Duane A Finks v. Riverside Co Sheriffs Dept et al

Filing 5

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Judge John F. Walter. 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. 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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DUANE A. FINKS,

) NO. CV 16-217-JFW(E)
)
Plaintiff,
)
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v.
) ORDER DISMISSING COMPLAINT
)
RIVERSIDE COUNTY SHERIFF’S
) WITH LEAVE TO AMEND
DEPARTMENT, et al.,
)
)
Defendants.
)
______________________________)

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For the reasons discussed below, 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, proceeding in forma pauperis, brings this civil rights

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action pursuant to 42 U.S.C. section 1983 against the Riverside County

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Sheriff’s Department and deputy sheriffs Wilson, Delgado and Oden.

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Plaintiff sues the individual Defendants in their individual and

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official capacities.

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Plaintiff alleges he suffers from kidney failure (Complaint, p.

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5).

On November 17, 2015, allegedly while in the custody of the

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Riverside County Sheriff’s Department and hooked up to a dialysis

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machine, Plaintiff assertedly informed a nurse that Plaintiff wished

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to end his dialysis treatment (id., pp. 3, 5).

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allegedly “took too long,” Plaintiff assertedly attempted to remove

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the needles himself (id., p. 5).

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allegedly burst in and grabbed Plaintiff’s free arm (id.).

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Delgado allegedly punched Plaintiff in the face several times (id.).

Because the nurse

Defendants Oden and Delgado
Defendant

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When Plaintiff assertedly attempted to defend himself, Defendant Oden

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allegedly began punching Plaintiff in the face and body (id.).

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Defendant Wilson reportedly entered and then allegedly twisted

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Plaintiff’s “dialysis arm” so violently that the arm supposedly

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swelled up to twice its size (id.).

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“squirting everywhere” (id.).

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Plaintiff’s arm in a twisted position until nurses could stop the

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bleeding (id.).

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minutes of “painful beatings,” Plaintiff allegedly “was then

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handcuffed by all [Plaintiff’s] extremities” and “staked out on my bed

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in a form of torture” for approximately an hour (id.).

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allegedly remained in the hospital for another ten days until his arm

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healed (id.).

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to cruel and unusual punishment and seeks compensatory damages,

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imposition of “administrative remedies” against the individual

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Defendants and a “FULL investigation” (id., p. 6).

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Plaintiff alleges that blood was

Defendant Wilson allegedly held

According to Plaintiff, after approximately 40

Plaintiff

Plaintiff alleges that Defendants subjected Plaintiff

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DISCUSSION

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The Court must construe Plaintiff’s official capacity claims as

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claims against the County of Riverside.

See Kentucky v. Graham, 473

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U.S. 159, 165-66 (1985).

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such as the County of Riverside or the Riverside County Sheriff’s

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Department on a theory of respondeat superior, which is not a theory

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of liability cognizable under 42 U.S.C. section 1983.

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Thompson, 563 U.S. 51, 60 (2011); Ashcroft v. Iqbal, 556 U.S. 662, 676

Plaintiff may not sue a municipal entity

See Connick v.

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(2009); Polk County v. Dodson, 454 U.S. 312, 325 (1981); Gibson v.

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County of Washoe, Nev., 290 F.3d 1175, 1185 (9th Cir. 2002), cert.

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denied, 537 U.S. 1106 (2003).

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only if the alleged wrongdoing was committed pursuant to a municipal

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policy, custom or usage.

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County, Oklahoma v. Brown, 520 U.S. 397, 402-04 (1997); Monell v. New

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

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Conclusory allegations do not suffice to plead a municipal liability

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claim.

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more than an “unadorned, the-defendant-unlawfully-harmed-me

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accusation”; a pleading that “offers labels and conclusions or a

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formulaic recitation of the elements of a cause of action will not

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do”); Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (en banc),

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cert. denied, 132 S. Ct. 2101 (2012) (“allegations in a complaint or

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counterclaim may not simply recite the elements of a cause of action,

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but must contain sufficient allegations of underlying facts to give

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fair notice and to enable the opposing party to defend itself

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effectively”); see also AE ex rel. Hernandez v. County of Tulare, 666

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F.3d 631, 637 (9th Cir. 2012) (pleading standards set forth in Starr

A municipal entity may be held liable

See Board of County Commissioners of Bryan

See Ashcroft v. Iqbal, 556 U.S. at 678 (plaintiff must allege

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v. Baca govern municipal liability claims).

The Complaint contains no

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allegations supporting a municipal liability claim against the

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Riverside County Sheriff’s Department.

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Furthermore, Plaintiff may not seek an order requiring the

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prosecution of any person.

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Government retains ‘broad discretion’ as to whom to prosecute.”

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v. United States, 470 U.S. 598, 607 (1985).

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lacks a judicially cognizable interest in the prosecution or

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nonprosecution of another.”

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“In our criminal justice system, the
Wayte

“[A] private citizen

Linda R. S. v. Richard D., 410 U.S. 614,

619 (1973).

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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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necessarily deem insufficient all of Plaintiff’s claims, the Court

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does require that any First Amended Complaint be complete in itself

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and not refer in any manner to any prior complaint.

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timely a First Amended Complaint may result in the dismissal of this

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action.

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2002), cert. denied, 538 U.S. 909 (2003) (court may dismiss action for

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failure to follow court order); Simon v. Value Behavioral Health,

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Inc., 208 F.3d 1073, 1084 (9th Cir.), amended, 234 F.3d 428 (9th Cir.

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2000), cert. denied, 531 U.S. 1104 (2001), overruled on other grounds,

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Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir.), cert. denied, 552

Although the Court does not

Failure to file

See Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir.

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U.S. 985 (2007) (affirming dismissal without leave to amend where

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plaintiff failed to correct deficiencies in complaint, where court had

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afforded plaintiff opportunities to do so, and where court had given

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plaintiff notice of the substantive problems with his claims); Plumeau

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v. School District #40, County of Yamhill, 130 F.3d 432, 439 (9th Cir.

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1997) (denial of leave to amend appropriate where further amendment

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would be futile).

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IT IS SO ORDERED.

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DATED: February 17, 2016.

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_____________________________________
JOHN F. WALTER
UNITED STATES DISTRICT JUDGE

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PRESENTED this 16th day
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of February, 2016 by:
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/S/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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