Telles v. Stanislaus County Sheriff's Department et al

Filing 20

FINDINGS and RECOMMENDATIONS recommending that This Action be Dismissed signed by Magistrate Judge Jennifer L. Thurston on 5/24/2011. Objections to F&R due by 6/9/2011. (Leon-Guerrero, A)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

16

) Case No.: 1:10-cv-01911 AWI JLT
)
Plaintiff,
) FINDINGS AND RECOMMENDATION THAT
) THIS ACTION BE DISMISSED
v.
)
)
STANISLAUS COUNTY SHERIFF’S
)
DEPARTMENT, et al.,
)
)
Defendants.
)
_______________________________________ )

17

Henry William Telles, Jr. (“Plaintiff”) is proceeding pro se and in forma pauperis in this civil

12
13
14
15

HENRY WILLIAM TELLES, JR.,

18

rights action pursuant to 42 U.S.C. § 1983. Plaintiff asserts this action against Stanislaus County,

19

Deputy Burns, Deputy Stevens, Officer Daley, and Does 1-100 (collectively, “Defendants”). (Doc.

20

19 at 1). For the following reasons, the Court recommends that this action be DISMISSED.

21

I. Procedural History

22

Plaintiff commenced this action on October 13, 2010 (Doc. 1), which the Court screened and

23

dismissed with leave to amend on November 24, 2010 (Doc. 5). He filed his First Amended

24

Complaint on December 20, 2010. (Doc. 6). The Court determined again that Plaintiff failed to

25

state a claim upon which relief could be granted, dismissed the complaint and granted leave to

26

amend the pleadings. (Doc. 7). Following the Court’s order to show cause why the matter should

27

not be dismissed based upon his failure to prosecute his action and his failure to file an amended

28

complaint, Plaintiff filed his Second Amended Complaint on January 31, 2011 (Doc. 11), and his
1

1

Third Amended Complaint on February 8, 2011. (Doc. 12). On February 17, 2011, the Court

2

dismissed Plaintiff’s Second Amended Complaint because it was superseded by the Third Amended

3

Complaint, and dismissed the Third Amended Complaint for failure to state a claim. (Doc. 13).

4

Plaintiff was ordered to file an amended complaint, addressing the deficiencies identified by the

5

Court, within 21 days of service, or by March 10, 2011. (Doc. 13 at 16).

6

Plaintiff failed to file an amended complaint, and on March 14, 2011, the Court issued a

7

second order to show cause why the action should not be dismissed or requiring Plaintiff to file his

8

fourth amended complaint. (Doc. 14). When Plaintiff failed to respond, the Court issued Findings

9

and Recommendations that the action be dismissed based upon Plaintiff’s failure to prosecute the

10

matter and upon his failure to comply with the Court’s orders. (Doc. 15). On March 31, 2011,

11

Plaintiff filed his response to the order to show cause and asserted that he did not receive the Court’s

12

order dismissing the Third Amended Complaint. (Doc. 16).

13

On April 6, 2011, the Court withdrew the Findings and Recommendations, and directed that

14

the Court’s order that dismissed the Third Amended Complaint be re-served to Plaintiff. (Doc. 17).

15

In addition, the Court granted Plaintiff 14 days, or until April 20, 2011, to file his amended

16

complaint. Id. at 3. Plaintiff filed his Fourth Amended Complaint1 on April 26, 2011. (Doc. 19).

17

II. Screening Requirement

18

When a prisoner seeks relief against “a governmental entity or officer or employee of a

19

governmental entity,” the Court is required to review the complaint and identify “cognizable claims.”

20

28 U.S.C § 1915(a)-(b). The Court must screen Plaintiff’s Fourth Amended Complaint because the

21

amended complaint supersedes Plaintiff’s previously filed complaints. See Forsyth v. Humana, Inc.,

22

114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

23

The Court must dismiss a complaint, or portion of the complaint, if it is “frivolous, malicious

24

or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a

25

defendant who is immune from such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2). A

26

claim is frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible,

27
28

1

The caption reads Fifth Amended Complaint, but review of the Court docket indicates this is Plaintiff’s fourth
amended pleading in the action. Therefore, the Court will refer to the document as the “Fourth Amended Complaint.”

2

1

whether or not there are judicially noticeable facts available to contradict them.” Denton v.

2

Hernandez, 504 U.S. 25, 32-33 (1992). In determining malice, the Court examines whether the

3

claims are pled in good faith. Kinney v. Plymouth Rock Squab. Co., 236 U.S. 43, 46 (1915).

4

III. Pleading Standards

5

General rules for pleading complaints are governed by the Federal Rules of Civil Procedure.

6

A pleading stating a claim for relief must include a statement affirming the court’s jurisdiction, “a

7

short and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for

8

the relief sought, which may include relief in the alternative or different types of relief.”

9

Fed.R.Civ.P. 8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held

10

to “less stringent standards” than pleadings drafted by attorneys. Haines v. Kerner, 404 U.S. 519,

11

520-21 (1972).

12

A complaint must give fair notice and state the elements of the plaintiff’s claim in a plain and

13

succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The

14

purpose of the complaint is to give the defendant fair notice of the claims against him, and the

15

grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

16

Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673

17

F.2d 266, 268 (9th Cir. 1982). The Supreme Court clarified that,

18
19
20
21

[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face. A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of
entitlement to relief.

22
23

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted).

24

Where the factual allegations are well-pled, a court should assume their truth and determine whether

25

the facts would make the plaintiff entitled to relief; conclusions in the pleading are not entitled to the

26

same assumption of truth. Id. If the Court determines the plaintiff fails to state a cognizable claim,

27

the Court may grant leave to amend to the extent that deficiencies of the complaint can be cured by

28

an amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).
3

1

IV. § 1983 Claims

2

Section 1983 of title 42 of the United States Code does not provide for substantive rights; it is “a

3

method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271

4

(1994). In pertinent part, § 1983 states:

5
6
7

Every person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress…

8
9

42 U.S.C. § 1983. To plead a § 1983 violation, a plaintiff must allege facts from which it may be

10

inferred that (1) he was deprived of a federal right, and (2) a person who committed the alleged

11

violation acted under color of state law. West v. Atkins, 487 U.S. 42, 28 (1988); Williams v. Gorton,

12

529 F.2d 668, 670 (9th Cir. 1976). In addition, a plaintiff must allege that he suffered a specific

13

injury, and show causal relationship between the defendant’s conduct and the injury suffered by the

14

plaintiff. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976); Johnson v. Duffy, 588 F.2d 740,

15

743 (9th Cir. 1978) (a person deprives another of a federal right “if he does an affirmative act,

16

participates in another’s affirmative acts, or omits to perform an act which he is legally required to

17

do so that it causes the deprivation of which complaint is made”). As with other complaints,

18

conclusory allegations unsupported by facts are insufficient to state a civil rights claim under § 1983.

19

Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977).

20

Discussion and Analysis

21

Plaintiff asserts that he was a pre-trial detainee at the Public Safety Center, and under the

22

custody of Stanislaus County at all times relevant to this action. (Doc. 19 at 2). According to

23

Plaintiff, he received threats from individuals against whom he was to testify, and because of this, he

24

“stated in open court his Classification would be that of an inmate in Protective Custody.” Id. at 5.

25

Plaintiff alleges also that his parents “contacted the jail authorities and shared their grave concerns”

26

regarding his safety, and that “warnings were issued to government officials by the Defense Attorney

27

and . . . even by the Prosecutor.” Id. at 12-13.

28
4

1

Plaintiff alleges that he was “viciously and brutally attacked and beaten” by general

2

population inmates on two separate occasions, “the first episode occurring approximately mid

3

August . . . 2009 and the second occurring around October 2009.” (Doc. 19 at 5). Plaintiff states he

4

was placed in a six-man holding cell with nine general population inmates and implies that some of

5

these inmates may have defendants in the case against whom he was to testify.2 Id. at 6. Plaintiff

6

alleges two inmates “maneuver[ed] their loosely fastened chains” and attacked him, “whipping their

7

chains in a circular motion striking Plaintiff about the face, head, back and neck repeatedly.” Id. at

8

6-7, 11. Plaintiff said he “incurred substantial cuts and bruises.” Id. at 7. After the attack, “several

9

other inmates summoned assistance for the bloody and beaten Plaintiff.” Id. at 8. He claims that he

10

was given a note that threatened him if he reported who had attacked him. Id. As a result, he

11

requested the “officials” place him in protective custody but this request was denied. Id. Though

12

assistance was requested for him by other inmates after the beating (Id. at 8), Plaintiff states that he

13

was not provided medical care. Id. at 13.

14

In the second attack, Plaintiff asserts three inmates, including two who attacked him the first

15

time also, used their chain-link restraints to beat Plaintiff “in much the same manner” as in the first

16

attack. Id. at 11. Plaintiff alleges that he was not provided medical care after the second incident.

17

Id. at 13. Plaintiff believed a request for medical care would be denied, as it was after the first

18

attack, and as a result, “[o]n this occasion, Plaintiff did not ask for any assistance.” Id. at 21.

19

However, Plaintiff asserts “at least one uninvolved inmate expressed his grave concern for Plaintiff .

20

. . [and] pleaded with jailers to transport [Plaintiff] to the local [h]ospital.” Id.

21

Given these facts, Plaintiff raises causes of action for violations of his rights as guaranteed by

22

the Eighth and Fourteenth Amendments, negligence, and infliction of emotional distress.

23

///

24

///

25

///

26
2

27
28

Plaintiff alleges that his placement in the cell with the general population inmates, “exposed Plaintiff to confront
the persons sought by his classification to avoid, by inmates he was to testify against.” (Doc. 19 at 6) This jumble of words
is unclear whether the inmates against whom he would testify were actually in the holding cell or if his housing situation
placed him at risk of having contact with them.

5

1

A. Protections of the Eighth and Fourteenth Amendments

2

Plaintiff was a pre-trial detainee at the time of the events that form the basis of his

3

complaint.3 (Doc. 19 at 2). Therefore, the proper analysis of Plaintiff’s complaint of deliberate

4

indifference is under “the more protective substantive due process standard” of the Fourteenth

5

Amendment, rather than the Eighth Amendment. Jones v. Blanas, 393 F.3d 918, 931-33 (9th Cir.

6

2004); see also Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Eighth Amendment scrutiny is

7

appropriate only after the State has complied with the constitutional guarantees traditionally

8

associated with criminal prosecutions”); Gibson v. County of Washoe, 290 F.3d 1174, 1187 (9th Cir.

9

2002) (“Because [the plaintiff] had not been convicted of a crime, but had only been arrested, his

10

rights derive from the due process clause rather than the Eighth Amendment’s protection against

11

cruel and unusual punishment”). Therefore, the claims brought under the Eighth Amendment are

12

recommended to be DISMISSED.

13

However, with issues related to health and safety, “the due process clause imposes, at a

14

minimum, the same duty the Eighth Amendment imposes.” Gibson, 290 F.3d at 1187. Therefore,

15

the requisite standard of care afforded Plaintiff under the Fourteenth Amendment may be determined

16

by applying the standards set forth by the Eighth Amendment.

17

1. Adequate medical care

18

Prisoners must rely upon officials for medical care, and as a result “deliberate indifference to

19

serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain . . .

20

proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal citation

21

and quotation marks omitted). To state a cognizable claim of inadequate medical care, Plaintiff

22

“must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious

23

medical needs.” Id. at 106.

24

///

25

///

26
3

27
28

Nevertheless, Plaintiff alleges that he was in the custody of both the County of Stanislaus and the State of California.
However, Plaintiff fails to allege how it was possible for him to be in the custody of both entities at the same time. Moreover,
given Plaintiff admits that he was housed “at the SAFETY CENTER, located in M odesto, in the County of Stanislaus a
detention facility,” the Court is at a loss to understand how he was also in the custody of the State of California.

6

Serious medical need

1
2

A serious medical need exists “if the failure to treat the prisoner’s condition could result in

3

further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin v. Smith,

4

974 F.2d 1050, 1059 (9th Cir. 1991) (overruled on other grounds by WMX Techs., Inc. v. Miller, 104

5

F.3d 1133, 1136 (9th Cir. 1997)), quoting Estelle, 429 U.S. at 104. Indications of a serious medical

6

need include “[t]he existence of an injury that a reasonable doctor or patient would find important

7

and worthy of comment or treatment; the presence of a medical condition that significantly affects an

8

individual’s daily activities; or the existence of chronic and substantial pain.” Id. at 1059-60, citing

9

Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990).

10

In this case, Plaintiff alleges his attackers struck him “about the face, head, back and neck

11

repeatedly,” which caused “substantial cuts and bruises from the numerous contact with the chains.”

12

(Doc. 19 at 7). Plaintiff asserts inmates attempted to aid Plaintiff after the attack, and “pleaded with

13

the jailers to permit [Plaintiff] to be examined by a [d]octor or taken to the hospital.” Id. at 13.

14

Plaintiff argues the Court “may infer and then determine the presence of a serious medical need”

15

because “common sense dictates the skin and muscles will have been torn and ripped open” after

16

being hit with chains. Id. Not so. It is Plaintiff’s obligation to provide factual allegations that

17

support his claims. See Ashcroft, 129 S.Ct. at 1949. It is not for the Court to guess the extent of his

18

injuries.

19

Despite the Court’s repeated admonitions, Plaintiff continues to fail to state in a plain and

20

clear fashion what injuries he suffered and how extensive they were. Though Plaintiff alleges he

21

suffered cuts and bruises, he does not report the severity of these injuries. As the Court has advised

22

Plaintiff repeatedly, this will not suffice. Therefore, the Court does not find that the Fourth

23

Amended Complaint demonstrates that Plaintiff was suffering from a serious medical condition such

24

to implicate constitutional protections. As a result, the complaint is recommended to be

25

DISMISSED.

26

///

27

///

28

///
7

1
2

Deliberate indifference
In addition to establishing the existence of a serious medical need, a plaintiff must show

3

prison officials responded to that need with deliberate indifference. Farmer, 511 U.S. at 834. In

4

clarifying the culpability required for “deliberate indifference,” the Supreme Court held,

5
6
7

[A] prison official cannot be found liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exits, and he
must also draw that inference.

8

Farmer, 511 U.S. at 837. Therefore, a defendant must be “subjectively aware that serious harm is

9

likely to result from a failure to provide medical care.” Gibson v. County of Washoe, 290 F.3d 1174,

10

1193 (9th Cir. 2002) (emphasis omitted). When a defendant should have been aware of the risk of

11

substantial harm but, indeed, was not, “then the person has not violated the Eighth Amendment, no

12

matter how severe the risk.” Id. at 1188.

13

Where deliberate indifference relates to medical care, “[t]he requirement of deliberate

14

indifference is less stringent . . . than in other Eighth Amendment contexts because the responsibility

15

to provide inmates with medical care does not generally conflict with competing penological

16

concerns.” Holliday v. Naku, 2009 U.S. Dist. LEXIS 55757, at *12 (E.D. Cal. June 26, 2009), citing

17

McGuckin, 974 F.2d at 1060. Claims of negligence or medical malpractice are insufficient to claim

18

deliberate indifference. Id. at 394; Toguchi, 391 F.3d at 1057. Generally, deliberate indifference to

19

serious medical needs may be manifested in two ways: “when prison officials deny, delay, or

20

intentionally interfere with medical treatment, or . . . by the way in which prison physicians provide

21

medical care.” Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988).

22

Here, Plaintiff alleges “he and other inmates pleaded with Jailers to permit [Plaintiff] medical

23

attention and care after the [f]irst beating,” but anticipating the same result,” Plaintiff, himself, did

24

not request treatment after the second attack in October. (Doc. 19 at 13, 20). This is insufficient to

25

demonstrated that any of the named defendants had actual knowledge of the need for medical care

26

after either attack. Notably, Plaintiff asserts unnamed “jailers” denied the requests for medical care,

27

not defendants Stevens, Burns, and Daley. (Doc. 19 at 13). Thus, he fails to tie the failure to

28

provide medical care to any named defendant. Further, Plaintiff has not alleged any facts to support
8

1

a conclusion that Defendants knew Plaintiff faced a risk of further harm or injury due to a lack of

2

medical care. See Conn v. City of Reno, 592 F.3d 1081 (9th Cir. 2010) (deliberate indifference

3

“requires both (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need

4

and (b) harm caused by the indifference”) (emphasis added). Therefore, Plaintiff fails to state a

5

cognizable claim of inadequate medical care, and this claim is recommended to be DISMISSED.

6

B. Right to personal safety

7

Prison officials have a duty to take reasonable steps to protect inmates from physical abuse,

8

and one of the “basic human needs” that prison officials must provide is personal safety. Hoptowit v.

9

Ray, 682 F.2d 1237, 1247, 1250-51 (9th Cir. 1982); see also Toussaint v. McCarthy, 801 F.2d 1080,

10

1107 (9th Cir. 2006). To establish a violation of this duty, a plaintiff must demonstrate prison

11

officials were deliberately indifferent to a substantial risk of serious harm to the inmate’s safety.

12

Farmer, 511 U.S. at 834. As above, the deliberate indifference inquiry involves objective and

13

subjective prongs: the deprivation must be “sufficiently serious,” and the prison official must have a

14

“sufficiently culpable state of mind . . . of ‘deliberate indifference’ to inmate . . . safety.” Id., quoting

15

Wilson v. Seiter, 501 U.S. 294, 297, 302-03 (1991).

16

Plaintiff alleges that the district attorney’s office requested that he be placed in protective

17

custody to protect him from inmates against whom he was to testify. (Doc. 19 at 16-17). According

18

to Plaintiff, “Deputies had been provided documentation in the form of a sheet designating precisely

19

which inmates were so designated for segregation.” Id. at 6. Plaintiff asserts, “several Deputies held

20

paperwork identifying the two divergent parties, mandating their separation, but the Deputies

21

abrogated their professional responsibilities thereby exposing [Plaintiff] to this incident.” Id. at 10.

22

In addition, Plaintiff states “both in open court, and on the record, the People through the Prosecutor

23

and also Defense Counsel, both pronounced their warnings for the safeguarding of [Plaintiff].”

24

(Doc. 19 at 17) (emphasis omitted).

25

These facts are insufficient to raise a claim for deliberate indifference to Plaintiff’s personal

26

safety. Plaintiff establishes a serious risk of harm by stating he was placed in the holding cell with

27

individuals from whom he was to be separated, but Plaintiff does not link Defendants to this action.

28

Plaintiff alleges, “Defendants knew that [Plaintiff] was supposed to be separated, segregated from
9

1

certain others for his protection.” (Doc. 19 at 17). However, Plaintiff does not allege Defendants

2

were the officers who placed Plaintiff in the holding cell with those from whom Plaintiff was to be

3

separated. Moreover, Plaintiff did not establish that the “jailers” who had “[a]ctual and

4

[c]onstructive knowledge of the circumstances, inmate classifications and preferred holding cell

5

placement of inmates” (Doc. 19 at 6), were the same the “jailers” who placed Plaintiff in the holding

6

cells in which he was attacked.

7

For Plaintiff to state a cognizable claim for deliberate indifference to his personal safety, the

8

same individuals must have knowledge of Plaintiff’s classification status and need for protection,

9

and be responsible for placing Plaintiff in the holding cell. See Farmer, 511 U.S. at 834 (requiring a

10

“sufficiently culpable state of mind” to establish deliberate indifference); Rizzo, 423 U.S. at 371-72

11

(defendants must be linked to the violation of constitutional rights). Therefore, Plaintiff failed to

12

state a cognizable claim for a violation of his right to personal safety against Defendants, and this

13

claim is DISMISSED.

14

C. Equal Protection

15

Plaintiff asserts Defendants “subjected Plaintiff to a denial of his Equal Protection Rights, as

16

guaranteed by the U.S. Constitution.” (Doc. 12 at 15, emphasis omitted). The Equal Protection

17

Clause states that “no state shall… deny to any person within its jurisdiction the equal protection of

18

the laws.” U.S. Constitution, amend. XIV §1. In essence, this commands that all persons who are

19

similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,

20

439 (1985).

21

A plaintiff can establish an equal protection claim in two ways. First, a plaintiff may allege

22

“the defendants acted with an intent or purpose to discriminate against the plaintiff based upon

23

membership in a protected class. Lee v. City of Los Angeles, 205 F.3d 668, 686 (9th Cir. 2000).

24

Second, where the acts in question do not involve a protected class, a plaintiff can establish a “class

25

of one” claim by alleging that he “has been intentionally treated differently from others similarly

26

situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v.

27

Olech, 528 U.S. 562, 564 (2000). The Ninth Circuit has indicated such actions are disfavored

28

because “the class-of-one theory of equal protection claim could provide a federal cause of action for
10

1

review of almost every executive or administrative government decision.” Engquist v. Oregon Dept.

2

of Agric., 478 F.3d 985, 993 (9th cir 2007).

3

In this case, Plaintiff asserts he is a “class of one.” (Doc. 19 at 18). To succeed on a class of

4

one claim, Plaintiff must demonstrate Defendants (1) intentionally (2) treated Plaintiff differently

5

than other similarly situated individuals, (3) without a rational basis for doing so. Gerhart v. Lake

6

County, 2010 U.S. App. LEXIS 27112, at *23 (9th Cir. Mar. 18, 2011), citing Willowbrook, 528

7

U.S. at 564. According to Plaintiff, “No other [protective custody] inmate was placed in a confined

8

room and allowed to be brutally beaten even once during Plaintiff’s tenure at the Safety Center.”

9

(Doc. 19 at 18). However, as discussed above, Plaintiff does not establish Defendants placed him in

10

the holding cell with those against whom he was to testify, though he was in protective custody and

11

they were a part of the general population.4 Therefore, Plaintiff is unable to support his claim for a

12

violation his right to equal protection, and this claim is DISMISSED.

13

D. Municipal Liability of Stanislaus County

14

In a § 1983 claim, a local government unit may not be held responsible for the acts of its

15

employees under a respondeat superior theory of liability. Monell v. Dep’t of Soc. Servs., 436 U.S.

16

658, 691 (1978) (“a municipality cannot be held liable solely because it employs a tortfeasor”).

17

Rather, a local government entity may only be held liable if it inflicts the injury of which a plaintiff

18

complains through a governmental policy or custom. Id. at 694; Gibson v. County of Washoe, 290

19

F.3d 1175, 1185 (9th Cir. 2002). To establish liability, Plaintiff must show: (1) he was deprived of a

20

constitutional right; (2) the County of Stanislaus had a policy; (3) that this policy amounted to

21

deliberate indifference to his constitutional right; and (4) the policy “was the moving force behind

22

the constitutional violation.” See Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992), quoting

23

City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989); see also Monell, 436 U.S. at 690-92. A

24

policy or custom of a government may be demonstrated when:

25
26
4

27
28

Here, Plaintiff alleges the other inmates were part of the general population. However, in the Third Amended
Complaint, Plaintiff stated the inmates who attacked him “were also classified as in ‘protective custody.’” (Doc. 12 at 4).
Despite the Court’s concern about this incongruity, the Court will assume the inmates who attacked Plaintiff were part of the
general population, as alleged in the Fourth Amended Complaint.

11

1

(1) A longstanding practice or custom…constitutes the standard operating procedure of
the local government entity;

2
3

(2) The decision-making official was, as a matter of law, a final policymaking authority
whose edicts or acts may fairly be said to represent official policy in the area of decision;
or

4
5

(3) An official with final policymaking authority either delegated that authority to, or
ratified the decision of, a subordinate.

6

Pellum, 2011 U.S. Dist. LEXIS 10698, at *8, quoting Menotti v. City of Seattle, 409 F.3d 1113, 1147

7

(9th Cir. 2005). Further, a governmental policy may be inferred where there is evidence of repeated

8

constitutional violations for which the officers were not reprimanded. Menotti, 409 F.3d at 1147.

9

A policy amounts to deliberate indifference when “the need for more or different action is so

10

obvious, and the inadequacy of the current procedure so likely to result in the violation of

11

constitutional rights, that the policymakers can reasonably be said to have been deliberately

12

indifferent to the need.” Mortimer v. Baca, 594 F.3d 714, 722 (9th Cir. 2010) (quotations omitted),

13

citing Oviatt v. Pearce, 954 F.2d 1470, 1477-78 (9th Cir. 1992); accord Canton, 489 U.S. at 390.

14

To establish deliberate indifference by a government, “the plaintiff must show that the municipality

15

was on actual or constructive notice that its omission would likely result in a constitutional

16

violation.” Gibson, 290 F.3d at 1186, citing Farmer v. Brennan, 511 U.S. 825, 841 (1994). Here,

17

Plaintiff has not shown the County had actual or constructive notice of any potential harm instituted

18

by its polices. To the contrary, Plaintiff admits that the County maintained appropriate policies and

19

procedures that employees failed to follow. (Doc. 19 at 5)

20

Thus, municipal liability to be imposed, the complaint must allege sufficient facts to

21

demonstrate that an unconstitutional custom caused Plaintiff’s injuries. A custom is “a widespread

22

practice that . . . is so permanent and well-settled as to constitute a custom or usage with the force of

23

law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (internal quotation mark omitted).

24

Consequently, “[l]iability for improper custom may not be predicated on isolated or sporadic

25

incidents; it must be founded upon practices of sufficient duration, frequency and consistency that

26

the conduct has become a traditional method of carrying out that policy.” Trevino v. Gates, 99 F.3d

27

911, 918 (9th Cir. 1996). As stated above, Plaintiff asserts that the treatment he received was unique

28

to him; that he was the only inmate in protective custody “who was placed in a confined room and
12

1

allowed to be brutally beaten.” (Doc. 19 at 18). Thus, Plaintiff’s allegations demonstrate that an

2

unconstitutional custom did not cause the claimed damages.

3

On the other hand, Plaintiff may establish municipal liability based upon a single event if he

4

demonstrates that the person causing the constitutional injury was a final policymaker for the entity.

5

See City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)

6

(plurality) (“[O]nly those municipal officials who have ‘final policymaking authority’ may by their

7

actions subject the government to § 1983 liability.”). However, Plaintiff has made no allegations

8

that demonstrate that any named defendant or any of the unnamed actors had final policymaking

9

authority. Thus, the Fourth Amended Complaint fails to state a claim against the County of

10

Stanislaus and the complaint is recommended to be DISMISSED.

11

V.

12

California Tort Claims Act and Plaintiff’s State Law Claims
Plaintiff raises claims of negligence and “emotional distress” (Doc. 19 at 7-10), which are

13

causes of action arising under state law. Under the California Tort Claims Act, a plaintiff may not

14

maintain an action for damages against a public employee unless he timely filed a notice of tort

15

claim. Cal. Gov’t Code §§ 905, 911.2, 945.4 & 950.2; Mangold v. California Pub. Utils. Comm’n,

16

67 F.3d 1470, 1477 (9th Cir. 1995). Thus, to raise a state claim, Plaintiff must allege facts

17

demonstrating compliance with the presentation requirement of the California Tort Claims Act.

18

State of California v. Superior Court, 32 Cal.4th 1234, 1243-44 (2004); Snipes v. City of

19

Bakersfield, 145 Cal.App.3d 861, 865 (Cal. App. 1983). When a plaintiff fails to allege compliance,

20

it is fatal to the cause of action and results in the dismissal of the state law claim. Id.; Willis v.

21

Reddin, 418 F.2d 702, 704 (9th Cir. 1969).

22

To comply with the California Tort Claims Act, a complaint must at a minimum, “identify

23

the date, place, and other circumstances of the occurrence or transaction which gave rise to the claim

24

asserted.” Cal. Gov’t Code § 910(c). Additionally, claims “relating to a cause of action for . . .

25

injury to a person” must be presented no later than six months after the accrual of the cause of

26

action.” Cal. Gov’t Code § 911.2(a). “Failure to timely present a claim for money or damages to a

27

public entity bars a plaintiff from filing a lawsuit against that entity.” Pimentel v. County of Fresno,

28
13

1

2011 U.S. Dist. LEXIS 10117, at *26 (E.D. Cal. Feb. 2, 2011), citing City of Stockton v. Superior

2

Court, 42 Cal.4th 730, 738; Cal. Gov’t. Code § 945.4.

3

Plaintiff alleges that he sent a letter to the Stanislaus County Board of Supervisors on March

4

17, 2010, which “stated the time, place, cause, nature, and extent of the plaintiff’s injuries.” (Doc.

5

19 at 4). In part, Plaintiff’s claims are based upon injuries caused “mid-August.” Giving Plaintiff

6

every benefit of the doubt and assuming his claims accrued on August 31, 2009, the notice given on

7

March 17, 2010 was beyond the six-month limitation. Alternatively, Plaintiff must demonstrate that

8

his compliance with the claims-filing procedure has been excused. Cal. Gov. § Code 946.6.

9

Moreover, this March 17, 2010 notice appears to be beyond the six-month deadline for

10

making this claim given his allegation that the second incident occurred in “Early October, 2009.”

11

(Doc. 19 at 5) However, even assuming his claim was timely filed as to the second incident, he has

12

not alleged that the claim was rejected or deemed rejected by the Board of Supervisors. California

13

Government Code § 945.4 provides, “[N]o suit for money or damages may be brought against a

14

public entity on a cause of action for which a claim is required to be presented . . . until a written

15

claim therefor has been presented to the public entity and has been acted upon by the board, or has

16

been deemed to have been rejected by the board . . .” (emphasis added). Thus, Plaintiff has failed to

17

plead sufficiently to demonstrate compliance with the California Tort Claims Act. State of

18

California v. Superior Court, 32 Cal.4th at 1243. Therefore, the Court will recommend that his

19

claims raised under the California Tort Claims Act be DISMISSED.

20

A. Negligence

21

To state a cognizable claim for negligence under California law, Plaintiff “must establish four

22

required elements: (1) duty; (2) breach; (3) causation; and (4) damages.” Ileto v. Glock, Inc., 349

23

F.3d 1191, 1203 (9th Cir. 2003). Here, Plaintiff asserts this claim of negligence against Stanislaus

24

County, and officers Burns, Stevens, and Daley.

25

Here, Plaintiff asserts officers Burns, Stevens, and Daley “were negligent by . . . failing to

26

follow . . . established safety procedures; failing to protect plaintiff from harm; failing to provide

27

necessary and appropriate security measures; and failing to provide necessary and appropriate

28

personnel necessary for the safety, welfare, and protection of [Plaintiff].” (Doc. 19 at 2-3).
14

1

However, as set forth above, Plaintiff has not alleged facts that support this assertion, such as the

2

officers having knowledge that Plaintiff was to be protected, or that these officers placed Plaintiff in

3

the holding cell in which he was attacked in October. Moreover, Plaintiff does not allege these

4

officers had control over the security measures taken or were responsible for providing personnel at

5

the holding cell.

6

Plaintiff is unable to raise a claim of negligence based on common law tort liability against

7

Stanislaus County. “[D]irect tort liability of public entities must be based on a specific statute

8

declaring them to be liable, or at least creating some specific duty of care.” Eastburn v. Regional

9

Fire Protection Authority, 31 Cal.4th 1175, 1183, 80 P.3d 656 (2003). Instead, the liability of the

10

entity is confined to the “rigidly delineated” circumstances set forth in the California Tort Claims

11

Act and all direct liability is based upon statute. Cal. Gov. Code § 815 (“Except as otherwise

12

provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an

13

act or omission of the public entity or a public employee or any other person.”) Thus, “to state a

14

cause of action against a public entity, every fact material to the existence of its statutory liability

15

must be pleaded with particularity.” Peter W. v. San Francisco Unified Sch. Dist., 60 Cal.App.3d

16

814, 819 (1960). Plaintiff alleges the County breached several duties, but Plaintiff fails to support

17

that the duties are mandated by statute or to identify the statute upon which liability may be based.

18

On the other hand, California “imposes liability on counties under the doctrine of respondeat

19

superior for acts of county officials.” Robinson v. Solano County, 278 F.3d 1007, 1016 (9th Cir.

20

2002). Under Cal. Gov’t Code § 815.2(a), “[a] public entity is liable for injury proximately caused

21

by an act or omission of an employee of the public entity within the scope of his employment if the

22

act or omission would . . . have given rise to a cause of action against that employee or his personal

23

representative.” However, as discussed above, Plaintiff has failed to state a claim of negligence

24

against Burns, Stevens, and Daley. Similarly, Plaintiff failed to allege any of the “jailers,” who were,

25

presumably, employees of the County, breached a duty to protect Plaintiff by having knowledge of

26

his need for protection and by placing him the cell in which he was attacked. Rather, Plaintiff seems

27

to base his claims for negligence and respondeat superior on common law tort liability, without

28

supporting his claims with factual allegations. Such omission is fatal to the claims . . . [and] warrant
15

1

dismissal of the negligence and respondeat superior claims against the County.” Sarmas v. County

2

of Stanislaus, 2009 U.S. Dist. LEXIS 104506, at *24 (E.D. Cal. Oct. 26, 2009).

3

upon these facts, Plaintiff has failed to state a claim of negligence against the County and against

4

officers Burns, Stevens, and Daley. Therefore, Plaintiff’s claim for negligence is recommended to be

5

DISMISSED.

Based

6

B. Emotional Distress

7

It is unclear whether the claim for “emotional distress” against Stanislaus County is raised as

8

an intentional tort or as negligent infliction of emotional distress. See Doc. 19 at 10. Notably, under

9

California law, “the negligent causing of emotional distress is not an independent tort, but the tort of

10

negligence.” Burgess v. Superior Court, 831 P.2d 1197, 1200 (Ct. App. 1992). A claim of negligent

11

infliction of emotional distress “contains the traditional elements of duty, breach, causation and

12

damages.” Jacoves v. United Merchandising Corp., 9 Cal.App.4th 88, 106 (Ct. App. 1992).

13

Consequently, Plaintiff is unable to pursue a claim for relief for the negligent infliction of emotional

14

distress for the same reasons that he cannot pursue a claim for negligence against Stanislaus County .

15

If Plaintiff intended to assert a claim for intentional infliction of emotional distress against

16

the County based upon the actions of its employees, he must establish: (1) outrageous conduct by the

17

defendant, (2) who intended to cause or recklessly disregarded the probability of causing emotional

18

distress, (3) and the defendant’s actions were the actual and proximate cause (4) of Plaintiff’s severe

19

emotional suffering. Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004), citing Brooks v. United

20

States, 29 F.Supp. 2d 613, 617 (N.D. Cal. 1998). Outrageous conduct is demonstrated when a

21

“defendant’s conduct was ‘so extreme as to exceed all bounds of that usually tolerated in a civilized

22

society.’” Van Horn v. Hornbeak, 2009 U.S. Dist. LEXIS 16134, at *8 (E.D. Cal. Feb. 18, 2009),

23

quoting Ricard v. Pacific Indemnity Co., 132 Cal.App.3d 866, 895 (1982). Here, Plaintiff has failed

24

to link the any employee to any outrageous conduct, and has not shown an intent to cause Plaintiff

25

emotional distress. Therefore, Plaintiff’s claim against Stanislaus County for “[e]motional distress

26

as part of injuries sustained” is recommended to be DISMISSED.

27

///

28

///
16

1
2

VI. Doe defendants
Generally, “Doe” defendants are disfavored in the Ninth Circuit. Gillespie v. Civiletti, 629

3

F.2d 637, 642 (9th Cir. 1980); see also Clark v. Rolling Hills Casino, 2010 U.S. Dist. LEXIS 55087,

4

at *9 (E.D. Cal. May 5, 2010). However, when the identities of defendants are not known, “the

5

plaintiff should be given an opportunity through discovery to identify the unknown defendants,

6

unless it is clear that discovery would not uncover the identities, or that the complaint would be

7

dismissed on other grounds.” Gillespie, 629 F.2d at 642.

8
9

Plaintiff names “Does 1-100” as defendants in the Fourth Amended Complaint. However,
Plaintiff fails to state where these defendants, or the others, worked and in what capacity. Also,

10

Plaintiff fails to identify individuals among these defendants or demonstrate how individuals acted in

11

a manner that caused a violation of his rights. Presumably, some of the Doe defendants are the

12

“jailers” Plaintiff said placed him in the holding cell in August and October, those who knew he was

13

to be in protective custody, “jailers” who knew the identity of those against whom Plaintiff was to

14

testify, and those who refused the requests for medical treatment. See Doc. 19 at 5-6, 12-13, 17.

15

Plaintiff is required to allege specifically how each defendant— including Doe defendants—

16

violated his rights, and link each defendant’s actions to the violation of his rights. See West, 487

17

U.S. at 28; Johnson, 588 F.2d at 742. Previously, the Court informed Plaintiff he must identify

18

individuals among the Doe defendants to sufficiently plead a claim. (Doc. 13 at 13) (“to state a

19

claim against a Doe defendant, Plaintiff must be able to pinpoint individuals who caused him

20

harm”). Furthermore, the Court has determined Plaintiff’s claims must be dismissed because they

21

lack supporting factual allegations. Consequently, Plaintiff has failed to state a cognizable claim

22

against Does 1-100, and he should not be permitted an opportunity to identify the unknown

23

defendants. The Fourth Amended Complaint as to defendants “Does 1-100” is recommended to be

24

DISMISSED.

25

VII. Findings and Recommendations

26

Plaintiff fails to establish a cause of action because he has failed to provide supporting factual

27

allegations, and has not linked Defendants to his causes of action. The Court has informed Plaintiff

28

repeatedly what he must do to state a claim and has repeatedly admonished him that he must provide
17

1

facts and not mere conclusions to properly support his claims. See Doc. 5 at 5; Doc. 7 at 11; Doc. 13

2

at 14. The Supreme Court stated,

3

5

Rule 8 does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action
will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further
factual enhancement.

6

Ashcroft, 129 S.Ct. at 1949 (internal quotation marks and citations omitted) (emphasis added).

7

Plaintiff has failed repeatedly to provide information that could support a conclusion that Defendants

8

caused a constitutional violation of his rights.

4

9

In spite of the guidance offered by the Court regarding the necessary elements required to

10

state each claim, Plaintiff has filed five pleadings in this action, yet has failed in each to state a

11

cognizable claim that links any defendant to any alleged constitutional violation of his rights. West,

12

487 U.S. at 28; Rizzo, 423 U.S. at 371-72. Moreover, because Plaintiff failed to state a constitutional

13

violation of his rights, the Court is acting within its discretion to decline supplemental jurisdiction

14

over state law claims under 28 U.S.C. § 1367(a). See City of Chicago v. Int’l. College of Surgeons,

15

522 U.S. 156, 172 (1997) (“that the terms of § 1367(a) authorize the district courts to exercise

16

supplemental jurisdiction over state law claims . . . does not mean that the jurisdiction must be

17

exercised in all cases”); see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)

18

(“pendent jurisdiction is doctrine of discretion, not of plaintiff’s right”). Therefore, the Court

19

recommends that leave to amend his state law claims not be granted.

20

Based upon the record and the facts set forth in the Fourth Amended Complaint, it does not

21

appear the deficiencies of his complaint can be cured by amendment, and granting Plaintiff further

22

leave to amend would be futile. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc)

23

(requiring leave to be granted to the extent deficiencies can be cured by amendment).

24

Accordingly, IT IS HEREBY RECOMMENDED:

25

1.

26
27

Plaintiff’s Fourth Amended Complaint be DISMISSED WITHOUT LEAVE TO
AMEND; and

2.

The Clerk of Court be directed to close the action.

28
18

1

These findings and recommendations are submitted to the United States District Judge

2

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the

3

Local Rules of Practice for the United States District Court, Eastern District of California. Within

4

14 days after being served with these findings and recommendations, Plaintiff may file written

5

objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s

6

Findings and Recommendations.” Plaintiff is advised failure to file objections within the specified

7

time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

8

Cir. 1991).

9
10

IT IS SO ORDERED.

11

Dated: May 24, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19