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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SHANE MATTHEW MULVIHILL,

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) No. CV17-00200-MWF (AS)
)
) ORDER DISMISSING FIRST AMENDED
)
)
) COMPLAINT WITH LEAVE TO AMEND
)
)
)
)

Plaintiff,
v.

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LOS ANGELES COUNTY SHERIFF’S
DEPARTMENT,
Defendant.

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I.

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INTRODUCTION

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On

December

2016,

prisoner

California

Matthew

(“CIM”)

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Complaint”) pursuant to 42 U.S.C. § 1983, (Docket Entry No. 1),

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naming the Los Angeles County Sheriff’s Department (“Defendant”) as

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the sole defendant.

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2017, the Court dismissed the original Complaint with leave to amend.

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(Docket Entry No. 7).

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Amended Complaint (“FAC”).

filed

a

Institution

Mulvihill

22

California,

the

Shane

(“Plaintiff”),

Chino,

at

Plaintiff

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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).
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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. §

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1915A(a) and 28 U.S.C. § 1915(e)(2)(B).

For the reasons set forth

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below, the Court DISMISSES the First Amended Complaint WITH LEAVE TO

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AMEND.

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II.

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ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

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Plaintiff alleges that while housed in the Los Angeles County

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Men’s

Central

Jail,

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treatment,”

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suffering while incarcerated.”

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alleges that “[t]he Facility in Question and deputies mentioned were

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aware of [his] medical condition and disability that was accessible

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through

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deputies involved in the alleged conduct, Plaintiff’s request was

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denied.

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Defendant did not send Plaintiff’s medical records, which caused his

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condition to deteriorate. (Id.).

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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

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III.

2

STANDARD OF REVIEW

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Congress mandates that district courts initially screen civil

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complaints filed by prisoners seeking redress from a governmental

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entity or employee.

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complaint, or any portion thereof, before service of process, if the

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court concludes that the complaint (1) is frivolous or malicious;

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(2) fails to state a claim upon which relief may be granted; or

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(3) seeks monetary relief from a defendant who is immune from such

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relief.

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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,

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Dismissal for failure to state a claim is appropriate if a

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complaint fails to proffer “enough facts to state a claim for relief

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that

is

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550

U.S.

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(2009).

“A claim has facial plausibility when the plaintiff pleads

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factual

content

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inference that the defendant is liable for the misconduct alleged.”

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Iqbal, 556 U.S. at 678; see also Hartmann v. Cal. Dep’t of Corr.

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& Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013).

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provide more than “labels and conclusions” or a “formulaic recitation

24

of the elements” of his claim.

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556 U.S. at 678.

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[complaint] need only ‘give the defendant fair notice of what the

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. . . 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

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3

Erickson v.

1

Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550

2

U.S. at 555).

3

In

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considering

whether

to

dismiss

a

complaint,

a

court

is

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generally limited to the pleadings and must construe all “factual

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allegations set forth in the complaint . . . as true and . . . in the

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light

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250 F.3d 668, 679 (9th Cir. 2001).

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“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

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than those drafted by a lawyer.

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Hebbe

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incorporated the Twombly pleading standard and Twombly did not alter

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courts’ treatment of pro se filings; accordingly, we continue to

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construe

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Iqbal.”).

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be warranted based on either the lack of a cognizable legal theory or

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the

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Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.

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2008).

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claim

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necessarily defeat the claim.

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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,

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IV.

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DISCUSSION

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The

FAC

contains

deficiencies

leave to amend will be granted.

warranting

dismissal,

See 28 U.S.C. § 1915A(b)(1).
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although

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A.

The FAC Fails To Satisfy Federal Rule Of Civil Procedure 8

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As

currently

pled,

Plaintiff’s

allegations

do

not

provide

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sufficient detail to assert a § 1983 claim in accordance with Federal

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Rule of Civil Procedure 8.

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complaint contain “‘a short and plain statement of the claim showing

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that

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defendant fair notice of what the . . . claim is and the grounds upon

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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.

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8(a)).

Rule 8 therefore requires more than a blanket assertion of

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entitlement

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complaint

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requirement of providing not only fair notice of the nature of the

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claim, but also grounds on which the claim rests.

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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.

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Here, the FAC does not comply with Rule 8 because it contains

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conclusory allegations.

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FAC are less specific than those provided in Plaintiff’s original

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Complaint.

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that Defendant failed to provide “mental health/medical treatment”

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for his disability, which deputies were aware of, and Plaintiff’s

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inability to obtain treatment caused “ongoing pain and suffering.”

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(FAC at 5).

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surrounding

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treatment; nor do they identify the individual deputies and staff

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involved in the alleged conduct.

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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
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“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,

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2012 WL 2088819, *2 (N.D. Cal. June 8, 2012) (complaint that did not

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“identify which wrongs were committed by which Defendant” violated

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Rule 8).

v.

Renne,

84

F.3d

1172,

1178

(9th

Cir.

1996);

see

also

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Consequently, the FAC does not show there are plausible grounds

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for relief, nor does it provide enough facts for the Defendant to

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properly respond to the FAC.

Cafasso, U.S. ex rel. v. Gen. Dynamics

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C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011).

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to identify what individuals carried out the activities discussed in

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the FAC, and Defendant cannot adequately respond to the Complaint

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without this basic information.1

Plaintiff fails

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Accordingly, the FAC is dismissed with leave to amend in order

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to provide more facts to satisfy Rule 8.

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B.

Plaintiff Cannot Reference A Dismissed Complaint In An Amended
Complaint

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When

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a

Plaintiff

files

an

amended

complaint supersedes the original complaint.

complaint,

the

amended

Rhodes v. Robinson, 621

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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).
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F.3d 1002, 1005 (9th Cir. 2010); Ferdik v. Bonzelet, 963 F.2d 1258,

2

1262 (9th Cir. 1992).

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prior complaint as nonexistent.

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amended

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[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

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Plaintiff not only referenced the original Complaint in the FAC,

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but he also filed a factually less detailed FAC than the original

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Complaint.

It

is

apparent

that

Plaintiff

believes

that

the

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allegations made in the original Complaint need not be re-stated in

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the FAC.

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surrounding

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forward.

The Court explicitly ordered Plaintiff that any amended

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complaint

“shall

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original Complaint.”

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required to follow the Court’s instructions and the Local Rules in

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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

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C.

The FAC Fails To Allege Municipal Liability

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In order to successfully bring suit against a local government

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agency under § 1983, a plaintiff must establish that “the action that

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is alleged

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.

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promulgated by “the municipality, or that the action was “visited

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pursuant to a governmental ‘custom.’”

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Of City of N.Y., 436 U.S. 658, 690-91 (1978).

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plaintiff must show that a “deliberate action[,] attributable to the

.

.

to be unconstitutional

ordinance,

regulation,

implements or executes a policy

or

decision

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officially

adopted

and

Monell v. Dep’t of Soc. Servs.
In other words, a

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municipality itself[,] is the ‘moving force’ behind the plaintiff’s

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deprivation of federal rights.”

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Okl. v. Brown, 520 U.S. 397, 400 (1997).

Bd. of Cty. Comm’rs of Bryan Cty.

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Here, Plaintiff has not identified any policy, ordinance, or

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custom of the County Jail that led to the deprivation of Plaintiff’s

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constitutional rights.

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alleges that he was denied medical treatment.

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insufficient to state a viable Monell claim.

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(See FAC. at 5-7).

Instead, Plaintiff merely
These allegations are
Accordingly, the FAC is

dismissed with leave to amend.

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V.

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ORDER

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For the reasons discussed above, the Court DISMISSES the First

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Amended Complaint WITH LEAVE TO AMEND.

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pursue this action, he shall file a Second Amended Complaint no later

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than

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Complaint must cure the pleading defects discussed above and shall be

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complete

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Complaint.

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of right or allowed by order of the Court shall be complete including

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exhibits.

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superseding pleading.”).

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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

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In any amended complaint, Plaintiff should identify the nature

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of each separate legal claim and confine his allegations to those
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1

operative facts supporting each of his claims.

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Rule of Civil Procedure 8(a), all that is required is a “short and

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plain statement of the claim showing that the pleader is entitled to

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relief.”

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Second Amended Complaint should be consistent with the authorities

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discussed above.

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include

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allegations

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strongly encouraged to once again utilize the standard civil rights

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complaint form when filing any amended complaint, a copy of which is

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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

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Plaintiff is explicitly cautioned that failure to timely file a

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Second

Amended

Complaint,

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described above, may result in a recommendation that this action, or

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portions

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prosecute and/or failure to comply with court orders.

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Civ. P.

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wishes

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thereof,

41(b).
to

be

or

failure

dismissed

with

to correct the deficiencies

prejudice

Plaintiff is further advised

pursue this action

in its entirety

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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

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any part of this action by filing a Notice of Dismissal in accordance

3

with Federal Rule of Civil Procedure 41(a)(1).

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Dismissal is attached for Plaintiff’s convenience.

A form Notice of

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IT IS SO ORDERED.

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Dated: March 17, 2017

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______________/s/_____________
ALKA SAGAR
United States Magistrate Judge

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