Joseph Patrick Roman Simon v. John McMahon et al

Filing 9

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Judge R. Gary Klausner, 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. Although the Court does not necessarily deem insufficient all of Plaintiff's claims, the Court does require that any First Amended Complaint be complete in itself and not refer in any manner to any prior complaint. Failure to file timely a First Amended Complaint may result in the dismissal of this action. (dml)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JOSEPH PATRICK ROMAN SIMON, ) NO. ED CV 16-2007-RGK(E) ) Plaintiff, ) ) v. ) ORDER DISMISSING COMPLAINT ) JOHN McMAHON, Sheriff, ) WITH LEAVE TO AMEND et al., ) ) Defendants. ) ______________________________) 17 18 19 For the following reasons, the Complaint is dismissed with leave to amend. See 28 U.S.C. § 1915(e)(2)(B). 20 21 BACKGROUND 22 23 Plaintiff, an inmate at the West Valley Detention Center 24 (“WVDC”), filed this civil rights action on September 20, 2016, 25 pursuant to 42 U.S.C. section 1983. 26 San Bernardino; (2) San Bernardino County Sheriff John McMahon; 27 (3) WVDC Commander Jeff Rose; (4) WVDC Facility Commander Chris 28 Fisher; (5) Sheriff Sergeant J. Steer; (6) Deputy C. Zaragoza; and Defendants are: (1) the County of 1 (7) fifty fictitious “John Doe” Defendants.1 2 individual Defendants in their individual and official capacities 3 (Complaint, p. 9, ¶ 19). Plaintiff sues the 4 5 Also on September 20, 2016, Plaintiff filed a “Motion for 6 Extension of Time” to file exhibits to the Complaint, which the Court 7 granted on September 23, 2016. 8 Complaint on September 30, 2016. 9 and the exhibits together to constitute Plaintiff’s Complaint. Plaintiff filed exhibits to the The Court considers the Complaint 10 11 SUMMARY OF PLAINTIFF’S ALLEGATIONS 12 13 The Complaint contains four claims for relief pursuant to section 14 1983, styled “causes of action,” as well as general allegations of 15 conspiracy (see id., p. 17, ¶ 35). 16 however, identifies claims for: (1) violation of the First Amendment; 17 (2) violation of the Fourth Amendment; (3) violation of due process; 18 (4) violation of the Prison Rape Elimination Act, 42 U.S.C. section 19 15601 et seq.; (5) violation of equal protection; (6) conspiracy to 20 violate civil rights pursuant to 42 U.S.C. section 1985; (7) “neglect 21 to prevent civil rights violation” pursuant to 42 U.S.C. section 1986; 22 (8) a violation of “the Bill of Rights”; and (9) a claim pursuant to The title of the Complaint, 23 24 25 26 27 28 1 A plaintiff may name a fictitious defendant in his or her complaint if the plaintiff does not know the true identity of the defendant prior to the filing of the complaint. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). However, Plaintiff should be aware that before the United States Marshal can serve process on any fictitiously named Defendant, Plaintiff must provide identifying information sufficient to permit the service of process, such as the Defendant’s full name and address. 2 1 the Federal Tort Claims Act, 28 U.S.C. section 1346 and section 2671 2 et seq. (“FTCA”) (Complaint, pp. 1-2). 3 action” do not necessarily correspond to the nine claims identified in 4 the title of the Complaint. The four pleaded “causes of 5 6 In the First Cause of Action, Plaintiff alleges that, during a 7 cell search on or about December 22, 2015, Defendant Zaragoza 8 conducted a pat-down search of Plaintiff during which Zaragoza 9 allegedly fondled Plaintiff’s genitalia and left buttock (Complaint, 10 p. 10, ¶ 21). Plaintiff allegedly informed Defendant Speer, who 11 assertedly did not want to speak to Plaintiff and “overlooked” 12 Defendant Zaragoza’s alleged misconduct (id.). 13 14 The Second Cause of Action alleges that, on or about December 24, 15 2015, Defendant Zaragoza and his partner “John Doe” retaliated against 16 Plaintiff for filing a grievance concerning the alleged sexual 17 fondling by assertedly confiscating Plaintiff’s property on the 18 allegedly false ground that Plaintiff was not a “pro-per” inmate (id., 19 p. 11, ¶ 23). 20 21 The Third Cause of Action alleges that, on or about December 29, 22 2015, Defendant Zaragoza and his partner “John Doe” subjected 23 Plaintiff to excessive force by allegedly placing overly tight 24 handcuffs on Plaintiff and also assertedly retaliated against 25 Plaintiff by stealing Plaintiff’s property (id., pp. 13-14, ¶ 25). 26 27 28 The Fourth Cause of Action alleges that, on or about December 30, 2015, Defendant Zaragoza and two fictitious “John Doe” Defendants 3 1 retaliated against Plaintiff for filing a grievance by telling 2 Plaintiff to “roll up” his property to transfer Plaintiff to a 3 different housing location (id., pp. 15-16, ¶ 27). 4 assertedly was placed in the “hole” and charged with a disciplinary 5 violation, allegedly in retaliation for exercising his constitutional 6 right to file a complaint (id.). 7 was dismissed as untimely (id.). Plaintiff then The disciplinary charge allegedly 8 9 Plaintiff alleges that the County of San Bernardino failed to 10 train and supervise its officers and condoned and failed to correct 11 the alleged wrongdoing (id., p. 19, ¶ 38). 12 Rose allegedly were responsible for the actions of the subordinates, 13 failed to investigate the alleged wrongdoing and failed to discipline 14 to alleged offenders (id., pp. 19-20, ¶ 39). 15 declaratory relief, general damages in the sum of $5 million and 16 punitive damages in a like sum (id., p. 17, ¶¶ 29-30, pp. 22-23, ¶¶ 17 46-49). Defendants McMahon and Plaintiff seeks 18 19 DISCUSSION 20 21 The Complaint fails to state a claim against Defendants McMahon 22 and Rose. A supervisor is not liable under section 1983 on a theory 23 of respondeat superior. 24 (2009) 25 unconstitutional conduct of their subordinates on a theory of 26 respondeat superior”). 27 own misconduct,” and is not “accountable for the misdeeds of [his or 28 her] agents.” See Ashcroft v. Iqbal, 556 U.S. 662, 676 (“Government officials may not be held liable for the A supervisor “is only liable for his or her Id. at 677. Mere knowledge of a subordinate’s alleged 4 1 misconduct is insufficient. Id. 2 3 A supervisor may be held liable in his or her individual capacity 4 “for [his or her] own culpable action or inaction in the training, 5 supervision or control of [his or her] subordinates.” 6 of Oakland, Cal., 145 F.3d 1087, 1093 (9th Cir. 1998) (quoting Larez 7 v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)). 8 a claim against any individual defendant, a plaintiff must allege 9 facts showing that the individual defendant participated in or Watkins v. City To state 10 directed the alleged violation, or knew of the violation and failed to 11 act to prevent it. 12 Cir. 1998), cert. denied, 525 U.S. 1154 (1999) (“A plaintiff must 13 allege facts, not simply conclusions, that show that an individual was 14 personally involved in the deprivation of his civil rights.”). 15 Complaint alleges no facts, as distinguished from conclusions, showing 16 the personal involvement of Defendants McMahon or Rose in any of the 17 alleged wrongdoing. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th The 18 19 To the extent Plaintiff purports to allege a claim for violation 20 of the Prison Rape Elimination Act, 42 U.S.C. section 15601 et seq., 21 any such claim is insufficient. 22 not create a private right of action. 23 App’x 231, 232-33 (5th Cir.), cert. denied, 136 S. Ct. 238 (2015); 24 Olive v. Harrington, 2016 WL 4899177, at *4 (E.D. Cal. Sept. 14, 25 2016); Gonzalez v. Chriese, 2016 WL 3231284, at *4 (N.D. Cal. June 13, 26 2016); Davis v. Riverside County Sheriff’s Dep’t, 2016 WL 1642558, at 27 *4 (C.D. Cal. Apr. 25, 2016). 28 /// The Prison Rape Elimination Act does 5 See Krieg v. Steele, 599 Fed. 1 To the extent Plaintiff purports to allege a claim for conspiracy 2 to violate civil rights pursuant to 42 U.S.C. section 1985, 3 Plaintiff’s conclusory conspiracy allegations are insufficient. 4 Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 929-30 (9th Cir. 5 2004); see also Wisdom v. Katz, 539 Fed. App’x 704, 705 (9th Cir. 6 2013). 7 Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 8 1988) (“A claim can be stated under section 1986 only if the complaint 9 contains a valid claim under section 1985.”) (citation omitted). For the same reason, any section 1986 claim also fails. See See 10 11 To the extent Plaintiff purports to assert an FTCA claim based on 12 alleged constitutional violations, the FTCA provides no remedy for 13 constitutional violations. 14 78 (1994). 15 suits against the United States regarding torts committed by federal 16 officials, not state officials.” 17 at *4 (S.D. Ill. Nov. 16, 2015); see Logue v. United States, 412 U.S. 18 521 (1973). 19 action. See Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 20 1995). Plaintiff does not sue any federal officials or allege any 21 claim against the United States. See F.D.I.C. v. Meyer, 510 U.S. 471, 477- Furthermore, the FTCA generally “provides jurisdiction for Miller v. Madigan, 2015 WL 7178431, The United States is the only proper defendant in an FTCA 22 23 ORDER 24 25 For the foregoing reasons, the Complaint is dismissed with leave 26 to amend. If Plaintiff still wishes to pursue this action, he is 27 granted thirty (30) days from the date of this Order within which to 28 file a First Amended Complaint. Although the Court does not 6 1 necessarily deem insufficient all of Plaintiff’s claims, the Court 2 does require that any First Amended Complaint be complete in itself 3 and not refer in any manner to any prior complaint. 4 timely a First Amended Complaint may result in the dismissal of this 5 action. 6 2002), cert. denied, 538 U.S. 909 (2003) (court may dismiss action for 7 failure to follow court order); Simon v. Value Behavioral Health, 8 Inc., 208 F.3d 1073, 1084 (9th Cir.), amended, 234 F.3d 428 (9th Cir. 9 2000), cert. denied, 531 U.S. 1104 (2001), overruled on other grounds, Failure to file See Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 10 Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir.), cert. denied, 552 11 U.S. 985 (2007) (affirming dismissal without leave to amend where 12 plaintiff failed to correct deficiencies in complaint, where court had 13 afforded plaintiff opportunities to do so, and where court had given 14 plaintiff notice of the substantive problems with his claims); Plumeau 15 v. School District #40, County of Yamhill, 130 F.3d 432, 439 (9th Cir. 16 1997) (denial of leave to amend appropriate where further amendment 17 would be futile). 18 19 IT IS SO ORDERED. 20 21 DATED: October 13, 2016 22 23 _____________________________________ R. GARY KLAUSNER UNITED STATES DISTRICT JUDGE 24 25 PRESENTED this 7th day 26 of October, 2016 by: 27 /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 28 7

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