United States District Court, W.D. Texas, El Paso Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
CASTANEDA UNITED STATES MAGISTRATE JUDGE
Daniel Sandoval (“Sandoval”), proceeding pro
se, filed a complaint pursuant to 42 U.S.C. § 1983.
After due consideration, pursuant to 28 U.S.C. § 1915,
the Court RECOMMENDS that Sandoval's
claims should be DISMISSED WITH PREJUDICE to
their being asserted again until the Heck conditions
are met. DeLeon v. City of Corpus Christi, 488 F.3d
649, 657 (5th Cir. 2007) (citing Johnson v.
McElveen, 101 F.3d 423, 424 (5th Cir. 1996)).
14, 2017, Sandoval filed his original complaint and an
application to proceed In Forma Pauperis. (ECF. No.
1). Subsequently, on August 03, 2017, the Court granted
Sandoval's application and filed his original complaint.
(ECF. Nos. 5, 6).
August 31, 2017, the City of El Paso filed its answer and
motion to dismiss. (ECF. No. 18). Separately, Officer Mata
and Officer Butzon filed their motions to dismiss on
September 1, 2017, and October 25, 2017, respectively. (ECF.
Nos. 19, 29). On October 24, 2017, Sandoval filed a motion to
appoint counsel which this Court denied on November 1, 2017.
(ECF. Nos. 31, 32).
November 28, 2017, Sandoval attempted to amend his original
complaint by naming additional defendants. (ECF. No. 40). On
January 5, 2018, the Court granted Sandoval's request,
and his amended complaint was filed on January 8, 2018. (ECF.
Nos. 40, 41).
21, 2015, El Paso Police responded to several 911 calls
regarding an individual threatening several people with
weapons. (ECF. No. 19:1). After interviewing several
witnesses, the police identified the individual as Daniel
Sandoval. (Id.) Subsequently, Sandoval barricaded
himself in his home and the SWAT and Crisis Management Teams
(“CMT”) were called. (ECF. No. 19: Exh. A).
First, the SWAT and CMT officers attempted to resolve the
situation through a loud speaker and a throw phone.
(Id.) After their unsuccessful attempts, the SWAT
and CMT officers attempted to force Sandoval out of his home
by injecting chemical agents into Sandoval's residence.
(Id.) Once again their efforts were unsuccessful.
(Id.) Finally, after hearing noises emanating from
Sandoval's garage, the SWAT and CMT officers decided to
use an armored vehicle (“Bearcat”) to breach the
garage door and introduce chemical agents into the garage.
(Id.) Before the Bearcat could breach the garage
door, Sandoval drove his vehicle through the garage door,
rammed into his mother's SUV, knocked over a small stone
wall, drove through his neighbor's yard, and fled at a
high speed with his lights turned off. (Id.) During
the subsequent car chase, Sandoval rammed one SWAT equipment
vehicle, injuring one of the officers, and rammed another
occupied police vehicle. (Id.) Eventually, due to
the heavy damages sustained from ramming several vehicles,
Sandoval's vehicle became disabled. (Id.)
refused to come out of his disabled vehicle and was armed
with two knives. (Id.) In order to remove Sandoval
from his vehicle, Officer Solis tased him. (Id.) The
first TASER shot was ineffective, and Officer Goggins was
forced to tase Sandoval again when Sandoval attempted to cut
the cables from the first TASER. (Id.) The second
shot momentarily disabled Sandoval. (Id.) Members of
the SWAT team then dragged Sandoval out of his vehicle and
forcibly removed the knives from Sandoval. (Id.)
After being handcuffed, Sandoval continued to struggle and
spit at the SWAT team. (Id.) The SWAT team used
additional force to subdue Sandoval and place him under
arrest. (Id.) According to Sandoval, the SWAT team
tased him “way pass the limit.” (ECF. No. 7:4).
The officers used excessive force when they dragged him out
of his vehicle, slammed him on the ground, cuffed him, kicked
him, and then slammed his head again on the ground and on the
police vehicle. (Id.) Sandoval claims he suffered
fractures to his lower back and lost a front tooth due to the
excessive force employed by the SWAT team. (ECF. No. 41).
After being arrested, Sandoval entered into a plea agreement
pleading guilty to two counts of aggravated assault with a
deadly weapon and one count of evading arrest with a
vehicle. Sandoval was sentenced to 5 years
Sandoval brought suit under § 1983 for the violation of
his Fourth Amendment rights in connection with the force used
in his arrest. In Sandoval's original complaint, Sandoval
contends that the El Paso Northeast Police Department SWAT
team, Officer Mata, Officer Butzon, and Officer Short
violated his Fourth Amendment rights by using excessive force
(ECF. No. 7). In his amended complaint, Sandoval adds
Officers Mazza, Machuca, Montion, White, Montes, Solis,
Talamantes, and Goggins as additional defendants. (ECF. No.
U.S.C. § 1915 instructs that a court “shall”
dismiss an in forma pauperis complaint at any time,
if it determines that the complaint is frivolous or it fails
to state a claim on which relief may be granted. 28 U.S.C.
§ 1915(e)(2)(B)(i)-(ii) (2012). Further, the court may
sua sponte dismiss on these grounds, even without
serving the defendants. See Wilson v. Barrientos,
926 F.2d 480, 482 (5th Cir. 1991) (“Dismissal [under
§ 1915] is ‘often made sua sponte prior
to the issuance of process, so as to spare prospective
defendants the inconvenience and expense of answering such
complaints.'”) (quoting Neitzke v.
Williams, 490 U.S. 319, 324 (1989)). The standard under
§ 1915(e)(2)(B) for dismissing a frivolous complaint
applies to both prisoner and non-prisoner complaints.
Newsome v. EEOC, 301 F.3d 227, 231-33 (5th Cir.
2002) (per curiam) (affirming dismissal based on §
1915(e)(2)(B) in a non-prisoner case).
complaint . . . is frivolous where it lacks an arguable basis
either in law or in fact.” Neitzke, 490 U.S.
at 325. “A complaint lacks an arguable basis in law if
it is based on an indisputably meritless legal theory, such
as if the complaint alleges the violation of a legal interest
which clearly does not exist.” Berry v. Brady,
192 F.3d 504, 507 (5th Cir. 1999) (quoting Harper v.
Showers, 174 F.3d 716, 718 (5th Cir. 1999)). A claim is
factually frivolous if the facts are “clearly baseless,
a category encompassing allegations that are ‘fanciful,
' ‘fantastic, ' and
‘delusional.'” Hicks v. Garner, 69
F.3d 22, 25 (5th Cir. 1995) (quoting Denton v. Hernandez, 504
U.S. 25, 33-34 (1992)).
determine whether a complaint fails to state a claim upon
which relief may be granted, courts engage in the same
analysis as when ruling on a motion for dismissal under
Federal Rule of Civil Procedure 12(b)(6). See Hale v.
King, 642 F.3d 492, 497-99 (5th Cir. 2011) (per curiam).
To survive a Rule 12(b)(6) motion to dismiss, a complaint
must contain “sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks and citation omitted).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted).
To meet this pleading standard, the complaint must state more
than “an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. (citation omitted).