Gregory Ell Shehee v. Paul Tanaka et al

Filing 5

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Judge Percy Anderson. The Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted 30 days from the date of this Memorandum and Order within which to file a First Amended Complaint. The First Amended Complaint shall be complete in itself. It shall not refer in any manner to any prior complaint. Plaintiff may not add Defendants without leave of court. Failure to file a timely First Amended Complaint may result in the dismissal of this action. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 GREGORY SHEHEE, ) NO. CV 12-10608-PA(E) ) Plaintiff, ) ) v. ) MEMORANDUM AND ORDER DISMISSING ) PAUL TANAKA, et al., ) COMPLAINT WITH LEAVE TO AMEND ) ) Defendants. ) _________________________________) 17 18 19 For the reasons discussed below, the Complaint is dismissed with leave to amend. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). 20 21 BACKGROUND 22 23 Plaintiff, allegedly a detainee at the Los Angeles County Jail 24 Twin Towers Correctional Facility, brings this civil rights action 25 pursuant to 42 U.S.C. section 1983 against Los Angeles County Sheriff 26 Paul Tanaka [sic], Los Angeles County Supervisor Gloria Molina, and a 27 number of jail officials and other persons. 28 filed “Request to Waive Court Fees” identifies Plaintiff’s address as Plaintiff’s concurrently 1 the Coalinga State Hospital, but the Complaint shows Plaintiff’s 2 address to be the Twin Towers County Correctional Facility. 3 4 The Complaint consists of a form Complaint to which is attached a 5 typed and handwritten Complaint containing the charging allegations.1 6 The Complaint is virtually identical to a Complaint Plaintiff 7 previously filed in this Court in 2008, in Shehee v. Baca, CV 08-2277- 8 JHN(E).2 9 page in this action is typed, whereas the caption page in the previous 10 action was handwritten; (2) in this action, Plaintiff sues Paul Tanaka 11 as the “Los Angeles County Sheriff,” whereas in Shehee v. Baca 12 Plaintiff sued Los Angeles County Sheriff Leroy Baca; and (3) in this 13 action, Plaintiff seeks damages in the sum of $524 million, whereas 14 the Complaint in Shehee v. Baca sought only $124 million. The only three differences appear to be: (1) the caption 15 16 PLAINTIFF’S PREVIOUS ACTION IN SHEHEE v. BACA 17 18 On May 2, 2008, the Court dismissed the Complaint in Shehee v. 19 Baca with leave to amend. After receiving several extensions of time, 20 Plaintiff filed a First Amended Complaint on August 22, 2008, 21 accompanied by thirty filed “appendices” in a stack over a foot high 22 and containing hundreds of inmate requests and grievances submitted by 23 Plaintiff, various medical records, at least a hundred letters to 24 1 25 Unless otherwise indicated, all subsequent references to the “Complaint” refer to the typewritten Complaint attached to the form Complaint. 26 2 27 28 The Court takes judicial notice of the docket and filed documents in Shehee v. Baca, CV 08-2277-JHN(E). See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records). 2 1 Plaintiff from the American Civil Liberties Union, and many other 2 unnumbered documents of uncertain significance. 3 the Court dismissed the First Amended Complaint with leave to amend. On September 5, 2008, 4 5 Despite several extensions of time, Plaintiff did not file a 6 timely Second Amended Complaint. Therefore, on March 5, 2009, the 7 Magistrate Judge issued a Report and Recommendation recommending 8 dismissal of the action without prejudice for failure to prosecute. 9 However, On March 26, 2008, the Magistrate Judge withdrew the Report 10 and Recommendation after receiving another request for an extension of 11 time from Plaintiff, and granted Plaintiff another extension of time 12 to file a Second Amended Complaint. 13 14 Plaintiff filed a notice of appeal on April 28, 2009. On May 1, 15 2009, Plaintiff filed a Second Amended Complaint accompanied by a 16 request to “move” all of the appendices to the First Amended Complaint 17 into the Second Amended Complaint. 18 dismissed the Second Amended Complaint with leave to amend. On May 13, 2009, the Court 19 20 On June 9, 2009, Plaintiff filed a Third Amended Complaint. 21 June 10, 2009, the Court issued an “Order Directing Service of Process 22 of Third Amended Complaint by the United States Marshal” on the County 23 of Los Angeles and on Defendants Baca, Baker, Waters, Adams, Becerra, 24 Molina, Clark, Peck and Malone in their individual capacities. 25 26 On June 29, 2009, the United States Court of Appeals for the 27 Ninth Circuit dismissed Plaintiff’s appeal pursuant to Plaintiff’s 28 request for a voluntary dismissal. 3 On 1 On August 25, 2009, Defendants Baca and Molina filed motions to 2 dismiss. On October 23, 2009, the Court dismissed the Third Amended 3 Complaint with leave to amend. 4 Plaintiff a requested extension, Plaintiff did not file a timely 5 Fourth Amended Complaint. 6 Magistrate Judge issued a Report and Recommendation recommending 7 dismissal of the action without prejudice for failure to prosecute. Although the Court later granted Therefore, on December 22, 2009, the 8 9 On December 22, 2009, however, Plaintiff filed another request 10 for an extension of time to file a Fourth Amended Complaint. 11 Therefore, on December 28, 2009, the Magistrate Judge withdrew the 12 Report and Recommendation and granted Plaintiff an extension of time 13 to file a Fourth Amended Complaint. 14 15 Plaintiff again failed to file a timely Fourth Amended Complaint 16 within the allotted time. Therefore, on February 1, 2009, the 17 Magistrate Judge issued a Report and Recommendation recommending 18 dismissal of the action without prejudice for failure to prosecute. 19 Plaintiff did not file any objections or any other document in 20 response to the Report and Recommendation. 21 District Court issued an Order approving and adopting the Report and 22 Recommendation. On March 9, 2009, the Judgment was entered on March 10, 2010. 23 24 Plaintiff filed a Notice of Appeal on March 25, 2010. On 25 February 3, 2012, the United States Court of Appeals for the Ninth 26 Circuit affirmed the judgment. 27 on February 6, 2012. The mandate was entered in this Court 28 4 1 PLAINTIFF’S ALLEGATIONS IN THE PRESENT COMPLAINT 2 3 Plaintiff alleges that, since February 2, 2001, he has been a 4 civil detainee confined at the Los Angeles County Jail “Twin Towers” 5 facility pending civil proceedings under California’s Sexually Violent 6 Predators Act, California Welfare and Institutions Code § 6600 et seq. 7 (“SVP Act”) (Complaint, pp. 2, 5). 8 entitled “Defendants,” Plaintiff identifies the Defendants as: 9 (1) “Sheriff” Tanaka; (2) Supervisor Molina; (3) sheriff’s captains 10 Marilyn Baker, David Waters, Gary L. Adams and I. Becerra; (3) jail 11 chief physicians John Clark, Sander Peck and Young; (4) Dr. Donald S. 12 Minckler, the Director of Glaucoma Services at the Keck School of 13 Medicine at the University of Southern California (“USC”); (5) medical 14 student Jane Doe; (6) jail dietary supervisor Mr. McDonald; and 15 (7) D.A. Cruz of the jail Legal Unit, Inmate Pro-Per Services. 16 Plaintiff sues all of these Defendants in their individual and 17 official capacities. 18 Complaint appears to allege claims against numerous other persons. 19 Plaintiff seeks unspecified injunctive relief, punitive damages in the 20 sum of $524 million, and (apparently) an order requiring unidentified 21 sheriff’s department employees to testify “confidentially” (Complaint, 22 “Request for Prayer for Relief”). In the section of the Complaint As discussed below, however, the body of the 23 24 The Complaint purports to allege twelve claims for relief, some 25 of which contain overlapping allegations: 26 /// 27 Claim One 28 5 1 In Claim One, Plaintiff alleges that, in September of 1999, 2 Plaintiff was diagnosed with glaucoma of both eyes (Complaint, p. 6). 3 Plaintiff alleges that, following Plaintiff’s transfer to the jail, 4 Dr. Williams examined Plaintiff and prescribed medication, including 5 pain medication (id.). 6 his pain medication from 2004 through 2006 (id.). 7 February 1, 2005, “Jane Doe,” allegedly a medical student at the 8 Doheny Eye Institute, Keck School of Medicine, assertedly deliberately 9 misdiagnosed Plaintiff, allegedly causing Plaintiff to lose vision in Unidentified nurses allegedly denied Plaintiff On or about 10 his left eye and to suffer pain and injury to his right eye (id.). 11 Plaintiff also alleges that an unidentified person or persons denied 12 Plaintiff “doctor-prescribed” eye drops (id.).3 13 14 Plaintiff further alleges that unidentified persons caused 15 unhealthy conditions by using their feet to slide Plaintiff’s 16 medication under his cell door (id.). 17 Supervisor of Medical Services for the jail, who is unidentified, 18 failed to train his or her subordinates to give Plaintiff adequate 19 medical treatment and to provide medication in a proper manner (id.). Plaintiff alleges that the 20 21 Claim Two 22 23 Plaintiff alleges Dietary Services Supervisor McDonald and 24 Medical Diets Supervisor Francisco Lerena failed to train their staffs 25 properly, causing Plaintiff to be denied his allegedly doctor- 26 prescribed and court-ordered “No Red Meat” diet (Complaint, p. 7). 27 3 28 It is unclear whether these eye drops are the same medications allegedly prescribed by Dr. Williams. 6 1 According to Plaintiff, these supervisors should have known of a 2 history of cancer in Plaintiff’s family and Plaintiff’s allegedly high 3 risk for cancer (id.). 4 Blanca Moran and other staff members denied Plaintiff his allegedly 5 prescribed “No Red Meat” diet, and that staff members “Jane Doe” and 6 “Ms. Lee” denied Plaintiff a prescribed “No Spice” diet, allegedly 7 causing Plaintiff to throw up (id.). 8 unable to eat his one hot meal for seven days (id.). Plaintiff alleges that dietary staff member According to Plaintiff, he was 9 10 Plaintiff also alleged that unidentified “medical diet employees 11 and deputies” used inmates to “food-poison” Plaintiff, assertedly 12 causing Plaintiff to throw up and defecate “uncontrollably” for three 13 days, and necessitating treatment with an “I.V.” for six hours (id., 14 pp. 7-8). 15 not civil detainees were prohibited from coming into contact with a 16 detainee’s food (id., p. 8). 17 denied Plaintiff treatment for this condition (id., p. 8). Plaintiff contends medical staff knew that inmates who were Plaintiff also alleges medical staff 18 19 Claim Three 20 21 Plaintiff alleges that, due to the failure of Sheriff Baca and 22 Defendants Baker and Waters properly to train their subordinates, 23 Plaintiff was placed in administrative segregation from approximately 24 October 12, 2004 until July 5, 2007, without a hearing, during which 25 time he allegedly was denied privileges and access to a law library 26 (id.). 27 subordinates to put Plaintiff’s life in danger by placing him in 28 administrative segregation with “convicted serious murderers such as Plaintiff further alleges these Defendants allowed their 7 1 Clarence Dwayne [sic] Turner,” and by allowing Plaintiff to be 2 attacked by penal inmates (id.). 3 Defendants allowed their deputies: (1) to retaliate against Plaintiff 4 for filing inmate complaints; (2) to discriminate against Plaintiff on 5 account of race; and (2) to treat Plaintiff as a penal inmate (id.). Plaintiff further alleges that these 6 7 Claim Four 8 9 Plaintiff alleges that Sergeant McLone, deputies Gudino, Julian, 10 Pitino and Wargo, and other unidentified deputies denied Plaintiff 11 access to the courts and retaliated against Plaintiff for filing 12 grievances “based on their discrimination against [Plaintiff] for 13 being a sexual predator” (Complaint, p. 9). 14 allegedly denied Plaintiff his one hour, doctor-prescribed out-of-cell 15 exercise time (id.). 16 for his glaucoma and access to the medical clinic (id.). 17 Gudino allegedly took four boxes of Plaintiff’s legal materials, the 18 loss of which assertedly prejudiced Plaintiff’s ability to present an 19 adequate defense in his SVP proceedings (id.). These individuals also Defendants allegedly denied Plaintiff medication Deputy 20 Defendants allegedly housed Plaintiff with penal inmates “with 21 22 the expectation of having [Plaintiff] attacked and possibly killed” by 23 convicted murderer inmate Turner (id.). 24 threatened Plaintiff in December of 2006, saying he, Turner, was going 25 to make Plaintiff “‘victim #12’” (id.). 26 /// 27 28 Inmate Turner allegedly Defendants also assertedly denied Plaintiff the ability to speak to a supervisor (id.). Plaintiff allegedly received no response to 8 1 Plaintiff’s “numerous” grievances (id.). Defendants allegedly 2 discriminated against Plaintiff on account of Plaintiff’s race and 3 status as a sexually violent predator detainee (id.). 4 5 Plaintiff further alleges that, on July 5, 2005, several “John 6 Doe” deputies and an unidentified supervisor subjected Plaintiff to 7 excessive force by “forcefully” handcuffing Plaintiff after Plaintiff 8 requested to speak with a supervisor concerning his “No Red Meat” diet 9 (id., p. 10). According to Plaintiff, a 280-pound deputy dropped his 10 weight on Plaintiff’s back, and other deputies placed Plaintiff’s 11 hands high above his shoulder blades, assertedly causing Plaintiff 12 serious injury (id.). 13 jamb, causing Plaintiff’s lip to split (id.). 14 removed with his arms forced up and then slammed against a staging 15 door (id.). 16 metal screen, breaking Plaintiff’s eyeglasses and injuring his face 17 and neck (id.). 18 tightly as to cut off Plaintiff’s circulation and bruise his wrists 19 (id.). 20 without medical attention for over five hours (id.). 21 senior deputy allegedly observed this incident but reportedly did 22 nothing to protect Plaintiff (id.). 23 morning, nurse Kim denied Plaintiff medical care because the nurse 24 assertedly was afraid of the deputies (id.). 25 not receive medical attention for two weeks (id.). 26 /// 27 Plaintiff alleges he was slammed against a door Plaintiff allegedly was The deputies allegedly slammed Plaintiff’s face into a The deputies then reportedly handcuffed Plaintiff so Plaintiff allegedly was left in this condition in the yard Claim Five 28 9 An unidentified Plaintiff alleges that, the next Plaintiff allegedly did 1 Plaintiff alleges that “Custody Assistant D.A. Cruz,” deputy 2 Bisaha, and other deputies assigned to the Legal Unit denied Plaintiff 3 law library access despite court orders for library access and legal 4 supplies from March 22, 2001 through July 2007 (Complaint, p. 11). 5 These denials allegedly caused “irreparable harm” to seven state and 6 federal lawsuits in which Plaintiff was involved, including his SVP 7 proceedings (id.). 8 reportedly denied Plaintiff access to the module law library, causing 9 harm to Plaintiff’s cases (id.). Other unidentified “John Doe” deputies also Plaintiff further alleges that, in 10 retaliation for Plaintiff’s grievances, unidentified deputies left 11 Plaintiff in an unsanitary, smelly library bathroom for 12 hours, and 12 left Plaintiff in a shower that smelled of urine (id.). 13 14 Claim Six 15 16 Plaintiff alleges that deputy Benahizee and a psychiatrist, Dr. 17 King, exhibited deliberate indifference and retaliated against 18 Plaintiff for filing grievances by causing to be filed a fraudulent 19 “psych report” alleging Plaintiff was “homicidal/suicidal” (Complaint, 20 p. 12). 21 excessively tight waistchains and took him to the office of Dr. Green, 22 who assertedly said he, Dr. Green, would send Plaintiff to the 23 forensics floor with eye medication and medical orders for a “No Red 24 Meat Diet,” but that Dr. Green would not clear Plaintiff from being 25 labeled “homicidal/suicidal” (id.). 26 placed in a “5-Points Restraint Bed” (id.). Deputies allegedly confined Plaintiff in a wheelchair in 27 28 Claim Seven 10 Plaintiff allegedly was almost 1 Plaintiff alleges that deputies Bisaha and Smeltzer denied 2 Plaintiff his right of privacy when these deputies entered Plaintiff’s 3 cell and examined and videotaped Plaintiff’s legal documents 4 (Complaint, pp. 12-13). 5 injury to Plaintiff’s other lawsuits (id., p. 13). These actions allegedly caused irreparable 6 7 Claim Eight 8 9 Plaintiff alleges that unidentified deputies retaliated against 10 Plaintiff for filing complaints and contacting the ACLU concerning 11 inadequacies in the law library, assertedly by leaving Plaintiff in a 12 law library lacking toilet facilities for six to twelve hours, which 13 allegedly caused pain to Plaintiff’s liver and kidneys (Complaint, pp. 14 13-14). 15 of his various lawsuits, allegedly from approximately March 6, 2002 16 “continuously” until June 2007 (id., p. 14). These actions allegedly hindered Plaintiff in the prosecution 17 18 Plaintiff also alleges the library had no toilet or running water 19 in the library, bad lighting, defective telephones and computer and no 20 “ADA computer screens” (id.). 21 employee Smilor said he, Smilor, would put his urine in Plaintiff’s 22 doctor-prescribed special diet (id.). 23 to notify Sheriff Baca and other supervisors concerning the alleged 24 denial of Plaintiff’s privileges and rights due to a lack of training 25 (id.). 26 /// 27 Plaintiff alleges that sheriff’s Claim Nine 28 11 Plaintiff allegedly attempted 1 Plaintiff alleges that, on September 5, 2007, Nurse Cruz told 2 Plaintiff that Plaintiff had an “ACLU medical court order” for a “No 3 Spice” diet, “which was denied to [Plaintiff]” (Complaint, p. 14). 4 Plaintiff allegedly was told to see a doctor, but Nurse Basilis 5 refused to allow Plaintiff to see a doctor (id., pp. 14-15). 6 Plaintiff protested that he allegedly had a court order to see a 7 doctor, Deputy Briseno allegedly grabbed Plaintiff and slammed 8 Plaintiff’s face into a wall (id., p. 15). 9 took Plaintiff to his housing module and slammed Plaintiff face first When Deputies then allegedly 10 into the wall beside his cell (id.). Sergeant Christiansen allegedly 11 stood by, failed to intervene to protect Plaintiff, and then ordered 12 Plaintiff locked in his cell without any medical attention (id.). 13 “pill call” nurse allegedly refused Plaintiff’s request for medical 14 treatment for severe pain, and refused to document Plaintiff’s 15 injuries (id.). A 16 17 The next morning, deputy Cobb and a “Jane Doe” nurse allegedly 18 came to Plaintiff’s cell to administer medication before Plaintiff 19 went to court (id.). 20 bed, assertedly stated he had severe pain in his neck, back and face 21 and wanted to see a doctor (id., pp. 15-16). 22 denied Plaintiff’s request to see a doctor (id., p. 16). 23 Plaintiff allegedly told deputies Owens and Pimentel that Plaintiff 24 was in severe pain and asked to see a doctor (id.). 25 allegedly was taken to the clinic, where nurses assertedly denied 26 Plaintiff access to a doctor (id.). 27 waistchains on Plaintiff which were so tight that they caused bruises 28 and broke the skin on Plaintiff’s wrist (id.). Plaintiff, who allegedly could barely get out of 12 The nurse allegedly Later, Plaintiff Owens allegedly fastened The deputies and 1 nurses allegedly refused Plaintiff’s requests to see a doctor (id.). 2 The deputies allegedly pulled Plaintiff to the floor and placed their 3 knees on Plaintiff’s spine, assertedly causing severe pain to 4 Plaintiff’s spine, back and neck (id., p. 17). 5 allegedly stuck his fingers into Plaintiff’s eyes and sprayed “O.C. 6 Mace” into Plaintiff’s eyes and mouth (id.). 7 Farole and other staff nurses allegedly observed the attack and 8 Plaintiff’s injuries, but left the scene and failed to document the 9 incident or Plaintiff’s injuries (id.). Deputy Pimentel Medical employees Adu, 10 11 The deputies allegedly left Plaintiff in a holding tank for 12 thirty minutes without any means of washing his eyes (id.). According 13 to Plaintiff, a nurse appeared and allegedly sprayed water in 14 Plaintiff’s eyes, which allegedly did not relieve the pain because 15 Plaintiff assertedly has glaucoma, macular hole degeneration and other 16 eye diseases (id.). 17 suffer blurred vision, severe headaches and dizziness (id.). 18 Plaintiff further alleges that, on September 5 and 6, 2007, sheriff’s 19 doctors Wilbur Williams, Raleigh Saddler, Jr. and “Dr. Doe” denied 20 Plaintiff medical care for his eyes, face, head, neck, spine and back 21 (id., p. 18). 22 report (id.). This incident allegedly has caused Plaintiff to Dr. Williams allegedly made a fraudulent examination 23 24 Sergeant Patterson allegedly made a video, and Plaintiff 25 allegedly was locked down in his cell for four days without any reason 26 (id.). 27 deputies allegedly videotaped Plaintiff’s statement concerning the 28 alleged assault (id.). On September 30, 2007, Sergeant Christiansen and other Sergeant Christiansen allegedly falsely denied 13 1 being involved in the assault (id.). Sergeant Christiansen allegedly 2 took Plaintiff to the medical clinic, videotaping Plaintiff during the 3 trip, and told the nurse to tell the doctor that Plaintiff had a 4 “small acute arthritis” in his neck (id.). 5 refused to examine Plaintiff, gave Plaintiff a pain pill, and said he 6 would have Plaintiff’s lower back x-rayed (id., p. 19). 7 examining Plaintiff, the doctor said Plaintiff had a “small acute 8 arthritis” of the neck (id.). 9 doctor to examine Plaintiff constituted retaliation against Plaintiff A “Dr. Doe” allegedly Without Plaintiff alleges the failure of any 10 for filing “over 2,875 Inmate Complaint Forms against Sheriff’s 11 employees” (id.) (original emphasis). 12 13 Claim Ten 14 15 Plaintiff alleges that, on September 22 and September 30, 2007, 16 Lieutenants Slago and Lopez confined Plaintiff in administrative 17 segregation, assertedly without affording Plaintiff his right to call 18 staff and inmate witnesses in his defense (Complaint, p. 19). 19 Sergeants Figueroa, Wenger and Estrada allegedly failed to train their 20 subordinates, assertedly causing Plaintiff to be placed unlawfully in 21 administrative segregation with penal inmates, which allegedly put 22 Plaintiff’s life in danger (id.). 23 /// 24 /// 25 /// 26 /// 27 Claim Eleven 28 14 1 Plaintiff alleges that, from August 28, 2007 to the present, Head 2 Supervising Cook Lily Sedaña, deputy Felicia Price, and unnamed 3 medical supervisors and staff have retaliated against Plaintiff for 4 filing grievances by denying Plaintiff his allegedly doctor- and 5 court-ordered “No Spice Diet” (Complaint, p. 20). 6 7 Claim Twelve 8 9 Plaintiff alleges that, on February 25, 2008, two unidentified 10 transportation deputies committed negligence by failing to report to 11 Coalinga State Hospital medical department supervisors that the engine 12 on the Twin Towers facility bus was spilling fuel on the freeway 13 (Complaint, p. 21). 14 to assertedly toxic fumes which allegedly caused pain and injury to 15 Plaintiff’s respiratory and cardio pulmonary functions (id.). 16 Plaintiff also allegedly had to obtain an injection to prevent 17 Plaintiff from throwing up (id.). Plaintiff, allegedly a bus passenger, was exposed 18 19 DISCUSSION 20 21 I. Unclear Identification of Defendants 22 23 As mentioned above, Plaintiff identifies certain Defendants in 24 the caption and introductory paragraphs of the Complaint, but also 25 appears to assert claims against many other individuals, some 26 identified by name in the various claims for relief and some 27 identified by fictitious names. 28 persons Plaintiff intends to sue. It is unclear which of these other It also is unclear which Defendants 15 1 are being sued on which claim for relief. As the Court previously 2 advised Plaintiff in Shehee v. Baca, a complaint is subject to 3 dismissal if one cannot determine from the pleading who is being sued. 4 McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996).4 5 6 II. Official Capacity Claims 7 8 9 The official capacity claims against the individual Defendants must be construed as claims against the County. See Kentucky v. 10 Graham, 473 U.S. 159, 165-66 (1985). As the Court previously advised 11 Plaintiff in Shehee v. Baca, Plaintiff may not sue the County or any 12 municipal entity on a theory of respondeat superior, which is not a 13 theory of liability cognizable under 42 U.S.C. section 1983. 14 Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011); Ashcroft v. Iqbal, 15 556 U.S. 662, 676 (2009); Polk County v. Dodson, 454 U.S. 312, 325 16 (1981); Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1185 (9th 17 Cir. 2002), cert. denied, 537 U.S. 1106 (2003). 18 may be held liable only if the alleged wrongdoing was committed 19 pursuant to a municipal policy, custom or usage. 20 Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 402-04 21 (1997); Monell v. New York City Department of Social Services, 436 22 U.S. 658, 691 (1978). See A municipal entity See Board of County Plaintiff does not allege any basis for 23 24 25 26 27 28 4 A plaintiff may name a fictitious defendant in his or her complaint if the plaintiff does not know the true identity of the defendant prior to the filing of the complaint. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). However, before the Court can order service of process by the United States Marshal upon any fictitious Defendant, Plaintiff must provide identifying information sufficient to permit the United States Marshal to effect service of process upon the Defendant, including the Defendant’s full name and address. 16 1 municipal liability against the County. Conclusory allegations do not 2 suffice. 3 allege more than an “unadorned, the-defendant-unlawfully-harmed-me 4 accusation”; a pleading that “offers labels and conclusions or a 5 formulaic recitation of the elements of a cause of action will not 6 do”); Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (en banc), 7 cert. denied, 132 S. Ct. 2101 (2012) (“allegations in a complaint or 8 counterclaim may not simply recite the elements of a cause of action, 9 but must contain sufficient allegations of underlying facts to give See Ashcroft v. Iqbal, 556 U.S. at 678 (plaintiff must 10 fair notice and to enable the opposing party to defend itself 11 effectively”); see also AE ex rel. Hernandez v. County of Tulare, 666 12 F.3d 631, 637 (9th Cir. 2012) (pleading standards set forth in Starr 13 v. Baca govern municipal liability claims). 14 15 Additionally, Plaintiff may not recover punitive damages against 16 a governmental entity or an individual governmental officer in his or 17 her official capacity. 18 453 U.S. 247, 271 (1981); Ruvalcaba v. City of Los Angeles, 167 F.3d 19 514, 524 (9th Cir.), cert. denied, 528 U.S. 1003 (1999). See City of Newport v. Fact Concerts, Inc., 20 21 III. Personal Involvement of Individual Defendants 22 23 As the Court previously advised Plaintiff in Shehee v. Baca, an 24 individual defendant is not liable on a civil rights claim unless the 25 facts establish the defendant’s personal involvement in the 26 constitutional deprivation or a causal connection between the 27 defendant’s wrongful conduct and the alleged constitutional 28 deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); 17 1 Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). Plaintiff may 2 not sue any supervisor on a theory that the supervisor is liable for 3 the acts of his or her subordinates. 4 U.S. at 325. 5 capacity “for [his or her] own culpable action or inaction in the 6 training, supervision or control of [his or her] subordinates.” 7 Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1093 (9th Cir. 1998) 8 (quoting Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 9 1991)). See Polk County v. Dodson, 454 A supervisor may be held liable in his or her individual To state a claim against any individual defendant, the 10 plaintiff must allege facts showing that the individual defendant 11 participated in or directed the alleged violation, or knew of the 12 violation and failed to act to prevent it. 13 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 14 (1999) (“A plaintiff must allege facts, not simply conclusions, that 15 show that an individual was personally involved in the deprivation of 16 his civil rights.”); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 17 1989). See Barren v. Harrington, 18 19 Plaintiff fails to allege the personal involvement of several of 20 the Defendants or putative Defendants. For example, Plaintiff names 21 Paul Tanaka, Supervisor Molina, the chief physicians of the jail, Dr. 22 Minckler, and sheriff’s captains Adams and Becerra, but generally 23 fails to allege facts showing these persons’ personal involvement in 24 any alleged civil rights violation. 25 to those Defendants or putative Defendants as to whom Plaintiff fails 26 to plead personal involvement in any alleged constitutional violation. 27 IV. The Complaint is insufficient as Claims Implicating Validity of SVP Determination 28 18 1 Claim Twelve suggests Plaintiff may now be confined at the 2 Coalinga State Hospital, a facility under the jurisdiction of the 3 California Department of Mental Health which houses those determined 4 to be sexually violent predators. 5 4100(b), 7200. See Cal. Welf. & Inst. Code §§ 6 7 The SVP Act establishes procedures whereby a person previously 8 convicted of a “sexually violent” offense against two or more victims 9 and who suffers from a “diagnosed mental disorder that makes the 10 person a danger to the health and safety of others in that it is 11 likely that he or she will engage in sexually violent criminal 12 behavior” may be civilly committed for a determinate period. 13 Welf. & Inst. Code § 6600 et seq.; Seaton v. Mayberg, 610 F.3d 530, 14 532-33 (9th Cir. 2010), cert. denied, 131 S. Ct. 1534 (2011). 15 Following the filing of a petition for a determination that an 16 individual is a sexually violent predator, the Superior Court must 17 hold a hearing to determine whether there is probable cause to believe 18 that the person is likely to engage in sexually violent predatory 19 criminal behavior upon release from prison. 20 Code § 6602(a); Hubbart v. Superior Court, 19 Cal. 4th 1138, 1146-47, 21 81 Cal. Rptr. 2d 492, 969 P.2d 584 (1999). 22 probable cause, the alleged predator must be detained in a “secure 23 facility” pending a jury trial to determine whether he is a sexually 24 violent predator within the meaning of the SVP Act. 25 Inst. Code § 6602(a); Hubbart v. Superior Court, 19 Cal. 4th at 1146- 26 47. 27 sexually violent predator, the defendant is committed to the custody 28 of the California Department of Mental Health for an indefinite term. See Cal. See Cal. Welf. & Inst. If the court finds See Cal. Welf. & After a trial at which the defendant is determined to be a 19 1 See Cal. Welf. & Inst. Code §§ 6604; Hubbart v. Superior Court, 19 2 Cal. 4th at 1147. 3 4 Plaintiff’s allegations concerning his asserted transportation 5 from the jail to the Coalinga State Hospital suggest that Plaintiff’s 6 continuing confinement resulted from a determination in the state 7 court proceedings that Plaintiff is a sexually violent predator. 8 several of his claims, Plaintiff contends that various Defendants’ 9 alleged misconduct caused prejudice to Plaintiff in the SVP In 10 proceedings (see, e.g., Complaint, Ground Four, p. 9; Ground Five, p. 11 11; Ground Seven, p. 13; Ground Eight, pp. 13-14). 12 13 As the Court previously advised Plaintiff, in Heck v. Humphrey, 14 512 U.S. 477 (1994) (“Heck”), the Supreme Court held that, in order to 15 pursue a claim for damages arising out of an allegedly 16 unconstitutional conviction or imprisonment, or for other harm caused 17 by actions whose unlawfulness would render a conviction or sentence 18 invalid, a civil rights plaintiff must prove that the conviction or 19 sentence has been “reversed on direct appeal, expunged by executive 20 order, declared invalid by a state tribunal authorized to make such 21 determination, or called into question by a federal court’s issuance 22 of a writ of habeas corpus.” 23 inmate challenges an SVP determination in a suit for damages. 24 Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1140-41 (9th Cir. 2005), 25 cert. denied, 547 U.S. 1166 (2005). 26 Plaintiff asserts claims for damages implicating the validity of a 27 finding that Plaintiff is an SVP, Heck bars those claims. Id. at 486-487. 28 20 Heck applies where a See Therefore, to the extent 1 V. Alleged Deliberate Indifference to Medical Needs 2 3 Plaintiff asserts a number of claims that jail officials were 4 deliberately indifferent to Plaintiff’s alleged medical needs. The 5 Eighth Amendment’s prohibition against cruel and unusual punishment 6 does not apply to civil committees. 7 Fed. App’x 531, 535 (9th Cir. 2008); Pierce v. Multnomah County, 8 Oregon, 76 F.3d 1032, 1042 (9th Cir.), cert. denied, 519 U.S. 1006 9 (1996) (Eighth Amendment’s proscription against cruel and unusual See Rainwater v. Alarcon, 268 10 punishment applies only after conviction). The Due Process Clause of 11 the Fourteenth Amendment provides protection to SVPs that “is at least 12 coextensive with that applicable to prisoners under the Eighth 13 Amendment.” 14 internal quotations omitted). 15 Plaintiff in Shehee v. Baca, jail officials can violate the 16 constitution if they are “deliberately indifferent” to an inmate’s 17 serious medical needs. 18 (1994) (Eighth Amendment); Estelle v. Gamble, 429 U.S. 97, 104 (1976) 19 (same); Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1187 (9th 20 Cir. 2002), cert. denied, 537 U.S. 1106 (2003) (Due Process standard). Rainwater v. Alarcon, 268 Fed. App’x at 525 (citation and As the Court previously advised See Farmer v. Brennan, 511 U.S. 825, 834 21 22 To be liable for “deliberate indifference,” a jail official must 23 “both be aware of facts from which the inference could be drawn that a 24 substantial risk of serious harm exists, and he must also draw the 25 inference.” 26 failure to alleviate a significant risk that he should have perceived 27 but did not, while no cause for commendation, cannot . . . be 28 condemned as the infliction of punishment.” Farmer v. Brennan, 511 U.S. at 837. 21 “[A]n official’s Id. at 838. Plaintiff’s 1 allegations of negligence do not suffice. See Estelle v. Gamble, 429 2 U.S. at 105-06 (“Medical malpractice does not become a constitutional 3 violation merely because the victim is a prisoner”). 4 5 “A ‘serious’ medical need exists if the failure to treat a 6 prisoner’s condition could result in further significant injury or the 7 ‘unnecessary and wanton infliction of pain.’” 8 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX 9 Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997); see McGuckin v. Smith, 974 10 also Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc) 11 (examples of “serious medical needs” include “a medical condition that 12 significantly affects an individual’s daily activities,” and “the 13 existence of chronic and substantial pain”; citation and internal 14 quotations omitted). 15 used their feet to slide Plaintiff’s medication under the cell door 16 does not allege any deliberate indifference to a serious medical need 17 of Plaintiff. 18 medication, or that the medication was contaminated in a way to cause 19 serious injury to Plaintiff if ingested. Plaintiff’s allegation that unidentified persons Plaintiff fails to allege that he did not receive the 20 21 VI. Alleged Denial of Access to the Courts 22 23 As the Court previously advised Plaintiff in Shehee v. Baca, an 24 inmate claiming a violation of his right of access to the courts must 25 demonstrate that he has standing to bring the claim by showing the 26 defendant’s actions caused him to suffer “actual injury” in pursuit of 27 either a direct or collateral attack upon a conviction or sentence or 28 a challenge to the conditions of confinement. 22 Lewis v. Casey, 518 1 U.S. 343, 349 (1996); see also Johannes v. County of Los Angeles, 2011 2 WL 6149244, at *13 (C.D. Cal. Apr. 8, 2011) (civil detainees have 3 constitutional right of access to the courts; citations omitted). 4 Under Lewis v. Casey, an inmate must show that an action was “lost or 5 rejected,” or that presentation of a non-frivolous claim was or is 6 being prevented, as a result of the alleged denial of access. 7 356. 8 prisoner is “subject to a governmental institution that was not 9 organized or managed properly.” Id. at Actual injury is not demonstrated by the simple fact that a Id. at 350. Although Plaintiff 10 alleges that various Defendants or putative Defendants interfered with 11 Plaintiff’s ability to prosecute his various lawsuits, Plaintiff does 12 not allege how any asserted particular denial of access to the law 13 library or legal materials rendered Plaintiff unable to present any 14 particular non-frivolous claim, or caused any particular action to be 15 “lost or rejected.” 16 17 VII. Alleged Failure to Respond to Grievances 18 19 To the extent Plaintiff alleges Defendants or putative Defendants 20 failed to respond to grievances, the Complaint fails to state a claim 21 for relief. 22 prison grievances, see Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 23 2005), inmates have no “separate constitutional entitlement to a 24 specific prison grievance procedure.” 25 850, 860 (9th Cir. 2003), cert. denied, 541 U.S. 1063 (2004) (citation 26 omitted). 27 particular grievance does not violate the Constitution. 28 Alba, 932 F.2d 728, 729 (8th Cir. 1991); Morris v. Newland, 2007 WL While inmates may enjoy a First Amendment right to file See Ramirez v. Galaza, 334 F.3d The failure of prison officials to respond to or process a 23 See Flick v. 1 707525, at *7 (E.D. Cal. March 6, 2007), adopted, 2007 WL 987846 (E.D. 2 Cal. March 30, 2007) (“a failure to process a grievance does not state 3 a constitutional violation”) (citation omitted); Alonzo v. Squyres, 4 2002 WL 1880736, at *1 (N.D. Cal. Aug. 9, 2002) (“Although there 5 certainly is a right to petition the government for redress of 6 grievances (a First Amendment right), there is no right to a response 7 or any particular action.”) (citations omitted); see also Baltoski v. 8 Pretorius, 291 F. Supp. 2d 807, 811 (N.D. Ind. 2003) (“[t]he right to 9 petition the government for redress of grievances, however, does not 10 guarantee a favorable response, or indeed any response, from state 11 officials”). 12 13 VIII. Alleged Retaliation 14 15 Jail officials may not retaliate against detainees who exercise 16 their First Amendment rights. See Pratt v. Rowland, 65 F.3d 802, 806 17 (9th Cir. 1995); Bradley v. Hall, 64 F.3d 1276, 1281 (9th Cir. 1995); 18 Endsley v. Luna, 2009 WL 3806266, at *14 (C.D. Cal. Nov. 12, 2009), 19 aff’d, 473 Fed. App’x 750 (2012). 20 must allege that he was retaliated against for exercising his 21 constitutional rights and that the retaliatory action does not advance 22 legitimate goals of the institution, such as preserving institutional 23 order and discipline. 24 2003) (citations and internal quotations omitted). 25 sprinkles allegations of retaliation throughout the Complaint, in a 26 number of instances Plaintiff fails to link the alleged retaliation to 27 any particular act or omission of a particular Defendant or putative 28 Defendant. To allege retaliation, Plaintiff Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. Although Plaintiff Such confused and conclusory allegations of retaliation 24 1 are insufficient. See Wise v. Washington State Dep’t of Corrections, 2 244 Fed. App’x 106, 108 (9th Cir. 2007), cert. denied, 552 U.S. 1282 3 (2008) (prisoner’s conclusory allegations of retaliation, “without 4 supporting facts connecting the defendants to his litigation 5 activities,” insufficient). 6 7 IX. Alleged Race Discrimination 8 9 Inmates are protected under the Equal Protection Clause of the 10 Fourteenth Amendment from invidious discrimination based on race. 11 Wolff v. McDonnell, 418 U.S. 539, 556 (1974). 12 advised Plaintiff in Shehee v. Baca, to allege an equal protection 13 violation, Plaintiff must allege he was intentionally treated 14 differently from others similarly situated and that there was no 15 rational basis for the difference in treatment. 16 Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Barren v. Harrington, 17 152 F.3d 1193, 1194-95 (9th Cir. 1998), cert. denied, 525 U.S. 1154 18 (1999). 19 Plaintiff has failed to plead a cognizable race discrimination claim. 20 See Hamilton v. Adamik, 2007 WL 2782840, at *4 (N.D. Cal. Sept. 24, 21 2007) (prisoner’s conclusory and ambiguous allegations of race 22 discrimination insufficient). 23 /// 24 /// 25 /// 26 /// 27 X. As the Court previously See Village of The Complaint contains no such allegations. Plaintiff’s Address of Record 28 25 Therefore, 1 As previously indicated, as in Shehee v. Baca, Plaintiff lists 2 two different addresses of record: one at the Coalinga State Hospital 3 and one at the Twin Towers County Jail. 4 that Rule 41-6 of the Local Rules of Practice of the United States 5 District Court for the Central District of California requires a party 6 proceeding pro se to keep the Court and the opposing parties apprised 7 of such party’s current address and telephone number, if any. 8 Court may dismiss an action for failure to maintain a current address 9 of record. Plaintiff again is advised The See Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988). 10 Any First Amended Complaint should state Plaintiff’s current address 11 of record. 12 13 CONCLUSION AND ORDER 14 15 For all of the foregoing reasons, the Complaint is dismissed with 16 leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 17 2000) (en banc); 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). 18 still wishes to pursue this action, he is granted thirty (30) days 19 from the date of this Memorandum and Order within which to file a 20 First Amended Complaint. 21 complete in itself. 22 complaint. 23 Defendants being sued on each claim for relief, and must allege 24 clearly how each Defendant assertedly violated Plaintiff’s rights. 25 /// 26 /// 27 Plaintiff may not add Defendants without leave of court. 28 Civ. P. 21. If Plaintiff The First Amended Complaint shall be It shall not refer in any manner to any prior Any First Amended Complaint must identify clearly the See Fed. R. Failure to file a timely First Amended Complaint may 26 1 result in the dismissal of this action. 2 3 4 DATED: December 26, 2012. 5 6 7 _________________________________ PERCY ANDERSON UNITED STATES DISTRICT JUDGE 8 9 10 Presented this 20th day of 11 December, 2012, by: 12 13 14 _____________/S/__________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27

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