Manuel Reyna Chavez v. County Jail of San Bernardino et al

Filing 19

ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Kenly Kiya Kato, re Amended Complaint 18 Within 14 days of the date of this order, or by April 22, 2015, Plaintiff may file a Third Amended Complaint to attempt to cure the deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a blank Central District civil rights complaint form to use for filing the ThirdAmended Complaint, and a copy of Plaintiffs deficient Second Amended Complaint. (Attachments: # 1 Civil Rights Form, # 2 2nd Amended Complaint) (dts)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MANUEL REYNA CHAVEZ, Case No. EDCV 14-02378-MMM (KK) 12 ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) Plaintiff, ) ) v. ) ) ) COUNTY JAIL OF SAN BERNARDINO) ET. AL., ) Defendants. ) ) This is a pro se inmate civil rights case. On April 7, 2015, Plaintiff Manuel Reyna Chavez (“Plaintiff”) filed a Second Amended Complaint (“SAC”). For the reasons that follow, the Court hereby orders it dismissed with leave to amend. I. PROCEDURAL BACKGROUND On November 18, 2014, Plaintiff, proceeding pro se and in forma pauperis, lodged a civil rights complaint pursuant to 42 U.S.C. § 1983 (“Complaint”). ECF 1-1. The Complaint alleged Plaintiff was the victim of excessive force, in violation of the Eighth Amendment, by three individual defendant San Bernardino Sheriff Deputies – [FNU] Sanchez, [FNU] Reynoso, and [FNU] Ungureanu – while an 1 1 inmate at the West Valley Detention Center. Id. at 3-5. The Complaint also named 2 San Bernardino Sheriff John McMahon, who was alleged to be “the head sheriff of 3 S.B.S.D. that’s accountable, liable, and responsible for these ‘3 deputies’ actions 4 and misconduct.” Id. at 3. The Complaint sued all four defendants in both their 5 individual and official capacities. Although not clear, the Complaint appeared to 6 also name the County Jail of San Bernardino as a defendant. On November 21, 7 2014, the Court dismissed the Complaint with leave to amend. ECF 2. Among 8 other things, the Court found the Complaint failed to state a claim against any entity 9 defendant or any defendant in his official capacity, and failed to state a claim 10 against Sheriff McMahon in his individual capacity, as well. Id. at 3-6. The Court, 11 however, ordered dismissal with leave to amend. Id. at 6-7. 12 On December 17, 2014, Plaintiff filed a First Amended Complaint. ECF 8. 13 The First Amended Complaint named seven defendants: (1) the County of San 14 Bernardino, (2) San Bernardino County Jail, (3) the Head Sheriff of West Valley 15 Detention Center, (4) Captain Jeff Rose of the San Bernardino County Jail, (5) 16 Deputy Sanchez, (6) Deputy Reynoso, and (7) Deputy Ungureanu. Id. at 3-4. All 17 defendants were sued in both their individual and official capacities. Id. at 1-6. On 18 January 8, 2015, the Court dismissed the First Amended Complaint with leave to 19 amend. ECF 9. The Court found the First Amended Complaint failed to state 20 viable official capacity claims against the individual defendants and municipal 21 liability claims against the County of San Bernardino and San Bernardino County 22 Jail. Id. at 3-5. The Court also found Plaintiff failed to state viable individual 23 capacity claims against defendants Reynoso, Head Sheriff of West Valley Detention 24 Center, and Captain Jeff Rose. Id. at 5-6. 25 On April 7, 2015, Plaintiff filed the instant SAC, again asserting the same 26 central Eighth Amendment claim. ECF 18. The SAC names three defendants: (1) 27 28 2 1 Deputy Ungureanu; (2) Deputy Reynoso; and (3) Deputy Sanchez. Id. at 3. As in 2 his prior complaints, Plaintiff checks boxes on the third page of the SAC indicating 3 he sues all three defendants in their individual and official capacities. Id. 4 While Plaintiff has addressed the First Amended Complaint’s deficiencies 5 with respect to defendants County of San Bernardino, San Bernardino County Jail, 6 Head Sheriff of West Valley Detention Center, and Captain Jeff Rose, the Court 7 finds the SAC is still subject to dismissal because of its failure to: (1) allege 8 plausible official capacity claims against all three named defendants; and (2) allege 9 a plausible individual capacity claim against defendant Reynoso. However, 10 dismissal will be with leave to amend. 11 II. 12 LEGAL STANDARD 13 The Prison Litigation Reform Act of 1996 obligates the court to review 14 complaints filed by all persons proceeding in forma pauperis, and by all prisoners 15 seeking redress from government entities. See 28 U.S.C. §§ 1915(e)(2), 1915A. 16 Under these provisions, the court may sua sponte dismiss, “at any time,” any 17 prisoner civil rights action and all other in forma pauperis complaints that are 18 frivolous or malicious, fail to state a claim, or seek damages from defendants who 19 are immune. Id., see also Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 20 (en banc). 21 The dismissal for failure to state a claim “can be based on the lack of a 22 cognizable legal theory or the absence of sufficient facts alleged under a cognizable 23 legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 24 1990). In making such a determination, a complaint’s allegations must be accepted 25 as true and construed in the light most favorable to the plaintiff. Love v. United 26 States, 915 F.2d 1242, 1245 (9th Cir. 1990). Further, because Plaintiff is appearing 27 28 3 1 pro se, the court must construe the allegations of the complaint liberally and must 2 afford Plaintiff the benefit of any doubt. Karim-Panahi v. L.A. Police Dep’t, 839 3 F.2d 621, 623 (9th Cir. 1988). But the “[f]actual allegations must be enough to 4 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 5 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Thus, a complaint must 6 contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 7 570. “A claim has facial plausibility when the plaintiff pleads enough factual 8 content that allows the court to draw the reasonable inference that the defendant is 9 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 10 1937, 173 L. Ed. 2d 868 (2009). 11 III. 12 DISCUSSION 13 A. The Complaint Fails to State a Claim Against the Defendants in Their 14 Official Capacities 15 In order to state a claim for a civil rights violation under 42 U.S.C. section 16 1983, a plaintiff must allege that a particular defendant, acting under color of state 17 law, deprived plaintiff of a right guaranteed under the U.S. Constitution or a federal 18 statute. 42 U.S.C. § 1983; see West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 19 L. Ed. 2d 40 (1988). 20 Suits against governmental officers in their official capacities are subject to 21 the same requirements as Monell claims against local government entities. See 22 Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985) 23 (“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit 24 against the entity of which an officer is an agent.”) (internal citation omitted); see 25 also Monell v. Dep’t of Soc. Serv. of City of New York, 436 U.S. 658, 691, 98 S. Ct. 26 2018, 56 L. Ed. 2d 611 (1978). Indeed, despite naming individual governmental 27 28 4 1 officials, “[o]fficial-capacity suits . . . ‘generally represent only another way of 2 pleading an action against an entity of which an officer is an agent.’” Graham, 473 3 U.S. at 166 (quoting Monell, 436 U.S. at 691). Hence, as with claims against local 4 governments under Monell, to impose liability against officials acting in their 5 official capacity, “the entity’s ‘policy or custom’ must have played a part in the 6 violation of federal law.” Id. (internal citations omitted); Gibson v. Cnty. of 7 Washoe, 290 F.3d 1175, 1185 (9th Cir. 2002) (describing “two routes” to municipal 8 liability: (1) where municipality’s official policy, regulation, or decision violated 9 plaintiff’s rights, or (2) alternatively where municipality failed to act under 10 circumstances showing its deliberate indifference to plaintiff’s rights). Under 11 certain circumstances, a single act, when carried out by a municipal “policymaker,” 12 may also give rise to Monell liability, even in the absence of a municipal policy or 13 custom. See Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84, 106 S. Ct. 1292, 14 89 L. Ed. 2d 452 (1986) (“[Section 1983] municipal liability may be imposed for a 15 single decision by municipal policymakers under appropriate circumstances.”). 16 An unwritten custom may give rise to Monell liability when it becomes “so 17 ‘persistent and widespread’ that it constitutes a ‘permanent and well settled 18 [municipal] policy.’” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting 19 Monell, 436 U.S. at 691); see Thomas v. Baca, 514 F. Supp. 2d 1201, 1212 (C.D. 20 Cal. 2007) (“A custom is a ‘longstanding practice . . . which constitutes the standard 21 operating procedure of the local government entity.’”) (quoting Menotti v. City of 22 Seattle, 409 F.3d 1113, 1151 (9th Cir. 2005)). “Isolated or sporadic incidents” are 23 insufficient to establish an improper municipal custom. Trevino, 99 F.3d at 918 24 (“Liability for improper custom may not be predicated on isolated or sporadic 25 incidents; it must be founded upon practices of sufficient duration, frequency and 26 consistency that the conduct has become a traditional method of carrying out 27 28 5 1 policy.”) (internal citations omitted). 2 Here, the SAC has failed to correct the deficiencies identified by the Court in its 3 previous orders. Plaintiff has again failed to show the alleged misconduct by 4 defendants Ungureanu, Reynoso, and Sanchez was committed pursuant to any official 5 government policy or custom. Rather, the alleged misconduct Plaintiff complains of 6 was committed by individual officers not acting pursuant to any identifiable 7 governmental policy or custom. Furthermore, Plaintiff does not allege that any of the 8 individual defendants was a municipal “policymaker,” such that a single act by such 9 officials would give rise to Monell liability. Because of the lack of an identifiable 10 policy or custom involved in the constitutional violation Plaintiff complains of, 11 Plaintiff fails to state a claim under Monell against the three individual defendants in 12 their official capacities. 13 Accordingly, Plaintiff’s official capacity claims against the three defendants 14 must be dismissed. If Plaintiff wishes to proceed against any of these defendants in 15 their official capacities, he must (1) specify an unconstitutional policy or custom, (2) 16 allege facts supporting the existence of that policy or custom, and (3) explain how that 17 policy or custom was the “moving force” behind his injury. Alternatively, Plaintiff 18 may simply not check the boxes on the third page of his complaint labeled “official 19 capacity” and proceed solely on his individual capacity claims against the three 20 defendants. 21 B. The SAC Fails to State a Claim Against Deputy Reynoso in His Individual 22 Capacity 23 The SAC alleges Deputy Reynoso is liable for civil rights violations because he 24 “threatened” Plaintiff’s life by stating “if [Plaintiff] didn’t shut the F— up! He was 25 going to push [Plaintiff’s] glasses into [his] face” and the “glasses are going to become 26 [Plaintiff]s eyeballs.” SAC at 3. As the Court noted when dismissing Plaintiff’s First 27 28 6 1 Amended Complaint, allegations of verbal harassment and embarrassment fail to state 2 a cognizable claim under section 1983. Rutledge v. Arizona Bd. of Regents, 660 F.2d 3 1345, 1353 (9th Cir. 1981). Allegations of mere threats are also not cognizable under 4 section 1983. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Thus, the SAC 5 fails to state a claim against Deputy Reynoso in his individual capacity. 6 If Plaintiff wishes to proceed against defendant Reynoso, he must allege facts 7 showing Reynoso’s involvement in a constitutional violation. Alternatively, Plaintiff 8 may simply omit Reynoso from any future amended complaint. 9 IV. 10 LEAVE TO FILE A THIRD AMENDED COMPLAINT 11 For the foregoing reasons, the SAC is subject to dismissal. As the court is 12 unable to determine whether amendment would be futile, leave to amend is granted. 13 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). 14 Accordingly, IT IS ORDERED THAT: 15 1) Within 14 days of the date of this order, or by April 22, 2015, Plaintiff 16 may file a Third Amended Complaint to attempt to cure the deficiencies 17 discussed above. The Clerk of Court is directed to mail Plaintiff a blank 18 Central District civil rights complaint form to use for filing the Third 19 Amended Complaint, and a copy of Plaintiff’s deficient Second Amended 20 Complaint. 21 2) If Plaintiff chooses to file a Third Amended Complaint, Plaintiff must 22 clearly designate on the face of the document that it is the “Third 23 Amended Complaint,” it must bear the docket number assigned to this 24 case, and it must be retyped or rewritten in its entirety, preferably on the 25 court-approved form. The Third Amended Complaint must be complete 26 in and of itself, without reference to the original complaint or any other 27 28 7 1 2 pleading, attachment or document. An amended complaint supersedes the preceding complaint. Ferdik v. Bonzelet, 3 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the court will treat all 4 preceding complaints as nonexistent. Id. Because the court grants Plaintiff leave to 5 amend as to all his claims raised here, any claim that was raised in a preceding 6 complaint is waived if it is not raised again in the Third Amended Complaint. Lacey 7 v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012). 8 Because any Third Amended Complaint will be plaintiff’s third opportunity to 9 amend his complaint to rectify pleading deficiencies, the Court advises plaintiff that 10 it will not be disposed toward another dismissal without prejudice and with leave to 11 amend. “[A] district court’s discretion over amendments is especially broad ‘where 12 the court has already given a plaintiff one or more opportunities to amend his 13 complaint.’” Ismail v. County of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012) 14 (Valerie Baker Fairbank, J.) (quoting DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 15 186 n.3 (9th Cir. 1987)); see also Zavala v. Bartnik, 348 F. App’x 211, 213 (9th Cir. 16 2009) (“Dismissal with prejudice was proper because Zavala was given two prior 17 opportunities to amend his complaint in order to correct the deficiencies identified by 18 the district court but failed to do so.”). 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 26 27 28 8 1 Plaintiff is admonished he has failed to remedy the deficiencies identified 2 by the Court in its Order dismissing his First Amended Complaint. If Plaintiff 3 again fails to comply with the Court’s instructions, the Court may recommend 4 this action be dismissed with prejudice. 5 6 7 8 DATED: April 8, 2015 9 HON. KENLY KIYA KATO United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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