Gerald Baros v. John San Bernardino County Deputy Sheriff Doe 1 et al

Filing 6

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Judge Manuel L. Real. 1. The Complaint is dismissed with leave to amend. If plaintiff intends to pursue this matter, he shall file a First Amended Complaint within twenty (20) days of the date of th is Order which cures the pleading defects set forth herein. The Clerk is directed to provide plaintiff with a Central District of California Civil Rights Complaint Form, CV-66, to facilitate plaintiff's filing of a First Amended Complaint if he elects to proceed in that fashion. 2. In the event plaintiff elects not to proceed with this action, he shall sign and return the attached Notice of Dismissal by the foregoing deadline which will result in the voluntary dismissal of this action without prejudice. See order for further details. (Attachments: # 1 Notice of Dismissal Form, # 2 Civil Rights Complaint Form) (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GERALD BAROS,

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Plaintiff,

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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.

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Case No. EDCV 17-948 R(JC)

SAN BERNARDINO COUNTY
DEPUTY SHERIFF JOHN DOE 1,
et al.

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Defendants.

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I.

BACKGROUND AND SUMMARY
On May 15, 2017, Gerald Baros (“plaintiff”), who is in custody, is

proceeding without a lawyer (i.e., “pro se”), and has been granted leave to proceed
in forma pauperis, filed a Civil Rights Complaint (“Complaint”) pursuant to
42 U.S.C. § 1983 (“Section 1983”) against six unnamed individual defendants
connected with the San Bernardino County Jail Glen Helen Facility where plaintiff
– apparently then a pretrial detainee – was formerly housed. More specifically,
plaintiff essentially claims that on or about June 22, 2013, San Bernardino County
Sheriff’s Department (“SBSD”) Deputies John Does 1-4, SBSD Deputy Jane Doe,
and SBSD Sergeant Doe – all of whom are sued in their individual capacities only –

1 subjected him to excessive force, failed to intervene when others subjected him to
2 excessive force, and acted to deter him from reporting the use of excessive force
3 against himself and others in violation of his Fourteenth Amendment right to due
4 process and his First Amendment right to seek redress for grievances. Plaintiff
5 seeks monetary and injunctive relief.
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As the Complaint is deficient in multiple respects, including those detailed

7 below, it is dismissed with leave to amend.
8 II.

PERTINENT LAW

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A.

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The Screening Requirement

As plaintiff is a prisoner proceeding in forma pauperis on a complaint against

11 a governmental defendant, the Court must screen the Complaint, and is required to
12 dismiss the case at any time it concludes the action is frivolous or malicious, fails to
13 state a claim on which relief may be granted, or seeks monetary relief against a
14 defendant who is immune from such relief. See 28 U.S.C.
15 §§ 1915(e)(2)(B), 1915A; 42 U.S.C. § 1997e(c).
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When screening a complaint to determine whether it states any claim that is

17 viable (i.e., capable of succeeding), the Court applies the same standard as it would
18 when evaluating a motion to dismiss under Federal Rule of Civil Procedure
19 12(b)(6). See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (citation
20 omitted). Rule 12(b)(6), in turn, is read in conjunction with Rule 8(a) of the Federal
21 Rules of Civil Procedure (“Rule 8”). Zixiang Li v. Kerry, 710 F.3d 995, 998-99
22 (9th Cir. 2013). Under Rule 8, a complaint must contain a “short and plain
23 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
24 8(a)(2). While Rule 8 does not require detailed factual allegations, at a minimum a
25 complaint must allege enough specific facts to provide both “fair notice” of the
26 particular claim being asserted and “the grounds upon which [that claim] rests.”
27 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007) (citation and
28 quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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1 (Rule 8 pleading standard “demands more than an unadorned, the-defendant2 unlawfully-harmed-me accusation”) (citing id. at 555).
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In addition, under Rule 10 of the Federal Rules of Civil Procedure (“Rule

4 10”), a complaint, among other things, must (1) state the names of “all the parties”
5 in the caption; and (2) state a party’s claims in sequentially “numbered paragraphs,
6 each limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P.
7 10(a), (b).
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Thus, to avoid dismissal, a complaint must “contain sufficient factual matter,

9 accepted as true, to state a claim to relief that is plausible on its face.” Nordstrom v.
10 Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (citations and quotation marks omitted). A
11 claim is “plausible” when the facts alleged in the complaint would support a
12 reasonable inference that the plaintiff is entitled to relief from a specific defendant
13 for specific misconduct. Iqbal, 556 U.S. at 678 (citation omitted). Allegations that
14 are “merely consistent with” a defendant’s liability, or reflect only “the mere
15 possibility of misconduct” do not “show[] that the pleader is entitled to relief” (as
16 required by Fed. R. Civ. P. 8(a)(2)), and thus are insufficient to state a claim that is
17 “plausible on its face.” Iqbal, 556 U.S. at 678-79 (citations and quotation marks
18 omitted). At this preliminary stage, “well-pleaded factual allegations” in a
19 complaint are assumed true, while “[t]hreadbare recitals of the elements of a cause
20 of action” and “legal conclusion[s] couched as a factual allegation” are not. Id.
21 (citation and quotation marks omitted); Jackson v. Barnes, 749 F.3d 755, 763 (9th
22 Cir. 2014) (“mere legal conclusions ‘are not entitled to the assumption of truth’”)
23 (quoting id.), cert. denied, 135 S. Ct. 980 (2015). In addition, the Court is “not
24 required to accept as true conclusory allegations which are contradicted by
25 documents referred to in the complaint,” Steckman v. Hart Brewing, Inc., 143 F.3d
26 1293, 1295-96 (9th Cir. 1998) (citation omitted), and “need not [] accept as true
27 allegations that contradict matters properly subject to judicial notice or by exhibit,”
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1 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), amended on denial
2 of reh’g, 275 F.3d 1187 (9th Cir. 2001) (citation omitted).
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Pro se complaints are interpreted liberally to give plaintiffs “the benefit of

4 any doubt.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation and
5 internal quotation marks omitted). If a pro se complaint is dismissed because it
6 does not state a claim, the court must freely grant “leave to amend” (that is, give the
7 plaintiff a chance to file a new, corrected complaint) if it is “at all possible” that the
8 plaintiff could fix the identified pleading errors by alleging different or new facts.
9 Cafasso v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1058 (9th Cir.
10 2011) (citation omitted); Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000)
11 (en banc) (citations and internal quotation marks omitted).
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B.

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To state a claim under Section 1983, a plaintiff must allege that a defendant,

Section 1983

14 while acting under color of state law, caused a deprivation of the plaintiff’s federal
15 rights. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988) (citations
16 omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted).
17 There is no vicarious liability in Section 1983 lawsuits. Iqbal, 556 U.S. at 676
18 (citing, inter alia, Monell v. Department of Social Services of the City of New
19 York, 436 U.S. 658, 691 (1978)). Hence, a government official – whether
20 subordinate or supervisor – may be held liable under Section 1983 only when his or
21 her own actions have caused a constitutional deprivation. OSU Student Alliance v.
22 Ray, 699 F.3d 1053, 1069 (9th Cir. 2012) (citing id.), cert. denied, 134 S. Ct. 70
23 (2013). Allegations regarding causation “must be individualized and focus on the
24 duties and responsibilities of each individual defendant whose acts or omissions are
25 alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d
26 628, 633 (9th Cir. 1988) (citations omitted).
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An individual “causes” a constitutional deprivation when he or she (1) “does

28 an affirmative act, participates in another’s affirmative acts, or omits to perform an
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1 act which he [or she] is legally required to do that causes the deprivation”; or
2 (2) “set[s] in motion a series of acts by others which the [defendant] knows or
3 reasonably should know would cause others to inflict the constitutional injury.”
4 Lacey v. Maricopa County, 693 F.3d 896, 915 (9th Cir. 2012) (en banc) (quoting
5 Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)) (quotation marks omitted).
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Similarly, a government official may be held individually liable under

7 Section 1983 for acts taken in a supervisory capacity, but only when the
8 supervisor’s own misconduct caused an alleged constitutional deprivation. See
9 Iqbal, 556 U.S. at 676, 677 (“Absent vicarious liability, each Government official,
10 his or her title notwithstanding, is only liable for his or her own misconduct.”);
11 OSU Student Alliance, 699 F.3d at 1069 (supervisor liable under Section 1983 only
12 if “he . . . engaged in culpable action or inaction himself”) (citing id. at 676). A
13 supervisor may “cause” a constitutional deprivation for purposes of Section 1983
14 liability, if he or she (1) personally participated in or directed a subordinate’s
15 constitutional violation; or (2) was not “physically present when the [plaintiff’s]
16 injury occurred,” but the constitutional deprivation can, nonetheless, be “directly
17 attributed” to the supervisor’s own wrongful conduct. See Starr v. Baca, 652 F.3d
18 1202, 1207 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012).
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C.

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The Due Process Clause of the Fourteenth Amendment protects pretrial

Excessive Force/Failure to Intervene

21 detainees from the use of excessive force that amounts to punishment. Graham v.
22 Connor, 490 U.S. 386, 395 n.10 (1989). Although the Supreme Court has not
23 expressly decided whether the Fourth Amendment’s prohibition on unreasonable
24 searches and seizures continues to protect individuals during pretrial detention, the
25 Ninth Circuit has determined that the Fourth Amendment sets the applicable
26 constitutional limitations for considering claims of excessive force during pretrial
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1 detention. Gibson v. County of Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002), cert.
2 denied, 537 U.S. 1106 (2003) (citation omitted).
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Under the Fourth Amendment, officers may only use such force as is

4 “objectively reasonable” in light of the facts and circumstances confronting them,
5 without regard to their underlying intent or motivation. Graham, 490 U.S. at 397.
6 Accordingly, the court must carefully balance the nature and quality of the intrusion
7 on the individual’s Fourth Amendment interests against the countervailing
8 governmental interests at stake to determine whether the force used was reasonable.
9 Id. at 396.
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As noted in Lolli v. County of Orange, 351 F.3d 410, 415 n.4 (9th Cir. 2003),

11 Graham directs courts to pay careful attention to the facts of the particular case,
12 including “‘the severity of the crime at issue, whether the suspect poses an
13 immediate threat to the safety of the officers or others, and whether he is actively
14 resisting arrest or attempting to evade arrest by flight,’” although “[i]n the context
15 of pretrial detention rather than arrest, it is clear that all the factors mentioned in
16 Graham . . . will not necessarily be relevant.” Gibson, 290 F.3d at 1197 & n.21
17 (quoting Graham, 490 U.S. at 396).
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A law enforcement or prison official who does not himself/herself use

19 excessive force, may nonetheless be liable as an “integral participant” if he/she has
20 “some fundamental involvement” in the use of excessive force. Rosales v. County
21 of Los Angeles, 650 Fed. Appx. 546, 549 (9th Cir. 2016) (citing Blankenhorn v.
22 City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) and Boyd v. Benton County,
23 374 F.3d 773, 780 (9th Cir. 2004)). In the same vein, a prison official can violate a
24 prisoner’s constitutional rights by failing to intervene to stop a beating. See Lolli,
25 351 F.3d at 418 (Failure of jail supervisor – who was present during subordinates’
26 alleged use of excessive force against pretrial detainee – to intervene to bring
27 subordinates under control could subject him to liability under Section 1983);
28 United States v. Robins v. Meechum, 60 F.3d 1436, 1442 (9th Cir. 1995) (“a prison

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1 official can violate a prisoner’s Eighth Amendment rights by failing to intervene”
2 when another official acts unconstitutionally).
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D.

First Amendment Right to Seek Redress

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Prisoners have a First Amendment right “to petition the government for a

5 redress of [] grievances” and, accordingly, “to file grievances against prison
6 officials.” Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011) (citation
7 omitted), abrogated on other grounds as stated in Richey v. Dahne, 807 F.3d 1202,
8 1209 n.6 (9th Cir. 2015); Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012).
9 This right to petition for the redress of grievances includes the specific right “to
10 meaningful access to the courts[.]” Silva, 658 F.3d at 1101-02; Bounds v. Smith,
11 430 U.S. 817, 821 (1977) (well-established that prisoners have a constitutional right
12 of access to the courts), abrogated in part on other grounds by, Lewis v. Casey, 518
13 U.S. 343, 354 (1996).
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The constitutional right of access to the courts generally requires prison

15 officials to ensure that prisoners have the “capability of bringing contemplated
16 challenges to sentences or conditions of confinement before the courts.” Lewis, 518
17 U.S. at 356. To that end, depending on the circumstances, prison officials may be
18 required affirmatively to “help prisoners exercise their rights” (e.g., provide
19 reasonable access to “adequate law libraries or adequate assistance from persons
20 trained in the law”), or simply to refrain from “active interference” in prisoner
21 litigation. Silva, 658 F.3d at 1102 (citation omitted).1
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Inmates do not, however, have a special First Amendment right to provide legal
assistance to fellow inmates. Shaw v. Murphy, 532 U.S. 223, 225-32 (2001); see also Manago v.
Gonzalez, 2012 WL 6628902, *9 (E.D. Cal. Dec. 19, 2012) (plaintiff’s communications assisting
fellow inmates with their legal activities not protected activity). Nor can inmates “vicariously
assert [First Amendment] protection on each other’s behalf.” Blaisdell v. Frappiea, 729 F.3d
1237, 1244 (9th Cir. 2013) (noting “it is far from clear that ‘the right to provide legal advice
follows from a right to receive legal advice’”); see also Hunter v. Heath, 26 Fed.Appx. 754, 755
(9th Cir. 2002) (“An inmate legal assistant does not have a clearly established right to assert the
claim of another inmate. . . .”).

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To state a viable denial of access claim, a prisoner/plaintiff must plausibly

2 allege that some official misconduct caused “actual injury” – that is, that it
3 frustrated or is impeding plaintiff’s attempt to bring a nonfrivolous legal claim.
4 Lewis, 518 U.S. at 348-49; Nevada Department of Corrections v. Greene, 648 F.3d
5 1014, 1018 (9th Cir. 2011) (citing id. at 349), cert. denied, 566 U.S. 911 (2012).
6 The plaintiff must describe his underlying claim, whether anticipated or lost, and
7 show that it is “nonfrivolous” and “arguable.” See Christopher v. Harbury, 536
8 U.S. 403, 415 (2002).
9 III.

DISCUSSION

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Here, the Complaint is deficient in at least the following respects:

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First, the Complaint violates Rule 10(a) because it does not name all of the

12 defendants in the pleading’s caption and instead, only generically refers in the
13 caption to “Six San Bernardino County Deputy Sheriff Does.” See, e.g., Ferdik v.
14 Bonzelet, 963 F.2d 1258, 1263 (9th Cir.) (affirming dismissal of action based on
15 failure to comply with court order that complaint be amended to name all
16 defendants in caption as required by Rule 10(a)), cert. denied, 506 U.S. 915 (1992).
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Second, the Complaint violates Rule 10(b) because all of the paragraphs

18 therein are not sequentially numbered. Although the Complaint initially contains
19 paragraphs numbered 1-44, the sequential numbering of the paragraphs ceases at
20 that point even though the Complaint continues on for several more pages and
21 paragraphs thereafter.
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Third, multiple paragraphs in the Complaint allege that defendants and/or

23 other individuals acted collectively to injure plaintiff. (See Complaint ¶¶ 23, 24,
24 43; Complaint at 12, 15). Such general and conclusory allegations against an
25 indistinguishable group of defendants do not demonstrate a causal link between any
26 individual defendant’s conduct and an alleged constitutional violation, and therefore
27 are insufficient to state a viable Section 1983 claim against any of the defendants.
28 See Baker v. McCollan, 443 U.S. 137, 142 (1979) (“[A] public official is liable
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1 under [Section] 1983 only ‘if he causes the plaintiff to be subjected to a deprivation
2 of his constitutional rights.’”) (citation omitted; emphasis in original); Jones v.
3 Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“In order for a person acting under
4 color of state law to be liable under section 1983 there must be a showing of
5 personal participation in the alleged rights deprivation[.]”). To state a viable
6 Section 1983 individual capacity claim plaintiff must, at a minimum, allege facts
7 which demonstrate the specific acts each individual defendant did and how that
8 individual’s alleged misconduct specifically violated plaintiff’s constitutional
9 rights.
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Fourth, to the extent plaintiff attempts to assert a First Amendment claim

11 predicated on prison officials attempting to deter him from assisting a fellow inmate
12 in such inmate’s pursuit of a grievance or lawsuit, he fails to state a claim upon
13 which relief may be granted. As noted above, petitioner has no protected First
14 Amendment right in assisting a fellow inmate to exercise such fellow inmate’s right
15 to redress grievances. See supra note 1.
16 IV.

ORDERS

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In light of the foregoing, IT IS HEREBY ORDERED:

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1.

The Complaint is dismissed with leave to amend. If plaintiff intends

19 to pursue this matter, he shall file a First Amended Complaint within twenty (20)
20 days of the date of this Order which cures the pleading defects set forth herein.2
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Any First Amended Complaint must: (a) be labeled “First Amended Complaint”; (b) be
complete in and of itself and not refer in any manner to the original Complaint – i.e., it must
include all claims on which plaintiff seeks to proceed (Local Rule 15-2); (c) contain a “short and
plain” statement of the claim(s) for relief (Fed. R. Civ. P. 8(a)); (d) make each allegation
“simple, concise and direct” (Fed. R. Civ. P. 8(d)(1)); (e) present allegations in sequentially
numbered paragraphs, “each limited as far as practicable to a single set of circumstances” (Fed.
R. Civ. P. 10(b)); (f) state each claim founded on a separate transaction or occurrence in a
separate count as needed for clarity (Fed. R. Civ. P. 10(b)); (g) set forth clearly the sequence of
events giving rise to the claim(s) for relief; (h) allege specifically what each defendant did and
how that defendant’s conduct specifically violated plaintiff’s civil rights; and (i) not change the
(continued...)

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1 The Clerk is directed to provide plaintiff with a Central District of California Civil
2 Rights Complaint Form, CV-66, to facilitate plaintiff’s filing of a First Amended
3 Complaint if he elects to proceed in that fashion.
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2.

In the event plaintiff elects not to proceed with this action, he shall

5 sign and return the attached Notice of Dismissal by the foregoing deadline which
6 will result in the voluntary dismissal of this action without prejudice.
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3.

Plaintiff is cautioned that, absent further order of the Court,

8 plaintiff’s failure timely to file a First Amended Complaint or Notice of
9 Dismissal, may be deemed plaintiff’s admission that amendment is futile, and
10 may result in the dismissal of this action with or without prejudice on the
11 grounds set forth above, on the ground that amendment is futile, for failure
12 diligently to prosecute and/or for failure to comply with the Court’s Order.
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IT IS SO ORDERED.

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16 DATED: July 25, 2017

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HONORABLE MANUEL L. REAL
UNITED STATES DISTRICT JUDGE

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(...continued)
nature of this suit by adding new, unrelated claims or defendants, cf. George v. Smith, 507 F.3d
605, 607 (7th Cir. 2007) (civil rights plaintiff may not file “buckshot” complaints – i.e., a
pleading that alleges unrelated violations against different defendants).

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