Shane Mathew Mulvihill v. Los Angeles County Sheriffs Department

Filing 12

SECOND ORDER TO SHOW CAUSE RE LACK OF PROSECUTION by Magistrate Judge Alka Sagar. Plaintiff has failed to file a Second Amended Complaint or respond to the Court's Order to Show Cause. The Court will provide Plaintiff time - to October 10, 20 17 - to file a Second Amended Complaint or a declaration stating why he is unable to do so. (See Minute Order for complete details) (Attachments: # 1 Order Dismissing Complaint with Leave to Amend (Docket Entry No. 10), # 2 Order to Show Cause re: Lack of Prosecution (Docket Entry No. 11), # 3 Civil Rights Complaint (Blank), # 4 Notice of Dismissal (Blank)) (afe)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SHANE MATTHEW MULVIHILL, 12 ) No. CV17-00200-MWF (AS) ) ) ORDER DISMISSING FIRST AMENDED ) ) ) COMPLAINT WITH LEAVE TO AMEND ) ) ) ) Plaintiff, v. 13 14 15 LOS ANGELES COUNTY SHERIFF’S DEPARTMENT, Defendant. 16 17 I. 18 INTRODUCTION 19 20 On December 2016, prisoner California Matthew (“CIM”) 23 Complaint”) pursuant to 42 U.S.C. § 1983, (Docket Entry No. 1), 24 naming the Los Angeles County Sheriff’s Department (“Defendant”) as 25 the sole defendant. 26 2017, the Court dismissed the original Complaint with leave to amend. 27 (Docket Entry No. 7). 28 Amended Complaint (“FAC”). filed a Institution Mulvihill 22 California, the Shane (“Plaintiff”), Chino, at Plaintiff 21 in a 27, complaint (See Docket Entry No. 1 at 1). (“the for Men original On February 14, On March 10, 2017, Plaintiff filed a First (Docket Entry No. 9). 1 Plaintiff alleges 1 that 2 causing Plaintiff 3 relief. (Id. at 6). Defendant failed to medical (FAC harm. provide 5). at treatment Plaintiff to Plaintiff seeks monetary 4 The Court has screened the FAC as prescribed by 28 U.S.C. § 5 6 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). For the reasons set forth 7 below, the Court DISMISSES the First Amended Complaint WITH LEAVE TO 8 AMEND. 9 10 II. 11 ALLEGATIONS OF THE FIRST AMENDED COMPLAINT 12 Plaintiff alleges that while housed in the Los Angeles County 13 14 Men’s Central Jail, 15 treatment,” 16 suffering while incarcerated.” 17 alleges that “[t]he Facility in Question and deputies mentioned were 18 aware of [his] medical condition and disability that was accessible 19 through 20 deputies involved in the alleged conduct, Plaintiff’s request was 21 denied. 22 Defendant did not send Plaintiff’s medical records, which caused his 23 condition to deteriorate. (Id.). 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ which [his] (Id.). he was caused records.” denied Plaintiff When “proper medical/mental “further (FAC at 5). Plaintiff ongoing health pain and Specifically, Plaintiff asked for the names of When Plaintiff was subsequently transferred to CIM, 2 1 III. 2 STANDARD OF REVIEW 3 4 Congress mandates that district courts initially screen civil 5 complaints filed by prisoners seeking redress from a governmental 6 entity or employee. 7 complaint, or any portion thereof, before service of process, if the 8 court concludes that the complaint (1) is frivolous or malicious; 9 (2) fails to state a claim upon which relief may be granted; or 10 (3) seeks monetary relief from a defendant who is immune from such 11 relief. 12 203 F.3d 1122, 1126–27 & n.7 (9th Cir. 2000) (en banc). 28 U.S.C. 28 U.S.C. § 1915A. § 1915A(b)(1)–(2); A court may dismiss such a see also Lopez v. Smith, 13 14 Dismissal for failure to state a claim is appropriate if a 15 complaint fails to proffer “enough facts to state a claim for relief 16 that is 17 550 U.S. 18 (2009). “A claim has facial plausibility when the plaintiff pleads 19 factual content 20 inference that the defendant is liable for the misconduct alleged.” 21 Iqbal, 556 U.S. at 678; see also Hartmann v. Cal. Dep’t of Corr. 22 & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). 23 provide more than “labels and conclusions” or a “formulaic recitation 24 of the elements” of his claim. 25 556 U.S. at 678. 26 [complaint] need only ‘give the defendant fair notice of what the 27 . . . claim is and the grounds upon which it rests.’” plausible 544, 570 on its (2007); that face.” Bell Ashcroft v. allows the court Atl. Iqbal, to Corp. 556 draw v. U.S. the Twombly, 662, 678 reasonable A plaintiff must Twombly, 550 U.S. at 555; Iqbal, However, “[s]pecific facts are not necessary; the 28 3 Erickson v. 1 Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 2 U.S. at 555). 3 In 4 considering whether to dismiss a complaint, a court is 5 generally limited to the pleadings and must construe all “factual 6 allegations set forth in the complaint . . . as true and . . . in the 7 light 8 250 F.3d 668, 679 (9th Cir. 2001). 9 “to be liberally construed” and held to a less stringent standard most favorable” to the plaintiff. Lee v. City of L.A., Moreover, pro se pleadings are 10 than those drafted by a lawyer. 11 Hebbe 12 incorporated the Twombly pleading standard and Twombly did not alter 13 courts’ treatment of pro se filings; accordingly, we continue to 14 construe 15 Iqbal.”). 16 be warranted based on either the lack of a cognizable legal theory or 17 the 18 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 19 2008). 20 claim 21 necessarily defeat the claim. 22 1228–29 (9th Cir. 1984). v. Pliler, pro se 627 F.3d filings Erickson, 551 U.S. at 94; see also 338, 342 liberally (9th when Cir. 2010) evaluating (“Iqbal them under Nevertheless, dismissal for failure to state a claim can absence of factual support for a cognizable legal theory. A complaint may also be dismissed for failure to state a if it discloses some fact or complete defense that will Franklin v. Murphy, 745 F.2d 1221, 23 24 IV. 25 DISCUSSION 26 27 28 The FAC contains deficiencies leave to amend will be granted. warranting dismissal, See 28 U.S.C. § 1915A(b)(1). 4 although 1 A. The FAC Fails To Satisfy Federal Rule Of Civil Procedure 8 2 3 As currently pled, Plaintiff’s allegations do not provide 4 sufficient detail to assert a § 1983 claim in accordance with Federal 5 Rule of Civil Procedure 8. 6 complaint contain “‘a short and plain statement of the claim showing 7 that 8 defendant fair notice of what the . . . claim is and the grounds upon 9 which it rests.’” the pleader is Rule 8 requires, in relevant, part that a entitled to relief,’ in order to ‘give the Twombly, 550 U.S. at 555 (quoting Fed. R. Civ. P. 10 8(a)). Rule 8 therefore requires more than a blanket assertion of 11 entitlement 12 complaint 13 requirement of providing not only fair notice of the nature of the 14 claim, but also grounds on which the claim rests. 15 8(a)(2); Twombly, 550 U.S. at 555. to it is relief; hard without to see some how factual a claimant allegations could in the satisfy the Fed. R. Civ. P. 16 Here, the FAC does not comply with Rule 8 because it contains 17 18 conclusory allegations. 19 FAC are less specific than those provided in Plaintiff’s original 20 Complaint. 21 that Defendant failed to provide “mental health/medical treatment” 22 for his disability, which deputies were aware of, and Plaintiff’s 23 inability to obtain treatment caused “ongoing pain and suffering.” 24 (FAC at 5). 25 surrounding 26 treatment; nor do they identify the individual deputies and staff 27 involved in the alleged conduct. 28 for failure In fact, the allegations contained in the (See Docket Entry No. 1). Plaintiff generally alleges These allegations do not specifically state the facts Plaintiff’s to state a medical claim condition and alleged denial of A complaint is subject to dismissal if 5 “one cannot determine from the 1 complaint who is being sued, for what relief, and on what theory.” 2 McHenry 3 Chevalier v. Ray and Joan Kroc Corps. Cmty. Ctr., No. C-11-4891 SBA, 4 2012 WL 2088819, *2 (N.D. Cal. June 8, 2012) (complaint that did not 5 “identify which wrongs were committed by which Defendant” violated 6 Rule 8). v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996); see also 7 8 Consequently, the FAC does not show there are plausible grounds 9 for relief, nor does it provide enough facts for the Defendant to 10 properly respond to the FAC. Cafasso, U.S. ex rel. v. Gen. Dynamics 11 C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011). 12 to identify what individuals carried out the activities discussed in 13 the FAC, and Defendant cannot adequately respond to the Complaint 14 without this basic information.1 Plaintiff fails 15 Accordingly, the FAC is dismissed with leave to amend in order 16 17 to provide more facts to satisfy Rule 8. 18 19 B. Plaintiff Cannot Reference A Dismissed Complaint In An Amended Complaint 20 21 When 22 23 a Plaintiff files an amended complaint supersedes the original complaint. complaint, the amended Rhodes v. Robinson, 621 24 25 26 27 28 1 Plaintiff is also advised that if he is unaware of the identities of any Doe Defendant(s), he should state this fact in his Second Amended Complaint and refer to unnamed defendants as “Doe Defendant,” identifying each defendant by number (e.g. “Doe Defendant 1,” “Doe Defendant 2,” etc.). See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (use of "Doe" Defendants is permissible in certain circumstances). 6 1 F.3d 1002, 1005 (9th Cir. 2010); Ferdik v. Bonzelet, 963 F.2d 1258, 2 1262 (9th Cir. 1992). 3 prior complaint as nonexistent. 4 amended 5 [complaint].” complaint After amendment, the Court will treat any “shall Rhodes, 621 F.2d at 1005. not refer to the prior, Any superseded L.R. 15-2 6 7 Plaintiff not only referenced the original Complaint in the FAC, 8 but he also filed a factually less detailed FAC than the original 9 Complaint. It is apparent that Plaintiff believes that the 10 allegations made in the original Complaint need not be re-stated in 11 the FAC. 12 surrounding 13 forward. The Court explicitly ordered Plaintiff that any amended 14 complaint “shall 15 original Complaint.” 16 required to follow the Court’s instructions and the Local Rules in 17 any future amended complaint. This is not the case. the alleged be Plaintiff must allege all facts conduct complete in in any itself amended without complaint reference (See Docket Entry No. 7 at 13). going to the Plaintiff is 18 19 C. The FAC Fails To Allege Municipal Liability 20 21 In order to successfully bring suit against a local government 22 agency under § 1983, a plaintiff must establish that “the action that 23 is alleged 24 . 25 promulgated by “the municipality, or that the action was “visited 26 pursuant to a governmental ‘custom.’” 27 Of City of N.Y., 436 U.S. 658, 690-91 (1978). 28 plaintiff must show that a “deliberate action[,] attributable to the . . to be unconstitutional ordinance, regulation, implements or executes a policy or decision 7 officially adopted and Monell v. Dep’t of Soc. Servs. In other words, a 1 municipality itself[,] is the ‘moving force’ behind the plaintiff’s 2 deprivation of federal rights.” 3 Okl. v. Brown, 520 U.S. 397, 400 (1997). Bd. of Cty. Comm’rs of Bryan Cty. 4 5 Here, Plaintiff has not identified any policy, ordinance, or 6 custom of the County Jail that led to the deprivation of Plaintiff’s 7 constitutional rights. 8 alleges that he was denied medical treatment. 9 insufficient to state a viable Monell claim. 10 (See FAC. at 5-7). Instead, Plaintiff merely These allegations are Accordingly, the FAC is dismissed with leave to amend. 11 12 V. 13 ORDER 14 For the reasons discussed above, the Court DISMISSES the First 15 16 Amended Complaint WITH LEAVE TO AMEND. 17 pursue this action, he shall file a Second Amended Complaint no later 18 than 19 Complaint must cure the pleading defects discussed above and shall be 20 complete 21 Complaint. 22 of right or allowed by order of the Court shall be complete including 23 exhibits. 24 superseding pleading.”). 25 plead any viable claims in the FAC and the original Complaint again. 30 days in from itself the date without of this If Plaintiff still wishes to Order. reference to The the Second FAC or Amended original See L.R. 15-2 (“Every amended pleading filed as a matter The amended pleading shall not refer to the prior, This means that Plaintiff must allege and 26 27 In any amended complaint, Plaintiff should identify the nature 28 of each separate legal claim and confine his allegations to those 8 1 operative facts supporting each of his claims. 2 Rule of Civil Procedure 8(a), all that is required is a “short and 3 plain statement of the claim showing that the pleader is entitled to 4 relief.” 5 Second Amended Complaint should be consistent with the authorities 6 discussed above. 7 include 8 allegations 9 strongly encouraged to once again utilize the standard civil rights 10 complaint form when filing any amended complaint, a copy of which is 11 attached. Pursuant to Federal However, Plaintiff is advised that the allegations in the new In addition, the Second Amended Complaint may not Defendants in the or claims previously not filed reasonably related complaints. to Plaintiff the is 12 Plaintiff is explicitly cautioned that failure to timely file a 13 14 Second Amended Complaint, 15 described above, may result in a recommendation that this action, or 16 portions 17 prosecute and/or failure to comply with court orders. 18 Civ. P. 19 wishes 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ thereof, 41(b). to be or failure dismissed with to correct the deficiencies prejudice Plaintiff is further advised pursue this action in its entirety 9 for failure to See Fed. R. that if he no longer or with respect to 1 particular Defendants or claims, he may voluntarily dismiss all or 2 any part of this action by filing a Notice of Dismissal in accordance 3 with Federal Rule of Civil Procedure 41(a)(1). 4 Dismissal is attached for Plaintiff’s convenience. A form Notice of 5 6 IT IS SO ORDERED. 7 8 Dated: March 17, 2017 9 10 11 ______________/s/_____________ ALKA SAGAR United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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