Stewart v. Bright, et al.

Filing 9

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Jennifer L. Thurston on 3/26/2013. Amended Complaint due by 4/19/2013.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DESI CARDENAS,

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Plaintiff,

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Case No. 1:11-cv-01394-JLT
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

vs.
(Doc. 1.)

TULARE COUNTY SHERIFF’S DEPT.,

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Defendants.

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Plaintiff Desi Cardenas (“Plaintiff”) is a state prisoner proceeding pro se with a civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint filed on August 22, 2011, is

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before the Court for screening (Doc. 1.) Plaintiff asserts his claim against the Tulare County

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Sheriff’s Department (“Department”) and Lieutenant Fosnaugh for the actions of their

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subordinates, but the Court notes that the Department is the only Defendant formally joined in

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this matter. Id. at 5. For the reasons set forth below, the complaint is hereby DISMISSED

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WITH LEAVE TO AMEND.

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I.

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Screening Requirement
The Court is required to screen Plaintiff’s complaint to identify cognizable claims as

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Plaintiff seeks redress from governmental employees in a civil action. 28 U.S.C. § 1915A(a)-(b).

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The Court shall “dismiss the complaint, or any portion of the complaint, if the complaint (1) is
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frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks

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

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U.S.C. § 1915(e)(2)(B)(i)-(iii).

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II.

Pleading Standards
“Pro se documents are to be liberally construed” and “‘must be held to ‘less stringent

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standards than formal pleadings drafted by lawyers.’” Estelle v. Gamble, 429 U.S. 97, 106 (1976)

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(quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “[They] can only be dismissed for

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failure to state a claim if it appears ‘beyond doubt that the plaintiff can prove no set of facts in

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support of his claim which would entitle him to relief.’” Id.
Under Federal Rule of Civil Procedure 8(a), “[a] pleading that states a claim for relief

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must contain: (1) a short and plain statement of the grounds for the court’s jurisdiction, . . . ; (2) a

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short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a

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demand for the relief sought.” Fed. R. Civ. P. 8(a). Each allegation must be simple, concise, and

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direct. Fed. R. Civ. P. 8(d)(1). While a complaint “does not need detailed factual allegations, a

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plaintiff’s obligation to provide the ‘grounds’ of his entitlement to relief requires more than labels

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and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation marks and citations

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omitted).
In analyzing a pleading, the Court should set conclusory factual allegations aside, accept

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all non-conclusory factual allegations as true, and determine whether those non-conclusory

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factual allegations accepted as true state a claim for relief that is plausible on its face. Ashcroft v.

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Iqbal, 129 S. Ct. 1937, 1949-52 (2009). “The plausibility standard is not akin to a probability

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requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

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Id. at 1949 (internal quotation marks and citation omitted). In determining plausibility, the Court

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is permitted “to draw on its judicial experience and common sense.” Id. at 1950.

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III.

Plaintiff’s Factual Allegations and Contentions

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Plaintiff is a state prisoner incarcerated at the Tulare County Bill Wiley Detention Facility

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(“Bill Wiley”). (Doc. 1 at 3). From May 26, 2010, to August 29, 2010, and again from December
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13, 2010, to March 1, 2011, Plaintiff was subjected to oppressive treatment by a particular group

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of inmates (“Group”). Id. at 3, 5. The Group exerted its control over other inmates by screening

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inmates’ legal papers for charges and policing new arrivals on a daily basis by standing guard

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over other inmates. Id. at 3.
For the three months following Plaintiff’s arrival at Bill Wiley on April 17, 2010, and

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upon leaving his cell, the Group held Plaintiff against his will. Id. at 3-4. The Group forced

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Plaintiff to “stand at attention” or Plaintiff would be physically harmed. Id. at 4. Plaintiff

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contends that the Department was aware of the Group’s control of other inmates, because the

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Department had previously confiscated related documentation. Id. This oppressive treatment

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continued under the supervision of the Department’s deputies. Id.
On December 13, 2010, Plaintiff was transferred to the Tulare County “Main Jail” (“Main

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Jail”). Id. Sargent Maldonado knowingly placed an inmate “next to” Plaintiff’s cell against

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whom Plaintiff had refused to testify. Id. at 4. Plaintiff indicates that this was done to “punish”

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Plaintiff for not testifying against another inmate. Id. Plaintiff claims he sustained psychological

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and emotional injury due to the Defendants’ failure to halt the actions of the Group. Id. at 5.

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IV.

Discussion

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A. Liability of the Tulare County Sheriff’s Department

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Local municipalities may be held liable under 42 USC § 1983 if “a deliberate policy,

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custom, or practice that was the “moving force” behind the [alleged] constitutional violation[.]”

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Galen v. County of Los Angeles, 477 F.3d 652, 667 (9th Cir. 2007); Gibson v. County of

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Washoe, Nev, 290 F.3d 1175, 1186 (9th Cir. 2002)(citing Monell v. New York City Dept. of

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Social Services, 436 U.S. 658, 689 (1978)).

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Plaintiff asserts that when he first arrived at Bob Wiley, a sergeant asked him if he “would

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get cleared by the casa.” (Doc. 1 at 3) Plaintiff reports that the “casa” refers to the housing unit.

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However, he provides no other details about this conversation and the complaint fails to provide

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facts to support that this question somehow implies wrongdoing. Plaintiff also reports that “for

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many years” the Department has confiscated numerous types of documentation, specifically

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delineating basic protocol and procedure thereof.” Id. at 4. Plaintiff fails to support this
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statement with any facts and, in truth, the Court does not know what to make of this. It appears

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that Plaintiff is suggesting that this group of menacing inmate kept a rule book of sorts which

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detailed how and when other inmates would be menaced. Whether this is true—and the Court is

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at a loss to understand how Plaintiff could know this given his limited stay at Bob Wiley—there

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is no indication that once seized, anyone at the Department examined the documents or

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investigated its contents. Finally, Plaintiff alleges there were cameras in the housing units which

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recorded events there. However, he fails to allege facts upon which the Court can conclude that

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what was observed appeared to be unlawful. For example, though the group of inmates forced

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Plaintiff to “stand at attention” Plaintiff admits that he was not physically assaulted such that an

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observer would have reason to know something was amiss. (Doc. 1 at 4)
Despite Plaintiff’s report that his ability to report the mistreatment was “crippled,” he

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provides no factual support that any of the officers to whom he complained knew anything about

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the problematic group of inmates. Indeed, the officers inquired of Plaintiff why he did not

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complain sooner and, when he did complain finally, they conducted an investigation which

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included review of the video surveillance. Without more, on its face this indicates the

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Department was not aware of Plaintiff’s situation despite Plaintiff’s conclusion to the contrary.

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Furthermore, by Plaintiff’s own admission, the Department transferred him from the Main Jail

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after the Department was notified that the inmate placed next to Plaintiff’s cell was a problem for

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him. Thus, Plaintiff fails to plead that Department officials were aware of and disregarded a

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known substantial risk to the Plaintiff.1 Farmer v. Brennan, 511 U.S. 825, 833 (1994)(Prison

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officials must have known of and disregarded an excessive risk to the prisoner=s safety.)

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Therefore, Plaintiff’s complaint against the Department is DISMISSED WITHOUT
PREJUDICE for failure to state a cognizable claim.

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B.

Liability of Lt. T. Fosnaugh

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It appears the only contact between Defendant Fosnaugh and Plaintiff is when Fosnaugh,

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It is not explained why this placement was a problem for Plaintiff. Plaintiff had refused to testify against
this other inmate. Thus, why Plaintiff believes having this inmate housed in the adjoining cell demonstrates
wrongdoing, is not explained.
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while investigating Plaintiff’s grievance, interviewed him. (Doc. 1 at 2) Although Plaintiff is

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dissatisfied with the results of the grievance, this will not state a constitutional violation. Mann v.

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Adams, 855 F.2d 639, 640 (9th Cir. 1989) (Inmates have “no legitimate claim[s] of entitlement to

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a grievance procedure.”); Gonzalez v. Mullen, 446 Fed.Appx. 17, 18 (9th Cir. 2011). (No due

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process rights exist as to the handling of an inmate’s administrative grievance in a particular

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manner.)
On the other hand, Plaintiff seeks to impose liability on Fosnaugh because he is the

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supervisor of other officers. (Doc. 1 at 5) Nevertheless, to state a claim against an individual

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pursuant to 42 USC § 1983, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.2002).

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In his pleading, Plaintiff must demonstrate that Defendant Fosbaugh, through his own action

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violated Plaintiff's constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948–49

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(2010). Liability may not be imposed on supervisory personnel under section 1983 on the theory

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of respondeat superior. Id.; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). A

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supervisor may be held liable only if he or she “participated in or directed the violations, or knew

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of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th

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Cir.1989); accord Starr v. Baca, No. 09–55233, 2011 WL 477094 *4–5 (9th Cir. 2011); Corales

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v. Bennett, 567 F.3d 554, 570 (9th Cir.2009); Preschooler II v. Clark County School Board of

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Trustees, 479 F.3d 1175, 1182 (9th Cir.2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th

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Cir.1997). Here, there are no facts alleged that Defendant Fosbaugh—or any officer under his

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command--had any knowledge that Plaintiff was being harassed by other inmates, until Plaintiff

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finally complained. Thus, Plaintiff has failed to state a claim against Defendant Fosbaugh.

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V.

Leave to Amend

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The Court will grant Plaintiff one final opportunity to amend the complaint to address the

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above deficiencies. If Plaintiff chooses to amend his complaint, in compliance with Fed. R. Civ.

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P. 8(a), it must be brief but must describe the particular actions of each defendant that he claims

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deprive him of his constitutional or federal rights. Iqbal, 129 S.Ct. at 1948-49; Jones v. Williams,

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297 F.3d 930, 934 (9th Cir. 2002). Plaintiff is advised that he may not change the nature of this
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suit by adding new, unrelated claims to his amended complaint. See George v. Smith, 507 F.3d

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605, 607 (no “buckshot” complaints). Factual allegations will be accepted as true, but “must be

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[sufficient] to raise a right to relief above the speculative level” and establish plausibility.

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Twombly, 550 U.S. at 555-56 (2007) (citations omitted). Plaintiff is also advised that mere

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conclusions that are unsupported by factual allegations are insufficient to state a claim.
Plaintiff should be aware that an amended complaint supercedes any prior complaints.

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

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(9th Cir. 1987). Pursuant to Local Rule 220, an amended complaint must be “complete in itself

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without reference to the prior or superceded pleading.” Plaintiff is advised that “[a]ll causes of

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action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” King, 814 F.2d at 567 (citing London v. Coopers & Lybrand, 644 F2d 811, 814 (9th

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Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

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VI.

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Conclusion and Order
The Court must dismiss Plaintiff’s complaint as to all Defendants because, for the reasons

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described above, it fails to state a cognizable claim.

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Accordingly, IT IS HEREBY ORDERED:

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Plaintiff’s complaint is DISMISSED WITH LEAVE TO AMEND; and

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2.

Plaintiff is GRANTED 21 days from the date of service of this order

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to file an amended complaint. The amended complaint must reference the docket number

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assigned to this case and must be labeled “First Amended Complaint.”

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Failure to file an amended complaint in accordance with this order will result in a
recommendation that this action be dismissed pursuant to Local Rule 110.

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IT IS SO ORDERED.
Dated:

March 26, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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