Daniel Moreno v. Ventura County et al

Filing 5

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Ralph Zarefsky. Plaintiff may file a First Amended Complaint within 30 days. (See document for details). (ib)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DANIEL MORENO, 12 Plaintiff, 13 vs. 14 VENTURA COUNTY, et al., 15 Defendants. 16 CASE NO. CV 14-4586 SJO (RZ) ) ) ) ) ) ) ) ) ) ) MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 17 The pro se and in forma pauperis plaintiff, Daniel Moreno, is housed in the 18 Ventura County jail. (It is unclear whether he is serving a criminal sentence, is a pretrial 19 detainee, or both.) In part because he has not followed the instructions on the CV-66 form 20 Civil Rights Complaint that commenced this action, many aspects of that complaint are 21 difficult to understand. Due to the following pleading flaws, the Court will dismiss the 22 complaint with leave to amend. 23 24 I. 25 SUMMARY OF ALLEGATIONS 26 Plaintiff begins his stream-of-consciousness account in the wrong part of the 27 form complaint, namely in the section seeking the substance of “any other lawsuits” he has 28 brought. (He does check a box indicating that he has not brought any other federal lawsuits 1 while a prisoner.) On May 6, 2014, he states, he “was having medication issues,” 2 apparently in reference to one or more mental health conditions. Defendant Gallagher, a 3 jail deputy, came into Plaintiff’s cell. Plaintiff first states that Gallagher arrived “without 4 saying why,” but immediately thereafter, Plaintiff alleges that Gallagher said “he 5 [Gallagher] has a blue kite [written communication or authorization] if I still want to see 6 the psych doctor.” Plaintiff continues as follows: 7 8 He had this blue kite in his left hand well inside the cell he [sic] brings it 9 down fast. So the first thing that came to mind was to defend myself so I 10 picked him up and thr[ew] him on the floor. I did not swing at him. And he 11 was doing all the punch[ing]. 12 13 Comp. at 1. In the ensuing melee, Plaintiff alleges, his toe was stepped upon and injured, 14 his nose broken and his handcuffs applied so tightly that they caused numbness in his left 15 pinky. 16 Plaintiff was transported to a hospital. He believed that hospital personnel 17 would treat his toe, pinky finger and nose, but “[a]ll they did was check my blood.” Comp. 18 at 1. Four pages later, in the section of the form complaint calling for Plaintiff to identify 19 his first legal claim, Plaintiff appears to continue his factual allegations, nebulously 20 directed at “the hospital.” “They didn’t check my injuries . . . . They didn’t tend to my 21 mental issue as the[y’re] suppose[d] to.” Comp. at 5. Plaintiff does not specify his “mental 22 issue” or what medication(s) he believes are needed for its treatment. 23 Plaintiff sues five defendants. In the section of the form complaint seeking 24 “how [each defendant] was acting under color of law,” Plaintiff instead supplies a mix of 25 factual and legal statements that are unrelated to the “color of law” issue, as the following 26 roster of the defendants and “color of law” reasons shows: 27 1. 28 Deputy Gallagher, in his individual capacity. “They should do a background check of each inmate with mental issues.” -2- 1 2. the hospital, they should have checked them over.” 2 3 Ventura County Sheriff’s Office. “While I suffered these injuries since I was at 3. A male deputy, Heershey [sic], whom Plaintiff does not appear to mention anywhere (else) in the complaint, in his individual capacity. Plaintiff explains: 4 5 6 He found out that me and Gallagher got into it. He told me if I 7 were from a gang called me [sic] a River Rat. So I started to laugh. 8 And then he tell me why won’t I start something with him and his 9 partner. Then I said I don’t know what you[’re] talking about. He say 10 yeah you do. And to let you know I’ll fuck you up Deputy Heershey 11 had stated to me. 12 Comp. at 3. 13 14 4. individual capacity. “Not checking in with an inmate with mental issues.” 15 16 Dianne, a jail “psych doctor” whose surname Plaintiff does not supply, in her 5. Jen Loral, a jail “sick call doctor,” in her individual capacity. “When asked for 17 hemorrhoid cream she want to see & touch the area & same goes for my jock itch. 18 It’s all on file.” 19 20 II. 21 SCREENING OF IN FORMA PAUPERIS COMPLAINTS 22 The Court must screen all complaints, including Plaintiff’s, brought in forma 23 pauperis. See Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam); 28 U.S.C. 24 § 1915(e)(2) (screening of in forma pauperis actions generally). The law requires this 25 Court to“dismiss the case if at any time it determines that . . . the action . . . (i) is frivolous 26 or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks 27 monetary relief from a defendant who is immune from such relief.” 28 § 1915(e)(2)(B). -3- 28 U.S.C. 1 III. 2 CLAIMS MUST BE CLEARLY AND SEPARATELY STATED – 3 AND MUST CITE A FEDERAL LEGAL BASIS 4 Plaintiff neither makes clear what legal claim(s) he is asserting nor indicates 5 what federal law supplies the basis for his claim(s). Although he is aggrieved, for example, 6 that he did not receive different and additional care at the hospital, he asserts nothing that 7 the Court recognizes as a legal claim, let alone a federal one, such as “deliberate 8 Indifference to medical needs in violation of the Eighth or Fourth Amendment.” Plaintiff 9 must state his claims separately, each identifying a discrete alleged violation of the 10 Constitution or other law. FED. R. CIV. P. 10(b) (“Each claim founded upon a separate 11 transaction or occurrence . . . shall be stated in a separate count . . . whenever a separation 12 facilitates the clear presentation of the matters set forth.”). As the Ninth Circuit has 13 explained, separating the complaint into discrete, readily-identifiable claims serves the 14 purpose of clarity: 15 16 Experience teaches that, unless cases are pleaded clearly and precisely, issues 17 are not joined, discovery is not controlled, the trial court’s docket becomes 18 unmanageable, the litigants suffer and society loses confidence in the court’s 19 ability to administer justice. 20 21 Bautista v. Los Angeles County, 216 F.3d 837, 840-41 (9th Cir. 2000). 22 Should Plaintiff choose to amend his complaint, then he must assert 23 separately-captioned claims (Claim 1, Claim 2, etc.), instead of either (1) combining a 24 narrative about all of the alleged wrongs under a single “Claim 1” heading, and/or 25 (2) sprinkling claim-like language throughout unrelated portions of the complaint form, 26 such as the section devoted to identifying the defendants and how they were acting under 27 color of law. In each claim, Plaintiff shall specify – 28 -4- 1 (1) subjected to Cruel and Unusual Punishment under the Eighth Amendment; 2 3 (2) the specific events and other facts that give rise to, and that make out a prima facie case of, that specific claim; and 4 5 the specific federal law or tort provision allegedly violated, e.g., the right not to be (3) which of the numerous defendants Plaintiff targets in that specific claim. Plaintiff 6 may not simply refer to “Defendants” within each claim, unless he truly blames 7 every single one of them in that specific claim. 8 It will assist Plaintiff greatly, as well as the Court and the defendants, if he carefully 9 follows the instructions printed on the form CV-66 Civil Rights Complaint. 10 11 IV. 12 CURRENT ALLEGATIONS DO NOT SUPPORT VALID 13 CIVIL-RIGHTS CLAIMS AGAINST MEDICAL DEFENDANTS 14 As noted immediately above, Plaintiff may wish to assert a claim based on a 15 denial of medical attention after his altercation with Gallagher. He also may wish to assert 16 a claim based on the alleged shortcomings or misconduct of two jail medical personnel, 17 namely “Dianne” and Jen Loral. But Plaintiff’s current allegations fall short of supporting 18 a valid claim against any medical defendant. 19 20 A. Deliberate Medical Indifference 21 First, Plaintiff currently fails to state a valid federal civil rights claim for what 22 is called “deliberate indifference” to serious medical needs. It is insufficient for him to 23 allege, as he thus far has done, only that “the hospital,” “Dianne” or Jen Loral failed to act 24 as competent medical professions should. Those allegations support a claim of mere 25 negligence. To state a federal (as opposed to state tort) claim, Plaintiff must competently 26 allege that one or more persons (1) were subjectively aware of his serious medical needs 27 and (2) responded in a deliberately indifferent manner. See Jett v. Penner, 439 F.3d 1091, 28 1096 (9th Cir.2006); Toguchi v. Chung, 391 F.3d 1051, 1057-58 (9th Cir. 2004) (mere -5- 1 negligence in diagnosing or treating a prisoner’s medical condition does not constitute 2 deliberate indifference); see also Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986) 3 (same standard applies to pretrial detainees). Of course, Plaintiff may not simply recite 4 such deliberate-indifference allegations in any amended complaint. He must have, and 5 must supply, a sound factual basis for them. 6 Second, Plaintiff blames “the hospital” for shortcomings in his medical care 7 there, but he does not sue any individual hospital employees. (He also does not sue “the 8 hospital” itself, but, as discussed in section IV below, he cannot validly do so without 9 competent “Monell allegations” that the hospital is a government entity; that (and how) its 10 policies or entrenched practices violate the Constitution; and that his injuries resulted from 11 those policies.) If Plaintiff wishes to sue such individuals but does not know their names, 12 then he may sue them as John or Jane Does, although he must describe such Does 13 adequately to permit their identification, e.g., “Jane Doe #1, a white female, was the nurse 14 on duty in my section of hospital at 11:00 p.m. on May 6, 2014.” He also must allege, as 15 noted immediately above, (1) how such individuals subjectively knew that Plaintiff had 16 serious medical needs and (2) how their actions or omissions, after they realized Plaintiff’s 17 needs, demonstrated their deliberate indifference. 18 19 B. Sexual Harassment 20 Plaintiff appears to imply that Jen Loral acted improperly in insisting upon a 21 physical examination, including her touching of Plaintiff’s private parts, as a condition of 22 Plaintiff’s receiving requested medications for jock itch and hemorrhoids. But he currently 23 states no valid claim of sexual harassment, for at least three reasons. First, he does not 24 allege that he actually had the noted ailments. He alleges only that he asked for creams 25 used to treat them. Comp. at 4. Second, he alleges that Loral “want[ed] to see and touch” 26 Plaintiff’s affected areas after he asked for topical creams. Id. (emphasis added). He does 27 not allege that Loral did, in fact, see or touched him there. Third and perhaps most 28 fundamentally, he alleges no facts from which one reasonably could conclude that Loral -6- 1 had no bona fide medical need to inspect Plaintiff manually, and thus that her insisted-upon 2 touching was gratuitous and harassing. See generally Onelas v. Giurbino, 358 F.Supp.2d 3 955, 963 (S.D. Cal. 2005) (reviewing authorities outlining scope of claim of sexual 4 harassment by prison personnel). Perhaps by stating “[i]t’s all on file,” Plaintiff implies 5 that Loral already constructively possessed all the medical information that she legitimately 6 needed to approve the requested creams, without need for any new examination. Oblique 7 implications will not suffice. Plaintiff must allege such matters directly and expressly, 8 perhaps specifying further what information is “on file.” 9 10 V. 11 ABSENCE OF MONELL ALLEGATIONS One defendant is the Ventura County Sheriff’s Department. 12 Such a 13 governmental entity can be liable under § 1983 only where its official policies or unofficial 14 but entrenched practices are the moving force behind a constitutional violation that injured 15 the plaintiff. City of Canton v. Harris, 489 U.S. 378, 389 (1989). Thus, a county may not 16 be held liable for the acts of its officers unless (1) the allegedly unconstitutional acts 17 implement or execute an official government policy, or (2) the constitutional deprivation 18 resulted from a widespread governmental custom. Redman v. County of San Diego, 942 19 F.2d 1435, 1443-44 (9th Cir. 1991). The unconstitutional acts of a government official, 20 standing alone, cannot lead to that government’s liability. Monell v. Dep't of Social 21 Services, 436 U.S. 658, 692-95 (1978). 22 Here, the complaint contains no “Monell allegations” that Plaintiff’s injuries 23 resulted from an official policy or established government custom of the County of Ventura 24 or its Sheriff’s Department. Nor does Plaintiff allege just what the policy or practice is. 25 He must correct this shortcoming if he targets any public entity (including any public 26 employee sued in an official capacity) in his amended complaint. 27 /// 28 /// -7- 1 VI. 2 HEERSHEY’S TAUNTS ARE NOT A CIVIL RIGHTS VIOLATION 3 A guard’s verbal abuse of or threat to a detainee – even if the threatened 4 conduct clearly would violate the Constitution – is not sufficient to state a constitutional 5 deprivation, absent injury. See McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001) 6 (threat to spray inmate with mace), following Collins v. Cundy, 603 F.2d 825, 827 (10th 7 Cir. 1979) (threat to hang prisoner who requested mailing of legal correspondence); 8 Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) (verbal abuse based on religious and 9 ethnic background); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) 10 (“excessively vulgar language”), following Collins, supra. Deputy Heershey allegedly 11 challenged Plaintiff to commence a fight with Heershey and Heershey’s partner. Such 12 statements, although distressingly unprofessional, fall far short of the hanging threat in 13 Collins, supra – and even that threat was held to be non-actionable. Plaintiff must omit 14 Heershey from any amended complaint unless he can competently allege that Heershey 15 personally participated in violating Plaintiff’s federal civil rights. 16 17 VII. 18 CONCLUSION Based on the foregoing, the complaint hereby is DISMISSED, and leave to 19 20 amend is granted. More specifically, Plaintiff has three options: 21 (1) Plaintiff may pursue this action further by filing an original and one copy of a 22 pleading captioned as his First Amended Complaint (1AC), bearing the current case 23 number, within 30 days of the filing date of this Order. To withstand another 24 dismissal, the 1AC must correct the deficiencies identified in this Order and must 25 comply with the Federal Rules of Civil Procedure and this Court’s Local Rules. The 26 1AC must be complete in itself and must not refer to any prior version of the 27 complaint. 28 -8- 1 (2) Plaintiff may file a “Notice of Intent Not to Amend Complaint” within 30 days 2 of the filing date of this Order. If Plaintiff timely files such a Notice, then the 3 undersigned will recommend to the assigned District Judge that this action be 4 dismissed, freeing Plaintiff to appeal the dismissal on the grounds cited above. See 5 Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-66 (9th Cir. 2004). 6 (3) Plaintiff may do nothing in response to this Order. If Plaintiff does not file a 7 document pursuant to either option 1 or 2 above within the 30-day deadline, then the 8 Court shall deem him to have consented to dismissal of this action for failure to 9 prosecute and for failure to comply with this Order. See id. 10 The Court cautions Plaintiff that if he fails to file a timely amended 11 complaint or otherwise fails to comply substantially with the terms of this Order, then 12 this action may be dismissed. 13 IT IS SO ORDERED. 14 15 DATED: July 7, 2014 16 17 18 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 -9-

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