule 16 is required before 

the parties may conduct discovery.

9. All communications by Plaintiff with the Court must be served on Defendant, or 

Defendant’s counsel once counsel has been designated, by mailing a true copy of the document to 

Defendant or his counsel.

10. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 

informed of any change of address by filing a separate paper with the clerk headed “Notice of 

Change of Address,” and must comply with the Court's orders in a timely fashion. Failure to do so 

may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 

Procedure 41(b).

11. Extensions of time are not favored, though reasonable extensions will be granted. Any 

motion for an extension of time must be filed no later than three days prior to the deadline sought 

to be extended.

IT IS SO ORDERED.

Dated: June 12, 2017

____________________________________

KANDIS A. WESTMORE

UNITED STATES MAGISTRATE JUDGE