Kinder v. Merced County
Filing
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ORDER DISMISSING ACTION with prejudice for failure to state a claim signed by Magistrate Judge Michael J. Seng on 12/19/2016. Dismissal counts as a Strike pursuant to 28 U.S.C. 1915(g). CASE CLOSED.(Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BOBBY LEE KINDER, JR.,
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Plaintiff,
v.
MERCED COUNTY,
Defendant.
CASE No. 1:16-cv-01311-MJS (PC)
ORDER DISMISSING ACTION WITH
PREJUDICE FOR FAILURE TO STATE A
CLAIM
(ECF No. 16)
DISMISSAL COUNTS AS A STRIKE
PURSUANT TO 28 U.S.C. § 1915(g)
CLERK TO TERMINATE ALL PENDING
MOTIONS AND CLOSE CASE
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
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rights action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate
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Judge jurisdiction. No other parties have appeared in the action.
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Plaintiff’s complaint was dismissed for failure to state a claim, but he was given
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leave to amend. (ECF No. 9.) His first amended complaint was dismissed because it
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contained only allegations that were not properly joined in this action. He again was
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given leave to amend. (ECF No. 11.) His initial attempt at a second amended complaint
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was stricken because it too contained only contained allegations improperly asserted in
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this action. A separate action was opened and the stricken complaint was filed therein.
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Plaintiff has filed a new second amended complaint in this action, and it is before
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the Court for screening.
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I.
Screening Requirement
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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which
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relief may be granted, or that seek monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion
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thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that . . . the action or appeal . . . fails to state a claim upon which relief may
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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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II.
Pleading Standard
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Section 1983 “provides a cause of action for the deprivation of any rights,
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privileges, or immunities secured by the Constitution and laws of the United States.”
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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).
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Section 1983 is not itself a source of substantive rights, but merely provides a method for
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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94
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(1989).
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To state a claim under § 1983, a plaintiff must allege two essential elements:
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(1) that a right secured by the Constitution or laws of the United States was violated and
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(2) that the alleged violation was committed by a person acting under the color of state
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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d
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1243, 1245 (9th Cir. 1987).
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A complaint must contain “a short and plain statement of the claim showing that
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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations
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are not required, but “[t]hreadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief
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that is plausible on its face.” Id. Facial plausibility demands more than the mere
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possibility that a defendant committed misconduct and, while factual allegations are
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accepted as true, legal conclusions are not. Id. at 677-78.
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III.
Plaintiff’s Allegations
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Plaintiff is incarcerated at California State Prison, Sacramento but complains of
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acts that occurred during his arrest and subsequent detention at the Merced County Jail.
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He names the following Defendants: Merced Police Department, Saovasang, Merced
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County Jail, Sergeant L. Munoz at North Kern State Prison, and Correctional Officer L.
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Jimenez at North Kern State Prison.
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His allegations may be summarized essentially as follows:
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Plaintiff was assaulted and found near a creek in Merced. Plaintiff’s probation
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officer, Defendant Saovasang did not initiate an investigation but instead put out a
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warrant for Plaintiff’s arrest. Plaintiff filed a false imprisonment complaint and was
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released. Plaintiff reported to Saovasang and showed him that he had a lip infection,
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wires, and stitches in his jaw. Plaintiff claims he required care that only Modesto
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Memorial Hospital could provide. Saovasang did not care and did nothing.
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Plaintiff was tazed by a Merced County Police Officer without reason. This
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occurred because Defendant Saovasang, did not give Plaintiff a bus ticket to Modesto to
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receive medical treatment. Plaintiff characterizes this conduct as a hate crime, false
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imprisonment, and retaliation. At some point thereafter, Plaintiff was taken to Modesto
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Memorial Hospital to have silver bullets removed.
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While in the Merced County Jail, Plaintiff fought another inmate and won. The
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losing inmate falsely accused Plaintiff of rape. This accusation was placed on Plaintiff’s
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“bail bonds and computers.” The subject inmate was released. The case later was
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dropped. Plaintiff should not have been housed with this inmate because the inmate is a
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sensitive needs inmate and Plaintiff is general population. Housing them together
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constitutes conspiracy to commit murder.
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Plaintiff seeks money damages.
IV.
Analysis
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A.
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Plaintiff names the Merced Police Department and Merced County Jail as
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Municipal Liability
Defendants. Plaintiff therefore appears to intend to assert a claim for municipal liability.
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“[S]ection 1983 imposes liability only on ‘persons’ who, under color of law, deprive
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others of their constitutional rights, [and] the Supreme Court has construed the term
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‘persons’ to include municipalities such as the County.” Castro v. Cty. of Los Angeles,
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797 F.3d 654, 670 (9th Cir. 2015) (citing Monell v. Dep’t of Social Services, 436 U.S.
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658, 690-91 (1978)). Counties may not be held liable for the actions of their employees
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under a theory of respondeat superior, but they may be held liable for a constitutional
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violation if an action taken pursuant to a policy, be it a formal or informal policy, caused
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the underlying violation. Castro, 797 F.3d at 670 (quotation marks omitted) (citing City of
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St. Louis v. Praprotnik, 485 U.S. 112, 131 (1989) and Monell, 436 U.S. at 691); see also
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Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010) (municipal liability
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claim cannot be maintained unless there is an underlying constitutional violation).
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Municipal liability may also be imposed where the local government unit’s
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omission led to the constitutional violation by its employee. Gibson v. Cty. Of Washoe,
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Nev., 290 F.3d 1175, 1186 (9th Cir. 2002). Under this route to municipal liability, the
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“plaintiff must show that the municipality’s deliberate indifference led to its omission and
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that the omission caused the employee to commit the constitutional violation.” Id. This
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kind of deliberate indifference is found when the need to remedy the omission is so
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obvious, and the failure to act so likely to result in the violation of rights, that the
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municipality reasonably can be said to have been deliberately indifferent when it failed to
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act. Id. at 1195.
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Here, Plaintiff does not link the alleged violation of his rights to any policy or
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practice attributable to the county. Nor does he provide facts to suggest that the county
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knew of, and blatantly ignored, constitutional violations committed by its employees.
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Accordingly, Plaintiff fails to state a claim against Merced County.
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He previously was advised of this standard and afforded the opportunity to cure
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noted defects. He failed to do so. Further leave to amend appears futile and will be
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denied. The Court will not further address Plaintiff’s claims against the Merced Police
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Department or the Merced County Jail.
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B.
North Kern State Prison Defendants
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In the body of his complaint, Plaintiff names Sergeant L. Munoz and Correctional
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Officer L. Jimenez at NKSP as Defendants. He does not state any factual allegations
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against either Defendant.
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As Plaintiff has been advised, Rule 10(a) of the Federal Rules of Civil Procedure
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requires that each defendant be named in the caption of the complaint. A complaint is
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subject to dismissal if “one cannot determine from the complaint who is being sued, [and]
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for what relief. . . .” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). As these
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individuals are not named in the caption, the Court is unable to determine whether
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Plaintiff intends to proceed against them.
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Additionally, Plaintiff has not demonstrated that these Defendants personally
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participated in the deprivation of his rights, as he fails to state any facts against them.
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Iqbal, 556 U.S. 662, 676-77 (2009); Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011,
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1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009);
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Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
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Finally, Plaintiff’s allegations relate to his arrest and detention in Merced County.
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It does not appear that claims against NKSP officials are properly joined in this action.
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As Plaintiff has been advised, Federal Rule of Civil Procedure 18(a) allows a party to
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“join, as independent or alternative claims, as many claims as it has against an opposing
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party.” However, Rule 20(a)(2) permits a plaintiff to sue multiple defendants in the same
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action only if “any right to relief is asserted against them jointly, severally, or in the
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alternative with respect to or arising out of the same transaction, occurrence, or series of
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transactions or occurrences,” and there is a “question of law or fact common to all
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defendants.” “Thus multiple claims against a single party are fine, but Claim A against
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Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated
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claims against different defendants belong in different suits . . .” See George v. Smith,
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507 F.3d 605, 607 (7th Cir.2007) (citing 28 U.S.C. § 1915(g)).
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These Defendants will be dismissed. To the extent Plaintiff intends to raise claims
against them, he must do so in a separate action.
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C.
Inadequate Medical Care
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It appears Plaintiff wishes to state a claim against Defendant Saovasang for
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failing to transport Plaintiff to Modesto for medical care after Plaintiff was released from
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jail. Pretrial detainees have a right to adequate medical care protected by the Fourteenth
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Amendment to the United States Constitution. Simmons v. Navajo County, Ariz., 609
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F.3d 1011, 1017-18 (9th Cir. 2010); Clouthier v. County of Contra Costa, 591 F.3d 1232,
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1244 (9th Cir. 2010). Prisoners have a right to adequate medical care protected by the
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Eighth Amendment. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). And, arrestees
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have a right protected to medical care protected by the Fourth Amendment. Tatum v.
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City & Cnty. of San Francisco, 441 F.3d 1090, 1099 (9th Cir. 2006).
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Plaintiff’s complaints against Saovasang appear to have arisen after he was
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released on probation. Thus, at that time, Plaintiff was not a detainee, a prisoner, or an
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arrestee. Plaintiff cites no authority to support the proposition that his probation officer
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was constitutionally required to provide him with transportation to another city for medical
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treatment, and the Court finds none.
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It is possible that the jail had some responsibility to provide limited attention for
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Plaintiff’s ongoing medical needs upon his release. See Wakefield v. Thompson, 177
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F.3d 1160, 1164 (9th Cir.1999) (holding that “the state must provide an outgoing
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prisoner who is receiving and continues to require medication with a supply sufficient to
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ensure that he has that medication available during the period of time reasonably
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necessary to permit him to consult a doctor and obtain a new supply”); see also Lugo v.
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Senkowski, 114 F. Supp. 2d 111, 115 (N.D.N.Y. 2000) (holding that the State “has a
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duty to provide medical services for an outgoing prisoner who is receiving continuing
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treatment at the time of his release for the period of time reasonably necessary for him to
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obtain treatment on his own behalf” (internal quotation marks and citation omitted)).
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However, the Court is unable to discern from the complaint whether Plaintiff had any
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such needs, if such needs went unfulfilled, or who was responsible for any deficiencies.
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Plaintiff already has been provided the legal standards applicable to medical care
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claims brought by pretrial detainees. He has failed to state a claim on that basis. He also
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fails to provide any basis for liability on the part of Defendant Saovasang. This claim will
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be dismissed. Further leave to amend will be denied.
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D.
Retaliation
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Plaintiff states that he wishes to bring a claim for retaliation.
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“Within the prison context, a viable claim of First Amendment retaliation entails
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five basic elements: (1) An assertion that a state actor took some adverse action against
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an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4)
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chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not
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reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,
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567-68 (9th Cir. 2005).
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The second element of a prisoner retaliation claim focuses on causation and
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motive. See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show
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that his protected conduct was a “‘substantial’ or ‘motivating’ factor behind the
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defendant’s conduct.” Id. (quoting Sorrano’s Gasco. Inc. v. Morgan, 874 F.2d 1310, 1314
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(9th Cir. 1989). Although it can be difficult to establish the motive or intent of the
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defendant, a plaintiff may rely on circumstantial evidence. Bruce v. Ylst, 351 F.3d 1283,
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1288-89 (9th Cir. 2003) (finding that a prisoner establishes a triable issue of fact
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regarding prison officials’ retaliatory motives by raising issues of suspect timing,
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evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997); Pratt
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v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“timing can properly be considered as
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circumstantial evidence of retaliatory intent”).
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The third prong can be satisfied by various activities. Filing a grievance is a
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protected action under the First Amendment. Valandingham v. Bojorquez, 866 F.2d
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1135, 1138 (9th Cir. 1989). Pursuing a civil rights litigation similarly is protected under
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the First Amendment. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985).
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With respect to the fourth prong, “[it] would be unjust to allow a defendant to
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escape liability for a First Amendment violation merely because an unusually determined
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plaintiff persists in his protected activity . . . .” Mendocino Envtl. Ctr. v. Mendocino Cnty.,
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192 F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an
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official’s acts would chill or silence a person of ordinary firmness from future First
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Amendment activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192
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F.3d at 1300).
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With respect to the fifth prong, a prisoner must affirmatively show that “the prison
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authorities’ retaliatory action did not advance legitimate goals of the correctional
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institution or was not tailored narrowly enough to achieve such goals.” Rizzo, 778 F.2d at
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532.
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Plaintiff does not allege that anyone took adverse action against him in response
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to Plaintiff engaging in protected activity. He fails to state a cognizable retaliation claim.
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He previously was advised of this defect and failed to cure it. This claim will be
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dismissed without further leave to amend.
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E.
Hate Crimes
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Plaintiff states his intent to bring a claim for hate crimes. He does not state the
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criminal statute on which such a claim rests. Regardless, however, a private right of
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action under a criminal statute has rarely been implied. Chrysler Corp. v. Brown, 441
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U.S. 281, 316 (1979). Where a private right of action has been implied, “there was at
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least a statutory basis for inferring that a civil cause of action of some sort lay in favor of
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someone.’” Id. at 316 (quoting Cort v. Ash, 422 U.S. 66, 79 (1975)).
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Plaintiff previously was advised of this defect. This claim will be dismissed without
further leave to amend.
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F.
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Plaintiff’s reference to hate crimes may be an attempt to bring a claim pursuant to
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Equal Protection
the Equal Protection clause of the Fourteenth Amendment.
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The Equal Protection Clause requires that persons who are similarly situated be
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treated alike. City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
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(1985). An equal protection claim may be established by showing that the defendant
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intentionally discriminated against the plaintiff based on the plaintiff's membership in a
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protected class, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Lee v. City of
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Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were
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intentionally treated differently without a rational relationship to a legitimate state
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purpose, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Lazy Y
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Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of
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Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).
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Plaintiff does not allege that he was treated differently from others similarly
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situated. He therefore fails to state a cognizable equal protection claim. He previously
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was advised of this defect and failed to cure it. This claim will be dismissed without
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further leave to amend.
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G.
Failure to Protect
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Plaintiff brings a new claim against the Merced County Jail for placing him in a cell
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with an inmate with whom he was not compatible. As stated above, Plaintiff has failed to
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allege sufficient facts to establish liability on the part of the municipality. Accordingly, the
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merits of this claim will not be addressed.
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H.
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Plaintiff brings a new claim alleging that he was tazed by a police officer without
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reason. He does not name any individual police officer as a Defendant. As stated above,
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he has not alleged sufficient facts to establish municipal liability on the part of the police
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department. Accordingly, the merits of this claim will not be addressed further.
Excessive Force
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I.
False Imprisonment
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Plaintiff’s claim for false imprisonment arises under state law.
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The Court may exercise supplemental jurisdiction over state law claims in any civil
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action in which it has original jurisdiction, if the state law claims form part of the same
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case or controversy. 28 U.S.C. § 1367(a). “The district courts may decline to exercise
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supplemental jurisdiction over a claim under subsection (a) if . . . the district court has
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dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). The
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Supreme Court has cautioned that “if the federal claims are dismissed before trial, . . .
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the state claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383
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U.S. 715, 726 (1966).
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Because Plaintiff has not alleged any cognizable federal claims, the Court will not
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exercise supplemental jurisdiction over his state law claim. 28 U.S.C. § 1367(a); Herman
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Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001). Plaintiff
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previously was advised of this defect. This claim will be dismissed without further leave
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to amend.
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V.
Conclusion and Order
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Plaintiff’s second amended complaint fails to state a cognizable claim. He
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previously was advised of pleading deficiencies and afforded the opportunity to correct
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them. He failed to do so. Any further leave to amend reasonably appears futile and will
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be denied.
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Accordingly, it is HEREBY ORDERED that:
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1.
The action is DISMISSED with prejudice for failure to state a claim;
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2.
Dismissal counts as a strike pursuant to the “three strikes” provision set
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forth in 28 U.S.C. § 1915(g); and
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The Clerk of the Court shall terminate all pending motions and close the
case.
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IT IS SO ORDERED.
Dated:
December 19, 2016
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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