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Sandoval v. El Paso Police Department S.W.A.T. Team

United States District Court, W.D. Texas, El Paso Division

February 22, 2018

DANIEL SANDOVAL, TDCJ #2115260 Plaintiff,
v.
EL PASO NORTHEAST POLICE DEPARTMENT S.W.A.T. TEAM Defendants,

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          ROBERT CASTANEDA UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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)).

         I. PROCEDURAL HISTORY

         On July 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).

         On 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).

         On 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).

         II. BACKGROUND

         On July 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.)

         Sandoval 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.[1] Sandoval was sentenced to 5 years confinement.

         Subsequently, 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. 41).

         III. LEGAL STANDARD

         28 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).

         “[A] 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)).

         To 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). “Factual ...


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