Joseph Christo Gomez v. Cruz et al

Filing 5

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Judge John F. Walter, re Complaint (Prisoner Civil Rights), 1 . The Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this 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 or to any other document. See Order for details. (dml)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOSEPH CHRISTO GOMEZ,

) NO. CV 16-7430-JFW(E)
)
Plaintiff,
)
)
v.
) ORDER DISMISSING COMPLAINT WITH
)
CRUZ, et al.,
) LEAVE TO AMEND
)
Defendants.
)
______________________________)

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For the following reasons, the Complaint is dismissed with leave
to amend.

See 28 U.S.C. § 1915(e)(2)(B).

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BACKGROUND

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Plaintiff, an inmate at the Los Angeles County Jail, filed this

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civil rights action on October 4, 2016, pursuant to 42 U.S.C. section

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1983.

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(2) Legal Unit Deputy Cruz; (2) Sergeant Moreno; and (4) Deputies

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Lascurain and Julliff.

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official capacities only.

Defendants are: (1) Los Angeles County Sheriff Jim McDonnell;

Plaintiff sues all Defendants in their

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Plaintiff alleges that, in September of 2015, Defendants Cruz and

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Julliff assertedly failed to provide legal forms Plaintiff requested

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(Complaint, p. 5).

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removed without good cause” (id.).

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allegedly has failed to provide legal forms (id).

Plaintiff’s “pro per” status allegedly “was
For a year, Los Angeles County

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In June of 2016, Defendant Moreno and another sergeant allegedly

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had Plaintiff arrested, purportedly in retaliation for “requesting

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info to obtain a copy of [Plaintiff’s] legal rights & request safety

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for fear of [Plaintiff’s] life” (id.).

Moreno allegedly “disciplined

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[Plaintiff] in retaliation” (id., p. 3).

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Defendant McDonnell allegedly has not responded to Plaintiff’s letter

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of complaint requesting action (id., p. 5).

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allegedly failed multiple times to file forms, apparently grievance

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forms (id.).

Since June of 2016,

Defendant Lascurain

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Plaintiff seeks an order requiring the Los Angeles Sheriff’s

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Department “to look into policies and procedures that continually

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violate prisoner[’]s rights,” an order requiring jail officials to

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provide Plaintiff access to the law library, “relief from

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incarceration for illegal confinement” due to his alleged inability to

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file a notice of appeal or a habeas corpus petition, an order

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permitting Plaintiff “to file late or untimely responses to

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[Plaintiff’s] conviction and sentencing,” and damages (id., p. 6).

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DISCUSSION

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The Court must construe Plaintiff’s official capacity claims

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against the individual Defendants as claims against the County of Los

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Angeles.

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Plaintiff may not sue the County on a theory of respondeat superior,

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which is not a theory of liability cognizable under 42 U.S.C. section

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1983.

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Iqbal, 556 U.S. 662, 676 (2009); Polk County v. Dodson, 454 U.S. 312,

See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).

See Connick v. Thompson, 563 U.S. 51, 60 (2011); Ashcroft v.

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325 (1981).

The County may be held liable only if the alleged

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wrongdoing was committed pursuant to a municipal policy, custom or

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usage.

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Brown, 520 U.S. 397, 402-04 (1997); Monell v. New York City Department

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of Social Services, 436 U.S. 658, 691 (1978).

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do not suffice to plead a municipal liability claim.

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Iqbal, 556 U.S. at 678 (plaintiff must allege more than an “unadorned,

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the-defendant-unlawfully-harmed-me accusation”; a pleading that

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“offers labels and conclusions or a formulaic recitation of the

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elements of a cause of action will not do”); Starr v. Baca, 652 F.3d

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1202, 1216 (9th Cir. 2011) (en banc), cert. denied, 132 S. Ct. 2101

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(2012) (“allegations in a complaint or counterclaim may not simply

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recite the elements of a cause of action, but must contain sufficient

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allegations of underlying facts to give fair notice and to enable the

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opposing party to defend itself effectively”); see also AE ex rel.

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Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012)

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(pleading standards set forth in Starr v. Baca govern municipal

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liability claims).

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plead a cognizable municipal liability claim.

See Board of County Commissioners of Bryan County, Oklahoma v.

Conclusory allegations
See Ashcroft v.

The Complaint fails to allege facts sufficient to

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Plaintiff may not sue any supervisor on a theory that the

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supervisor is liable for the acts of his or her subordinates.

See

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Ashcroft v. Iqbal, 556 U.S. at 676; Polk County v. Dodson, 454 U.S. at

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325.

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is not “accountable for the misdeeds of [his or her] agents.”

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Ashcroft v. Iqbal, 556 U.S. at 677.

Mere knowledge of a subordinate’s

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alleged misconduct is insufficient.

Id.

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liable in his or her individual capacity “for [his or her] own

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culpable action or inaction in the training, supervision or control of

A supervisor “is only liable for his or her own misconduct,” and

A supervisor may be held

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[his or her] subordinates.”

Watkins v. City of Oakland, Cal., 145

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F.3d 1087, 1093 (9th Cir. 1998) (quoting Larez v. City of Los Angeles,

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946 F.2d 630, 646 (9th Cir. 1991)).

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individual Defendant, Plaintiff must allege facts showing that the

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individual Defendant participated in or directed the alleged

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violation, or knew of the violation and failed to act to prevent it.

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See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert.

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denied, 525 U.S. 1154 (1999) (“A plaintiff must allege facts, not

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simply conclusions, that show that an individual was personally

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involved in the deprivation of his civil rights.”); Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989).

To state a claim against any

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Plaintiff may not bring a civil rights action to challenge his

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conviction or sentence and obtain release from custody.

Habeas corpus

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is the exclusive remedy for a person in state custody who challenges

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the fact or duration of custody and seeks a speedier release

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therefrom.

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Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

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Any claims for damages arising out of an allegedly wrongful

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conviction or sentence are barred by Heck v. Humphrey, 512 U.S. 477

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(1994) (“Heck”).

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in order to pursue a claim for damages arising out of an allegedly

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unconstitutional conviction or imprisonment, or for other harm caused

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by actions whose unlawfulness would render a conviction or sentence

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invalid, a civil rights plaintiff must prove that the conviction or

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sentence has been “reversed on direct appeal, expunged by executive

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order, declared invalid by a state tribunal authorized to make such

In Heck, the United States Supreme Court held that,

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determination, or called into question by a federal court’s issuance

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of a writ of habeas corpus.”

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damages bearing that relationship to a conviction or sentence that has

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not been so invalidated is not cognizable under § 1983.”

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Plaintiff has not alleged that his conviction or sentence has been so

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invalidated.

Heck, 512 U.S. at 486-87.

“A claim for

Id. at 487.

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Correctional officials may not retaliate against inmates who

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exercise their First Amendment rights.

See Rhodes v. Robinson, 408

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F.3d 559, 567-68 (9th Cir. 2005); Hines v. Gomez, 108 F.3d 265, 269

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(9th Cir. 1997), cert. denied, 524 U.S. 936 (1998) (prisoners may base

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retaliation claims “on harms that would not raise due process

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concerns”).

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Amendment retaliation entails five basic elements: (1) An assertion

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that a state actor took some adverse action against an inmate

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(2) because of (3) that prisoner’s protected conduct, and that such

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action (4) chilled the inmate’s exercise of his First Amendment

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rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.”

“Within the prison context, a viable claim of First

Rhodes v. Robinson, 408 F.3d at 567-68 (citations
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and footnote omitted).

Plaintiff’s confused and conclusory

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allegations of alleged retaliation are insufficient.

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Owens, 577 Fed. App’x 664 (9th Cir. 2014); see generally Ashcroft v.

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Iqbal, 556 U.S. at 678.

See Guillen v.

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To the extent Plaintiff alleges that any Defendant interfered

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with Plaintiff’s ability to submit inmate grievances, such allegations

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are insufficient to state a federal claim.

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constitutional entitlement to a specified prison grievance procedure.”

“[I]nmates lack a separate

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Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), cert. denied,

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541 U.S. 1063 (2004) (rejecting claim that prison officials “added

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things” to plaintiff’s grievance to mask procedural errors allegedly

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committed at challenged disciplinary hearing); see also Mann v. Adams,

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855 F.2d 639, 640 (9th Cir.), cert. denied, 488 U.S. 898 (1988).

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Prison officials’ alleged violations of grievance procedures do not

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give rise to a federal constitutional claim.

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at 640; see also Taek Sang Yoon v. Arnett, 385 Fed. App’x 666, 668

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(9th Cir. 2010) (“the district court properly dismissed any due

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process claim Yoon sought to allege based on defendants’ alleged

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failure to respond to, and interference with, Yoon’s administrative

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grievances, because he has no due process right to the handling of

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grievances in any particular manner”).

Mann v. Adams, 855 F.2d

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To the extent Plaintiff claims that any Defendant violated

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Plaintiff’s right of access to the courts, the Complaint fails to

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state a claim upon which relief may be granted.

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violation of his or her right of access to the courts must demonstrate

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that the inmate has standing to bring the claim by showing the
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An inmate claiming a

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defendant’s actions caused the inmate to suffer “actual injury” in

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pursuit of either a direct or collateral attack upon a conviction or

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sentence or a challenge to the conditions of confinement.

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Casey, 518 U.S. 343, 349 (1996).

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show that an action was “lost or rejected,” or that presentation of a

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non-frivolous claim was or is being prevented, as a result of the

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alleged denial of access.

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demonstrated by the simple fact that a prisoner is “subject to a

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governmental institution that was not organized or managed properly.”

Under Lewis v. Casey, an inmate must

Id. at 356.

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Id. at 350.

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Lewis v.

Actual injury is not

The Complaint does not allege any actual injury as

required by Lewis v. Casey.

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To the extent Plaintiff attempts to assert the rights of other

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inmates, Plaintiff may not do so in this action.

A pro se plaintiff

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may not represent anyone other than himself or herself.

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v. Burt, 141 F.3d 927, 931 (9th Cir. 1998); Johns v. County of San

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Diego, 114 F.3d 874, 876 (9th Cir. 1997).

See Campbell

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ORDER

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For the foregoing reasons, the Complaint is dismissed with leave

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to amend.

If Plaintiff still wishes to pursue this action, he is

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granted thirty (30) days from the date of this Order within which to

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file a First Amended Complaint.

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complete in itself.

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complaint or to any other document.

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Amended Complaint in conformity with this Order may result in the

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dismissal of this action.

The First Amended Complaint shall be

It shall not refer in any manner to any prior
Failure to file timely a First

See Pagtalunan v. Galaza, 291 F.3d 639,
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642-43 (9th Cir. 2002), cert. denied, 538 U.S. 909 (2003) (court may

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dismiss action for failure to follow court order); Simon v. Value

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Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th Cir.), amended, 234

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F.3d 428 (9th Cir. 2000), cert. denied, 531 U.S. 1104 (2001),

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overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d 541 (9th

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Cir.), cert. denied, 552 U.S. 985 (2007) (affirming dismissal without

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leave to amend where plaintiff failed to correct deficiencies in

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complaint, where court had afforded plaintiff opportunities to do so,

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and where court had given plaintiff notice of the substantive problems

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with his claims); Plumeau v. School District #40, County of Yamhill,

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130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend

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appropriate where further amendment would be futile).

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IT IS SO ORDERED.

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DATED: October 12, 2016.

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_______________________________
JOHN F. WALTER
UNITED STATES DISTRICT JUDGE

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PRESENTED this 12th day

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of October, 2016 by:

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___________/S/____
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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