Donald Garcia Montelongo v. County of Riverside

Filing 12

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Kenly Kiya Kato,(SEE ORDER FOR DETAILS). (Attachments: # 1 Civil Rights Comp, # 2 Ntc of Dism) (vp)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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DONALD GARCIA MONTELONGO,
Plaintiff,

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Case No. EDCV 16-2477-PSG (KK)

v.

ORDER DISMISSING FIRST
AMENDED COMPLAINT WITH
LEAVE TO AMEND

COUNTY OF RIVERSIDE,
Defendant.

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I.

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INTRODUCTION

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Plaintiff Donald Garcia Montelongo (“Plaintiff”), proceeding pro se and in

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forma pauperis, has filed a First Amended Complaint (“FAC”) pursuant to Title

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42 of the United States Code, section 1983 (“Section 1983”) alleging violations of

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his Fourth and Fourteenth Amendment rights based upon an alleged use of

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excessive force. As discussed below, the Court dismisses the FAC with leave to

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amend for failure to state a claim.

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II.

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PROCEDURAL HISTORY

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On December 1, 2016, Plaintiff filed a Complaint (“Complaint”) pursuant to
Section 1983, which appeared to sue Defendant County of Riverside for violations

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of Plaintiff’s Fourth and Fourteenth Amendment rights based upon an alleged use

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of excessive force. See ECF Docket No. (“Dkt.”) 1, Compl.

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On December 6, 2016, the Court dismissed the Complaint with leave to

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amend for failure to comply with Federal Rules of Civil Procedure 10(a) and

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12(b)(6). Dkt. 7, Order. The Court found the Complaint did not unambiguously

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identify defendants because Plaintiff listed County of Riverside as a single

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defendant, but presented an additional cause of action against inmate Tyler. Id. at

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4. The Court further found Plaintiff (1) failed to state an excessive force claim

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against inmate Tyler because he is a private citizen, and (2) failed to state a Monell

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claim against Defendant County of Riverside because Plaintiff did not present facts

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that plausibly suggested state action pursuant to an unconstitutional policy,

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practice, or custom. Id. at 5-6. Lastly, the Court found it was unable to determine

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whether Plaintiff was confined as the result of a criminal conviction, or whether he

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was a pretrial detainee at the time of the alleged incident, thereby preventing it

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from deciphering the nature of Plaintiff’s claims. Id. at 5.

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On December 12, 2016, Plaintiff filed the instant FAC against Defendant
County of Riverside. Dkt. 11, FAC.

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III.

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ALLEGATIONS IN FAC

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In the FAC, Plaintiff appears to present a single claim against inmate Tyler.

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Id. Plaintiff again alleges he was “brutely [sic] attacked” by inmate Tyler. Id. at 5.

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Plaintiff claims he was “being punch kicked, while being also held against [his]

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will.” Id. As a result of this violence, Plaintiff alleges he “suffered severe head and

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back injuries.” Id.

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Plaintiff additionally claims inmate Tyler “wasn’t in compliance with

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Banning Jail Rules of procedures,” nor was inmate Tyler “assigned any or at all

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medication in an [sic] medication dorm (area).” Id. Plaintiff claims inmate Tyler

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“wasn’t screened well” and Plaintiff was not “screened and place[d] in an [sic]

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suitable manner to fit [his] needs.” Id. at 5-6.
As a result of his injuries, Plaintiff seeks general and punitive damages

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amounting to $600,000.

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IV.

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STANDARD OF REVIEW

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As Plaintiff is proceeding in forma pauperis, the Court must screen the

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Complaint and is required to dismiss the case at any time if it concludes the action

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is frivolous or malicious, fails to state a claim on which relief may be granted, or

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seeks monetary relief against a defendant who is immune from such relief. 28

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U.S.C. § 1915(e)(2)(B); see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

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1998).

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In determining whether a complaint fails to state a claim for screening

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purposes, the Court applies the same pleading standard from Rule 8 of the Federal

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Rules of Civil Procedure (“Rule 8”) as it would when evaluating a motion to

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dismiss under Federal Rule of Civil Procedure 12(b)(6). See Watison v. Carter,

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668 F.3d 1108, 1112 (9th Cir. 2012). Under Rule 8(a), a complaint must contain a

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“short and plain statement of the claim showing that the pleader is entitled to

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relief.” Fed. R. Civ. P. 8(a)(2).

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A complaint may be dismissed for failure to state a claim “where there is no

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cognizable legal theory or an absence of sufficient facts alleged to support a

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cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007)

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(citation omitted). In considering whether a complaint states a claim, a court must

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accept as true all of the material factual allegations in it. Hamilton v. Brown, 630

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F.3d 889, 892-93 (9th Cir. 2011). However, the court need not accept as true

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“allegations that are merely conclusory, unwarranted deductions of fact, or

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unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th

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Cir. 2008) (citation omitted). Although a complaint need not include detailed
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factual allegations, it “must contain sufficient factual matter, accepted as true, to

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‘state a claim to relief that is plausible on its face.’” Cook v. Brewer, 637 F.3d

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1002, 1004 (9th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.

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1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it “allows the

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court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. (citation omitted).
“A document filed pro se is to be liberally construed, and a pro se complaint,

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however inartfully pleaded, must be held to less stringent standards than formal

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pleadings drafted by lawyers.” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir.

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2008) (citations and internal quotation marks omitted). “[W]e have an obligation

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where the p[laintiff] is pro se, particularly in civil rights cases, to construe the

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pleadings liberally and to afford the p[laintiff] the benefit of any doubt.” Akhtar v.

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Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation omitted).
If the court finds the complaint should be dismissed for failure to state a

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claim, the court has discretion to dismiss with or without leave to amend. Lopez v.

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Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted

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if it appears possible the defects in the complaint could be corrected, especially if

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the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103,

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1106 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint

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cannot be cured by amendment, the court may dismiss without leave to amend.

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Cato, 70 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th

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Cir. 2009).

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V.

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DISCUSSION

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A.

PLAINTIFF FAILS TO STATE AN EXCESSIVE FORCE CLAIM

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AGAINST INMATE TYLER

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(1)

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A Section 1983 plaintiff bears the burden of pleading and proving two

APPLICABLE LAW

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essential elements: (1) conduct that deprived him or her of a right, privilege, or

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immunity protected by the Constitution or laws of the United States; and (2) the

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alleged deprivation was committed by a person acting under the color of state law. See

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West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988) (emphasis

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added). Courts “start with the presumption that private conduct does not

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constitute governmental action.” Sutton v. Providence St. Joseph Medical Ctr.,

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192 F.3d 826, 835 (9th Cir. 1999); Price v. State of Hawaii, 939 F.2d 702, 707–08

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(9th Cir. 1991) (“[P]rivate parties are not generally acting under color of state law. .

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. .”).

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(2)

ANALYSIS

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Here, Plaintiff still seeks to sue inmate Tyler who is a private party who was

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not acting under color of state law during the alleged incident. While Plaintiff now

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alleges inmate Tyler was not “in compliance with Banning Jail Rules of

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procedures”; “screened well”; or “assigned any or at all medication in an [sic]

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medication dorm (area),” id. at 5-6, absent an allegation that inmate Tyler was a

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“willful participant in a joint activity with the State or its agents,” Plaintiff’s

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Section 1983 claim against inmate Tyler fails. See United States v. Price, 383 U.S.

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787, 794, 86 S. Ct. 1152, 16 L. Ed. 2d 267 (1966); Johnson v. Knowles, 113 F.3d

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1114, 1118-20 (9th Cir. 1997), cert. denied, 522 U.S. 996, 118 S. Ct. 559, 139 L. Ed.

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2d 401 (1997) (describing the standards for finding that private person acted under

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color of law).

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B.

IF PLAINTIFF CHOOSES TO PURSUE AN EXCESSIVE FORCE

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CLAIM, HE MUST IDENTIFY WHETHER HE WAS A

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SENTENCED INMATE OR PRETRIAL DETAINEE

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(1)

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After arraignment, the Due Process Clause of the Fourteenth Amendment

APPLICABLE LAW

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protects pretrial detainees from excessive force that amounts to punishment.

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Kingsley v. Hendrickson, __ U.S. __, 135 S. Ct. 2466, 2473, 192 L. Ed. 2d 416

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(2015) (citing Graham v. Connor, 490 U.S. 386, 395 n.10, 109 S. Ct. 1865, 104 L.

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Ed. 2d 443 (1989)). After conviction, the Cruel and Unusual Punishment Clause of

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the Eighth Amendment governs the use of force against a prisoner. Whitley v.

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Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986). See also Kirby

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v. Navarro, No. 2:14-cv-9161 PSG (GJS), 2015 WL 5169270, at *3 (C.D. Cal. July

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28, 2015) report and recommendation adopted, 2015 WL 5167926 (C.D. Cal. Sept.

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2, 2015).

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(2)

ANALYSIS

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Here, despite this Court’s directives in its prior order, it still remains unclear

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whether Plaintiff was confined as the result of a criminal conviction, or whether he

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was a pretrial detainee at the time of the alleged incident. As a result of the FAC’s

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lack of clarity and specificity, the Court cannot decipher the nature of Plaintiff’s

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claims. Unclear pleadings, such as the Complaint, that “leav[e] it to the Court to

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figure out what the full array of [Plaintiff’s] claims [are] and upon what federal law,

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and upon what facts, each claim is based” remain subject to dismissal. Little v.

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Baca, No. CV 13–0373 PA (RZ), 2013 WL 436018, at *3 (C.D. Cal. Feb. 1, 2013). If

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Plaintiff chooses to pursues an excessive force claim, he must – at a minimum –

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specify his custodial status.

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VI.

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LEAVE TO FILE A SECOND AMENDED COMPLAINT

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For the foregoing reasons, the FAC is subject to dismissal. As the Court is

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unable to determine whether amendment would be futile, leave to amend is

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granted. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per

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curiam).

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Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the
service date of this Order, Plaintiff choose one of the following two options:
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Plaintiff may file a Second Amended Complaint to attempt to cure the

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deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a

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blank Central District civil rights complaint form to use for filing the Second

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Amended Complaint, which the Court encourages Plaintiff to use.

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If Plaintiff chooses to file a Second Amended Complaint, Plaintiff must

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clearly designate on the face of the document that it is the “Second Amended

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Complaint,” it must bear the docket number assigned to this case, and it must be

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retyped or rewritten in its entirety, preferably on the court-approved form. Plaintiff

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shall not include new defendants or new allegations that are not reasonably related

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to the claims asserted in the FAC. In addition, the Second Amended Complaint

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must be complete without reference to the FAC or any other pleading, attachment,

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or document.

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An amended complaint supersedes the preceding complaint. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will

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treat all preceding complaints as nonexistent. Id. Because the Court grants

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Plaintiff leave to amend as to all his claims raised here, any claim raised in a

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preceding complaint is waived if it is not raised again in the Second Amended

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Complaint. Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012).

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Alternatively, Plaintiff may voluntarily dismiss the action without

prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court
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is directed to mail Plaintiffs a blank Notice of Dismissal Form, which the

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Court encourages Plaintiffs to use.

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The Court advises Plaintiff that it generally will not be well-disposed toward

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another dismissal with leave to amend if Plaintiff files a Second Amended

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Complaint that continues to include claims on which relief cannot be granted. “[A]

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district court’s discretion over amendments is especially broad ‘where the court

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has already given a plaintiff one or more opportunities to amend his complaint.’”

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Ismail v. County of Orange, 917 F. Supp.2d 1060, 1066 (C.D. Cal. 2012) (citations

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omitted); see also Ferdik, 963 F.2d at 1261. Thus, if Plaintiff files a Second

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Amended Complaint with claims on which relief cannot be granted, the

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Second Amended Complaint will be dismissed without leave to amend and

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with prejudice.

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Plaintiff is explicitly cautioned that failure to timely file a Second

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Amended Complaint will result in this action being dismissed with prejudice

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for failure to state a claim, prosecute and/or obey Court orders pursuant to

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Federal Rule of Civil Procedure 41(b).

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Dated: December 22, 2016
HONORABLE KENLY KIYA KATO
United States Magistrate Judge

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