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Sussman v. South Salt Lake City, Inc.

United States District Court, D. Utah, Central Division

September 7, 2018

MICHAEL SUSSMAN, Plaintiff,
v.
SOUTH SALT LAKE CITY, INC.; UTAH TRANSIT AUTHORITY; UTA POLICE OFFICER WIHONGI; SHANTEE WELSH; and SALT LAKE REGIONAL MEDICAL CENTER, Defendants.

          DAVID NUFFER CHIEF DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          PAUL M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE

         Chief District Judge David Nuffer referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B).[1] At the outset, the court notes that Michael Sussman (“Plaintiff”) is proceeding pro se in this case. Consequently, the court will construe his pleadings liberally. See, e.g., Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). The court also notes that Plaintiff has been permitted to proceed in forma pauperis under 28 U.S.C. § 1915 (“IFP Statute”).[2] Before the court is the review of Plaintiff's complaint[3] under the authority of the IFP Statute.

         BACKGROUND

         Plaintiff's complaint is generally disjointed and confusing. Nevertheless, the court has liberally construed it to allege the following facts relevant to Plaintiff's asserted claims.

         On or about August 23, 2017, Plaintiff contends that he “was the victim of a number of violent felonies” on State Street in South Salt Lake City (“SSLC”), which is one of the named Defendants in this case.[4] Specifically, Plaintiff asserts that he was struck in the head with a “disassembled folding chair in a bag” by Defendant Shantee Welsh (“Welsh”).[5]

         Plaintiff maintains that he did not retaliate, but instead sought to escape by way of a bus operated by Defendant United Transit Authority (“UTA”).[6] Plaintiff contends that the driver of the bus denied Plaintiff entry aboard the bus, “trapped Plaintiff's arm and initially prevented his escape, ” and “destroyed Plaintiff's hat in Plaintiff's successful attempt to extricate his arm.”[7]

         Plaintiff alleges that he then called 911.[8] Plaintiff asserts that SSLC Police eventually arrived at the scene and ordered Plaintiff to sit on the curb.[9] Plaintiff maintains that the SSLC Police then “began their attack.”[10] Plaintiff contends that he was handcuffed and suffered an “attack on [his] neck from behind.”[11] According to Plaintiff, SSLC Police chose the location for their interaction with Plaintiff “in order to attack [his] reputation.”[12] Plaintiff asserts that he now “experiences chronic, overwhelming pain” as a result of the interaction.[13]

         Plaintiff contends that he then encountered U TA Police Officer Wihongi (“Wihongi”).[14]Plaintiff alleges that Wihongi:

• “attacked the right shoulder of the Plaintiff under the pretext of helping Plaintiff stand up while being tortured with handcuffs[;]”[15]
• “was as dramatic as possible removing the [SSLC] torturing device and administering his own[;]”[16]
• failed to provide Plaintiff with Miranda rights;[17]
• “unlawfully searched Plaintiff's backpack, pockets, and wallet” without “permission, warrant, probable cause” or the existence of “immediate exigent cirumcstances[;]”[18]
• “engineer[ed] a failure to appear warrant” against Plaintiff without due process;[19]
• gave “Plaintiff criminal trespass status for 30 days” without due process, which resulted in “a failure to appear warrant for the Plaintiff's arrest and a trial in absentia, ” caused Plaintiff's inability to receive mail for 30 days, forced Plaintiff “to sometimes undergo involuntary starvation” and eat “out of trash receptacles, ” and prevented Plaintiff “from getting follow[-]up medical treatment[;]”[20]
• forced “Plaintiff to walk with multiple injuries, most of which Wihongi inflicted[;]”[21]
• “twice diagnosed the Plaintiff as having mental illness, ” while “fail[ing] to diagnose the Plaintiff's heart condition[;]”[22] and
• placed “two of the Plaintiff's never-opened water bottles of water on the tarmac and compelled the Plaintiff to pick them up lest he be falsely charged with littering.”[23]

         Plaintiff asserts that SSLC Medics arrived at the scene, but “were dishonest and failed to provide a reasonable standard of care.”[24] Plaintiff contends that one of the SSLC Medics, whom Plaintiff refers to as “tatoo [sic] boy, ” told Plaintiff that he hadn't been “‘hit in the head that hard.'”[25] Plaintiff alleges that the SSLC Medics did not take him to the emergency room, but instead “kept the Plaintiff in the sun and in the heat in order to harm him physically.”[26]

         Plaintiff contends that on an unspecified date he had a second encounter with SSLC Police “involving unlawful restraint.”[27] In support of that contention, Plaintiff alleges only that there were two officers involved, with one of the officers being the “most aggressive.”[28]

         Plaintiff asserts that SSLC Medics arrived at the scene of the second encounter.[29]Plaintiff maintains that the two medics were “hell bent on antagonizing” him and were very talkative with him while they transported him to Defendant Salt Lake Regional Medical Center (“SLRMC”).[30]

         Plaintiff alleges that once he arrived at SLRMC, its staff refused to provide him with medical treatment.[31] Plaintiff further alleges that he gave no consent to a “forced hospital transfer by his own power.”[32] Plaintiff contends that these actions were violations of the Emergency Medical Treatment and Active Labor Act (“EMTALA”).[33] See 42 U.S.C. § 1395dd.

         Based upon those factual allegations, Plaintiff asserts multiple “claims” and requests for relief. After giving Plaintiff's complaint a very liberal construction, the court has determined that it asserts claims for certain civil rights violations, violations of EMTALA, torture, and state law claims for false arrest and assault.

         LEGAL STANDARDS

         Whenever the court authorizes a party to proceed without payment of fees under the IFP Statute, the court is required to “dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). In determining whether a complaint fails to state a claim for relief under the IFP Statute, the court employs the same standard used for analyzing motions to dismiss for failure to state a claim under rule 12(b)(6) of the Federal Rules of Civil Procedure. See Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007). Under that standard, the court “look[s] for plausibility in th[e] complaint.” Id. at 1218 (quotations and citations omitted) (second alteration in original). More specifically, the court “look[s] to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief. Rather than adjudging whether a claim is ‘improbable,' ‘[f]actual allegations [in a complaint] must be enough to raise a right to relief above the speculative level.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)) (other quotations and citation omitted) (second and third alterations in original).

         In undertaking that analysis, the court must be mindful that Plaintiff is proceeding pro se and that “[a] pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also, e.g., Ledbetter, 318 F.3d at 1187. At the same time, however, it is not “the proper function of the district court to assume the role of advocate for the pro se litigant, ” Bellmon, 935 F.2d at 1110, and the court “will not supply additional facts, nor will [it] construct a legal theory for [a pro se] plaintiff that assumes facts that have not been pleaded.” Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam). Further,

[t]he broad reading of [a pro se] plaintiff's complaint does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based. . . . [C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based. This is so because a pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted. Moreover, in analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations.

Bellmon, 935 F.2d at 1110 (citations omitted).

         After reviewing a pro se plaintiff's complaint under the IFP Statute, the court may dismiss the complaint for failure to state a claim “only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” See Kay, 500 F.3d at 1217 (quotations and citation omitted).

         ANALYSIS

         The court now turns to reviewing Plaintiff's complaint under the authority of the IFP Statute. As noted above, the court has liberally construed Plaintiff's complaint to assert claims for (1) civil rights violations, (2) violations of EMTALA, (3) torture, and (4) state law claims for false arrest and assault. The court will address those claims in turn, followed by (5) whether it would be futile to allow Plaintiff to amend his complaint.

         I. Civil Rights Violations

         Plaintiff alleges that his civil rights were violated under the following theories: (A) excessive force; (B) Miranda rights violations; (C) violations of his “rights to travel by public transportation”;[34] and (D) unreasonable search and seizure, violations of the right to free speech, and due process violations.

         A. Excessive Force

         Plaintiff's claim for excessive force is based upon the events surrounding his short detention and appears to directed at SSLC, UTA, and Wihongi. Although Plaintiff fails to cite a specific constitutional basis for his claim, the court has determined that it is best categorized as an alleged violation of the Fourth Amendment.

         The Fourth Amendment protects due process rights up until a probable cause determination, and an excessive force claim brought pursuant to the Fourth Amendment assesses the objective reasonableness of the Defendants' actions. See Estate of Booker v. Gomez, 745 F.3d 405, 419-420 (10th Cir. 2014); see also Graham v. Connor, 490 U.S. 386, 388-95 (1989) (holding that the Fourth Amendments objective reasonableness standard governs a free citizen's claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other seizure of his person). The Supreme Court has noted that its “Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396 (“Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment.”) (quotations and citation omitted).

         Plaintiff makes only conclusory allegations supporting this claim, which the court is not required to accept. See Bellmon, 935 F.2d at 1110 (providing that “conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based” and that when analyzing a complaint under the IFP Stataute, “the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations) (citations omitted); Dunn, 880 F.2d at 1197 (providing that the court “will not supply additional facts, nor will [it] construct a legal theory for [a pro se] plaintiff that assumes facts that have not been pleaded.”). Furthermore, even accepting those allegations as being true, they fall well short of alleging a viable claim for excessive force under the Fourth Amendment. Plaintiff's ...


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