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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DANIEL MORENO,

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Plaintiff,

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vs.

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VENTURA COUNTY, et al.,

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Defendants.

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CASE NO. CV 14-4586 SJO (RZ)

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MEMORANDUM AND ORDER
DISMISSING COMPLAINT WITH
LEAVE TO AMEND

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The pro se and in forma pauperis plaintiff, Daniel Moreno, is housed in the

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Ventura County jail. (It is unclear whether he is serving a criminal sentence, is a pretrial

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detainee, or both.) In part because he has not followed the instructions on the CV-66 form

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Civil Rights Complaint that commenced this action, many aspects of that complaint are

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difficult to understand. Due to the following pleading flaws, the Court will dismiss the

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complaint with leave to amend.

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I.

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SUMMARY OF ALLEGATIONS

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Plaintiff begins his stream-of-consciousness account in the wrong part of the

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form complaint, namely in the section seeking the substance of “any other lawsuits” he has

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brought. (He does check a box indicating that he has not brought any other federal lawsuits

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while a prisoner.) On May 6, 2014, he states, he “was having medication issues,”

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apparently in reference to one or more mental health conditions. Defendant Gallagher, a

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jail deputy, came into Plaintiff’s cell. Plaintiff first states that Gallagher arrived “without

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saying why,” but immediately thereafter, Plaintiff alleges that Gallagher said “he

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[Gallagher] has a blue kite [written communication or authorization] if I still want to see

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the psych doctor.” Plaintiff continues as follows:

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He had this blue kite in his left hand well inside the cell he [sic] brings it

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down fast. So the first thing that came to mind was to defend myself so I

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picked him up and thr[ew] him on the floor. I did not swing at him. And he

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was doing all the punch[ing].

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Comp. at 1. In the ensuing melee, Plaintiff alleges, his toe was stepped upon and injured,

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his nose broken and his handcuffs applied so tightly that they caused numbness in his left

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pinky.

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Plaintiff was transported to a hospital. He believed that hospital personnel

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would treat his toe, pinky finger and nose, but “[a]ll they did was check my blood.” Comp.

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at 1. Four pages later, in the section of the form complaint calling for Plaintiff to identify

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his first legal claim, Plaintiff appears to continue his factual allegations, nebulously

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directed at “the hospital.” “They didn’t check my injuries . . . . They didn’t tend to my

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mental issue as the[y’re] suppose[d] to.” Comp. at 5. Plaintiff does not specify his “mental

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issue” or what medication(s) he believes are needed for its treatment.

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Plaintiff sues five defendants. In the section of the form complaint seeking

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“how [each defendant] was acting under color of law,” Plaintiff instead supplies a mix of

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factual and legal statements that are unrelated to the “color of law” issue, as the following

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roster of the defendants and “color of law” reasons shows:

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1.

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Deputy Gallagher, in his individual capacity. “They should do a background check
of each inmate with mental issues.”
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the hospital, they should have checked them over.”

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Ventura County Sheriff’s Office. “While I suffered these injuries since I was at

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A male deputy, Heershey [sic], whom Plaintiff does not appear to mention
anywhere (else) in the complaint, in his individual capacity. Plaintiff explains:

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He found out that me and Gallagher got into it. He told me if I

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were from a gang called me [sic] a River Rat. So I started to laugh.

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And then he tell me why won’t I start something with him and his

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partner. Then I said I don’t know what you[’re] talking about. He say

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yeah you do. And to let you know I’ll fuck you up Deputy Heershey

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had stated to me.

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Comp. at 3.

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individual capacity. “Not checking in with an inmate with mental issues.”

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Dianne, a jail “psych doctor” whose surname Plaintiff does not supply, in her

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Jen Loral, a jail “sick call doctor,” in her individual capacity. “When asked for

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hemorrhoid cream she want to see & touch the area & same goes for my jock itch.

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It’s all on file.”

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II.

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SCREENING OF IN FORMA PAUPERIS COMPLAINTS

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The Court must screen all complaints, including Plaintiff’s, brought in forma

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pauperis. See Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam); 28 U.S.C.

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§ 1915(e)(2) (screening of in forma pauperis actions generally). The law requires this

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Court to“dismiss the case if at any time it determines that . . . the action . . . (i) is frivolous

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or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

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monetary relief from a defendant who is immune from such relief.”

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§ 1915(e)(2)(B).
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III.

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CLAIMS MUST BE CLEARLY AND SEPARATELY STATED –

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AND MUST CITE A FEDERAL LEGAL BASIS

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Plaintiff neither makes clear what legal claim(s) he is asserting nor indicates

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what federal law supplies the basis for his claim(s). Although he is aggrieved, for example,

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that he did not receive different and additional care at the hospital, he asserts nothing that

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the Court recognizes as a legal claim, let alone a federal one, such as “deliberate

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Indifference to medical needs in violation of the Eighth or Fourth Amendment.” Plaintiff

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must state his claims separately, each identifying a discrete alleged violation of the

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Constitution or other law. FED. R. CIV. P. 10(b) (“Each claim founded upon a separate

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transaction or occurrence . . . shall be stated in a separate count . . . whenever a separation

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facilitates the clear presentation of the matters set forth.”). As the Ninth Circuit has

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explained, separating the complaint into discrete, readily-identifiable claims serves the

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purpose of clarity:

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Experience teaches that, unless cases are pleaded clearly and precisely, issues

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are not joined, discovery is not controlled, the trial court’s docket becomes

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unmanageable, the litigants suffer and society loses confidence in the court’s

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ability to administer justice.

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Bautista v. Los Angeles County, 216 F.3d 837, 840-41 (9th Cir. 2000).

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Should Plaintiff choose to amend his complaint, then he must assert

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separately-captioned claims (Claim 1, Claim 2, etc.), instead of either (1) combining a

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narrative about all of the alleged wrongs under a single “Claim 1” heading, and/or

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(2) sprinkling claim-like language throughout unrelated portions of the complaint form,

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such as the section devoted to identifying the defendants and how they were acting under

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color of law. In each claim, Plaintiff shall specify –

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subjected to Cruel and Unusual Punishment under the Eighth Amendment;

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the specific events and other facts that give rise to, and that make out a prima facie
case of, that specific claim; and

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the specific federal law or tort provision allegedly violated, e.g., the right not to be

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which of the numerous defendants Plaintiff targets in that specific claim. Plaintiff

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may not simply refer to “Defendants” within each claim, unless he truly blames

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every single one of them in that specific claim.

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It will assist Plaintiff greatly, as well as the Court and the defendants, if he carefully

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follows the instructions printed on the form CV-66 Civil Rights Complaint.

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IV.

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CURRENT ALLEGATIONS DO NOT SUPPORT VALID

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CIVIL-RIGHTS CLAIMS AGAINST MEDICAL DEFENDANTS

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As noted immediately above, Plaintiff may wish to assert a claim based on a

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denial of medical attention after his altercation with Gallagher. He also may wish to assert

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a claim based on the alleged shortcomings or misconduct of two jail medical personnel,

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namely “Dianne” and Jen Loral. But Plaintiff’s current allegations fall short of supporting

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a valid claim against any medical defendant.

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A.

Deliberate Medical Indifference

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First, Plaintiff currently fails to state a valid federal civil rights claim for what

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is called “deliberate indifference” to serious medical needs. It is insufficient for him to

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allege, as he thus far has done, only that “the hospital,” “Dianne” or Jen Loral failed to act

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as competent medical professions should. Those allegations support a claim of mere

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negligence. To state a federal (as opposed to state tort) claim, Plaintiff must competently

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allege that one or more persons (1) were subjectively aware of his serious medical needs

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and (2) responded in a deliberately indifferent manner. See Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir.2006); Toguchi v. Chung, 391 F.3d 1051, 1057-58 (9th Cir. 2004) (mere
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negligence in diagnosing or treating a prisoner’s medical condition does not constitute

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deliberate indifference); see also Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986)

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(same standard applies to pretrial detainees). Of course, Plaintiff may not simply recite

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such deliberate-indifference allegations in any amended complaint. He must have, and

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must supply, a sound factual basis for them.

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Second, Plaintiff blames “the hospital” for shortcomings in his medical care

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there, but he does not sue any individual hospital employees. (He also does not sue “the

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hospital” itself, but, as discussed in section IV below, he cannot validly do so without

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competent “Monell allegations” that the hospital is a government entity; that (and how) its

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policies or entrenched practices violate the Constitution; and that his injuries resulted from

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those policies.) If Plaintiff wishes to sue such individuals but does not know their names,

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then he may sue them as John or Jane Does, although he must describe such Does

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adequately to permit their identification, e.g., “Jane Doe #1, a white female, was the nurse

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on duty in my section of hospital at 11:00 p.m. on May 6, 2014.” He also must allege, as

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noted immediately above, (1) how such individuals subjectively knew that Plaintiff had

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serious medical needs and (2) how their actions or omissions, after they realized Plaintiff’s

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needs, demonstrated their deliberate indifference.

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B.

Sexual Harassment

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Plaintiff appears to imply that Jen Loral acted improperly in insisting upon a

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physical examination, including her touching of Plaintiff’s private parts, as a condition of

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Plaintiff’s receiving requested medications for jock itch and hemorrhoids. But he currently

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states no valid claim of sexual harassment, for at least three reasons. First, he does not

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allege that he actually had the noted ailments. He alleges only that he asked for creams

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used to treat them. Comp. at 4. Second, he alleges that Loral “want[ed] to see and touch”

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Plaintiff’s affected areas after he asked for topical creams. Id. (emphasis added). He does

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not allege that Loral did, in fact, see or touched him there. Third and perhaps most

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fundamentally, he alleges no facts from which one reasonably could conclude that Loral
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had no bona fide medical need to inspect Plaintiff manually, and thus that her insisted-upon

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touching was gratuitous and harassing. See generally Onelas v. Giurbino, 358 F.Supp.2d

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955, 963 (S.D. Cal. 2005) (reviewing authorities outlining scope of claim of sexual

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harassment by prison personnel). Perhaps by stating “[i]t’s all on file,” Plaintiff implies

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that Loral already constructively possessed all the medical information that she legitimately

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needed to approve the requested creams, without need for any new examination. Oblique

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implications will not suffice. Plaintiff must allege such matters directly and expressly,

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perhaps specifying further what information is “on file.”

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V.

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ABSENCE OF MONELL ALLEGATIONS
One defendant is the Ventura County Sheriff’s Department.

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Such a

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governmental entity can be liable under § 1983 only where its official policies or unofficial

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but entrenched practices are the moving force behind a constitutional violation that injured

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the plaintiff. City of Canton v. Harris, 489 U.S. 378, 389 (1989). Thus, a county may not

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be held liable for the acts of its officers unless (1) the allegedly unconstitutional acts

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implement or execute an official government policy, or (2) the constitutional deprivation

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resulted from a widespread governmental custom. Redman v. County of San Diego, 942

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F.2d 1435, 1443-44 (9th Cir. 1991). The unconstitutional acts of a government official,

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standing alone, cannot lead to that government’s liability. Monell v. Dep't of Social

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Services, 436 U.S. 658, 692-95 (1978).

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Here, the complaint contains no “Monell allegations” that Plaintiff’s injuries

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resulted from an official policy or established government custom of the County of Ventura

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or its Sheriff’s Department. Nor does Plaintiff allege just what the policy or practice is.

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He must correct this shortcoming if he targets any public entity (including any public

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employee sued in an official capacity) in his amended complaint.

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VI.

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HEERSHEY’S TAUNTS ARE NOT A CIVIL RIGHTS VIOLATION

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A guard’s verbal abuse of or threat to a detainee – even if the threatened

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conduct clearly would violate the Constitution – is not sufficient to state a constitutional

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deprivation, absent injury. See McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001)

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(threat to spray inmate with mace), following Collins v. Cundy, 603 F.2d 825, 827 (10th

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Cir. 1979) (threat to hang prisoner who requested mailing of legal correspondence);

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Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) (verbal abuse based on religious and

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ethnic background); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987)

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(“excessively vulgar language”), following Collins, supra. Deputy Heershey allegedly

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challenged Plaintiff to commence a fight with Heershey and Heershey’s partner. Such

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statements, although distressingly unprofessional, fall far short of the hanging threat in

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Collins, supra – and even that threat was held to be non-actionable. Plaintiff must omit

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Heershey from any amended complaint unless he can competently allege that Heershey

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personally participated in violating Plaintiff’s federal civil rights.

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VII.

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CONCLUSION
Based on the foregoing, the complaint hereby is DISMISSED, and leave to

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amend is granted. More specifically, Plaintiff has three options:

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(1)

Plaintiff may pursue this action further by filing an original and one copy of a

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pleading captioned as his First Amended Complaint (1AC), bearing the current case

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number, within 30 days of the filing date of this Order. To withstand another

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dismissal, the 1AC must correct the deficiencies identified in this Order and must

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comply with the Federal Rules of Civil Procedure and this Court’s Local Rules. The

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1AC must be complete in itself and must not refer to any prior version of the

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complaint.

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(2)

Plaintiff may file a “Notice of Intent Not to Amend Complaint” within 30 days

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of the filing date of this Order. If Plaintiff timely files such a Notice, then the

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undersigned will recommend to the assigned District Judge that this action be

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dismissed, freeing Plaintiff to appeal the dismissal on the grounds cited above. See

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Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-66 (9th Cir. 2004).

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(3)

Plaintiff may do nothing in response to this Order. If Plaintiff does not file a

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document pursuant to either option 1 or 2 above within the 30-day deadline, then the

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Court shall deem him to have consented to dismissal of this action for failure to

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prosecute and for failure to comply with this Order. See id.

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The Court cautions Plaintiff that if he fails to file a timely amended

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complaint or otherwise fails to comply substantially with the terms of this Order, then

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this action may be dismissed.

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IT IS SO ORDERED.

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DATED: July 7, 2014

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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