Jimenez v. Fresno Superior Court, Dept. 20, et al.

Filing 7

AMENDED ORDER Requiring Plaintiff Either To File Amended Complaint Or To Notify Court Of Willingness To Proceed Only On Claims Identified Herein, Thirty-Day Deadline, signed by Magistrate Judge Stanley A. Boone on 9/19/2013.(Amended Complaint due by 10/23/2013) (Attachments: # 1 Amended Complaint Form)(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,
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v.
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FRESNO COUNTY SUPERIOR COURT, et. )
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al.
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Defendant.
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RICHARD JIMENEZ,

Case No.: 1:13-cv-01204-SAB (PC)
AMENDED ORDER REQUIRING PLAINTIFF
EITHER TO FILE AMENDED COMPLAINT OR
TO NOTIFY COURT OF WILLINGNESS TO
PROCEED ONLY ON CLAIMS IDENTIFIED
HEREIN
THIRTY-DAY DEADLINE

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I.

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INTRODUCTION

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Plaintiff Richard Jimenez (“Plaintiff”), a pretrial detainee proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 2, 2013. (ECF No. 1.)

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On September 9, 2013, the screening order issued in this action. (ECF No. 5.) On September 19,

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2013, Plaintiff filed a notice that the order contained a clerical error. (ECF No. 6.) Accordingly, this

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amended order shall issue.
For the reasons set forth below, the Court finds that Plaintiff’s complaint states some

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cognizable claims. The Court will order Plaintiff either to amend his complaint to cure the

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deficiencies in his non-cognizable claims or to notify the Court that he does not wish to amend and

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wishes to proceed only on the claims found to be cognizable in this order.

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II.

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SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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A complaint must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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III.

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COMPLAINT ALLEGATIONS

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On July 20, 2013, while housed at the Fresno County jail, Plaintiff contends that during the

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afternoon session of the proceedings in the Fresno County Superior Court, Fresno County Deputy

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Sheriff Mark Redfield attacked and assaulted him. Plaintiff claims Deputy Redfield grabbed him by
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the “neck collar” and pushed him approximately 20 to 30 feet causing his head and body to “crash”

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into a solid wood door resulting in bleeding to his left eye, injury to his left elbow and neck, and

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damage to his optical glasses. Plaintiff contend that the assault took place while his arms and ankles

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were handcuffed preventing him from defending against the assault.
In addition to Deputy Redfield, Petitioner names Fresno County Sheriff Margaret Mims, the

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Fresno County Sheriff’s Department, and Fresno County Superior Court Judge Alan Simpson, as

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defendants.

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IV.

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DISCUSSION

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A.

Excessive Force

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It is the Due Process Clause of the Fourteenth Amendment rather than the Eighth Amendment

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which protests pretrial detainees such as Plaintiff “from the use of excessive force that amounts to

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punishment. ” Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1197 (9th Cir. 2002) (citation

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omitted). Thus, the Fourth Amendment sets the applicable constitutional limitations for considering

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such claims. Id. Claims are analyzed under the objective unreasonableness standard, which requires

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an evaluation of “‘whether officers’ actions are ‘objectively reasonable’ in light of the facts and

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circumstances confronting them, without regard to their underlying intent or motivation.’” Lolli v.

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County of Orange, 351 F.3d 410, 415 (9th Cir. 2003) (quoting Graham v. Connor, 490 U.S. 386, 397

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(1989)).
Plaintiff’s allegations are sufficient to state a claim against Defendant Deputy Redfield, who

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allegedly assaulted Plaintiff.

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B.

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As noted, Plaintiff also names Fresno County Sheriff Margaret Mims as a defendant in this

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Supervisory Liability

action.
Under section 1983, Plaintiff must prove that the defendants holding supervisory positions

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

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2002). There is no respondeat superior liability, and each defendant is only liable for his or her own

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misconduct. Iqbal, 556 U.S. at 676-677. A supervisor may be held liable for the constitutional
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violations of his or her subordinates only if he or she “participated in or directed the violations, or

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

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1989); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School

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

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Cir. 1997).

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Plaintiff’s complaint is devoid of any allegations supporting the existence of a supervisory

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liability claim against Sheriff Mims. The only basis for such a claim would be respondeat superior,

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which is precluded under section 1983. Iqbal, 556 U.S. at 676-677.

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C.

Municipal Liability

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Plaintiff names the Fresno County Sheriff’s Department as a defendant in this action.

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A local government unit may not be held responsible for the acts of its employees under a

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respondeat superior theory of liability. Monell v. Department of Social Services, 436 U.S. 658, 691

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(1978); Webb v. Sloan, 330 F.3d 1158, 1163-1164 (9th Cir. 2003). Generally, a claim against a local

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government unit for municipal or county liability requires an allegation that “a deliberate policy,

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custom, or practice . . . was the ‘moving force’ behind the constitutional violation . . . suffered.”

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

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489 U.S. 378, 385 (1989). Alternatively, and more difficult to prove, municipal liability may be

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imposed where the local government unit’s omission led to the constitutional violation by its

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employee. Gibson at 1186. Under this route to municipal liability, the “plaintiff must show that the

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municipality’s deliberate indifference led to its omission and that the omission caused the employee to

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commit the constitutional violation.” Id. Deliberate indifference requires a showing “that the

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municipality was on actual or constructive notice that its omissions would likely result in a

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constitutional violation.” Id.

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The abuse of power through the use of excessive force by a county deputy does not confer

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liability upon the county itself absent a showing that the county inflicted the injury complained of

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through its acts or omissions. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

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A claim against a municipality for failure to train may only be premised on a deliberate or conscious

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choice not to train. Clouthier v. County of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010).

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Plaintiff’s complaint contains no facts to support a claim for municipal liability.

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D.

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Lastly, Plaintiff names Fresno County Superior Court Judge Alan Simpson as a defendant in

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Judicial Immunity

this action.

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The judge presiding over Plaintiff’s case has absolute immunity. Forrester v. White, 484 U.S.

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219, 225 (1988). The Ninth Circuit has stated: “Judges and those performing judge-like functions are

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absolutely immune for damage liability for acts performed in their official capacities.” Ashelman v.

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Pope, 739 F.2d 1072, 1075 (9th Cir. 1986) (citing Richardson v. Koshiba, 692 F.2d 911, 913 (9th Cir.

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1982). Thus, the doctrine of judicial immunity protects “judicial independent by insulating judges

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from vexatious actions prosecuted by disgruntled litigants.” Forrester, 484 U.S. at 255.

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Such absolute judicial immunity is lost “only when [the judge] acts in the clear absence of all

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jurisdiction or performs an act that is not judicial in nature.” Schucker v. Rockwood, 846 F.2d 1202,

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1204 (9th Cir. 1988). Even when a judge is accused of acting maliciously, corruptly, or erroneously,

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judicial immunity remains. See Mireles v. Waco, 502 U.S. 9, 11 (1991) (“judicial immunity is not

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overcome by allegations of bad faith or malice”); Meek v. County of Riverside, 183 F.3d 962, 965

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(9th Cir. 1999) (“A judge is not deprived of immunity because he takes action which are in error, are

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done maliciously, or are in excess of his authority”). Plaintiff has not set forth any allegations

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demonstrating that judicial immunity should not apply in this case. Accordingly, Plaintiff has failed to

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state a claim against Fresno County Superior Court Judge Alan Simpson.
IV.

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CONCLUSION AND ORDER

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Plaintiff’s complaint states a cognizable claim against Defendant Deputy Redfield for

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excessive force in violation of the Fourth Amendment. Plaintiff has not sufficiently alleged facts for

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any other claims against any of the other named Defendants. The Court will provide Plaintiff with the

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opportunity to file an amended complaint curing the deficiencies identified by the Court in this order.

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Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this

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suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607
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(7th Cir. 2007) (no “buckshot” complaints).

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If Plaintiff does not wish to file an amended complaint and is agreeable to proceeding only on

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the claim for excessive force against Defendant Redfield, Plaintiff may so notify the Court in writing,

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and the Court will issue a recommendation for dismissal of the other claims and Defendants, and will

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forward Plaintiff one (1) summons and one (1) USM-285 form for completion and return. Upon

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receipt of the forms, the Court will direct the United States Marshal to initiate service of process.

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If Plaintiff opts to amend, his amended complaint should be brief. Fed. R. Civ. P. 8(a).

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Plaintiff must identify how each individual defendant caused the deprivation of Plaintiff’s

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constitutional or other federal rights: “The inquiry into causation must be individualized and focus on

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the duties and responsibilities of each individual defendant whose acts or omissions are alleged to

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have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). With

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respect to exhibits, while they are permissible if incorporated by reference, Fed. R. Civ. P. 10(c), they

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are not necessary in the federal system of notice pleading, Fed. R. Civ. P. 8(a). In other words, it is

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not necessary at this stage to submit evidence to prove the allegations in Plaintiff’s complaint because

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at this stage Plaintiff’s factual allegations will be accepted as true.

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Although Plaintiff’s factual allegations will be accepted as true and “the pleading standard

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Rule 8 announces does not require ‘detailed factual allegations,’” “a complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,

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550 U.S. at 556).

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Plaintiff is advised that an amended complaint supersedes the original complaint. Forsyth v.

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

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The amended complaint must be “complete in itself without reference to the prior or superseded

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pleading.” Local Rule 220. Plaintiff is warned that “[a]ll causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing

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London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.
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In other words, even the claims that were properly stated in the original complaint must be completely

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stated again in the amended complaint. Finally, Plaintiff is advised that, should he choose to amend,

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he may not bring unrelated claims in the same action.

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Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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2.

Within thirty (30) days from the date of service of this order, Plaintiff must either:
a.

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File an amended complaint curing the deficiencies identified by the Court in this
order, or

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b.

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Notify the Court in writing that he does not wish to file an amended complaint

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and wishes to proceed only against Defendant Deputy Redfield for excessive

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force; and

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3.

If Plaintiff fails to comply with this order, this action will be dismissed for failure to
obey a court order.

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IT IS SO ORDERED.

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Dated:

September 19, 2013

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UNITED STATES MAGISTRATE JUDGE
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