Kinder v. Merced County
Filing
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ORDER DISMISSING CASE WITH LEAVE TO AMEND, signed by Magistrate Judge Michael J. Seng on 9/22/2016. First Amended Complaint due (30-Day Deadline) (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)
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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,
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CASE No. 1:16-cv-01311-MJS (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
v.
(ECF No. 1)
MERCED COUNTY,
THIRTY (30) DAY DEADLINE
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Defendant.
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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.
His complaint is before 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 North Kern State Prison but complains of acts that
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occurred during his arrest and subsequent detention at the Merced County Jail. He
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names Merced County as the sole defendant. His allegations may be summarized
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essentially as follows:
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In August 2015, Plaintiff was assaulted and found near a creek in Merced. The
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Merced Police Department transported Plaintiff to Modesto Memorial Hospital. There, he
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was seen by Dr. Huto who diagnosed Plaintiff with a broken jaw, contusions to the face,
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and blunt trauma. Plaintiff’s jaw was wired shut. He was prescribed antibiotics and pain
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medication and was given wax for his gums and straw drinks.
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Plaintiff’s probation officer is Mr. Saosavang. Mr. Saosavang was aware that
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Plaintiff was homeless and residing at the Salvation Army shelter. Plaintiff’s family
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contacted Mr. Saosavang in any attempt to find Plaintiff housing but Saosavang was
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unhelpful. Saosavang put a warrant out for Plaintiff’s arrest, and Plaintiff was arrested at
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the Salvation Army shelter.
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Plaintiff was detained at the Modesto County Jail and then transferred to the
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Merced County Jail. Plaintiff filed a complaint for false imprisonment and was released.
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He did not receive care or treatment for his injuries while he was detained.
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Upon his release, Saosavang refused to provide Plaintiff a ticket back to Modesto
to receive treatment. Only Dr. Huto is authorized to treat Plaintiff.
Plaintiff states claims for false imprisonment, “hate crimes,” and retaliation. He
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requests money damages.
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IV.
Analysis
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A.
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The only named defendant in this action is Merced County. Plaintiff therefore
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Municipal Liability
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. He will be given leave
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to amend.
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B.
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Plaintiff states allegations Mr. Saosavang, who is not named as a defendant in
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Allegations Against Non-Party Saosavang
this action.
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Rule 10(a) of the Federal Rules of Civil Procedure requires that each defendant
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be named in the caption of the complaint. A complaint is subject to dismissal if “one
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cannot determine from the complaint who is being sued, [and] for what relief. . . .”
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McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). As Saosavang is not named in
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the caption, the Court is unable to determine whether Plaintiff intends to proceed against
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him.
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Accordingly, the Court will not herein address allegations against non-party
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Saosavang. If Plaintiff wishes to pursue such allegations, he may amend his complaint
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and include Saosavang in the caption.
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C.
Linkage
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In the event Plaintiff wishes to proceed against any individual defendant, he is
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advised that, under § 1983, he must demonstrate that each named defendant personally
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participated in the deprivation of his rights. Iqbal, 556 U.S. 662, 676-77 (2009); Simmons
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v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton,
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588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
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2002). Liability may not be imposed on supervisory personnel under the theory of
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respondeat superior, as each defendant is only liable for his or her own misconduct.
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Iqbal, 556 U.S. at 676-77; Ewing, 588 F.3d at 1235. Supervisors may only be held liable
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if they “participated in or directed the violations, or knew of the violations and failed to act
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to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v.
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Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570
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(9th Cir. 2009); Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th
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Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).
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D.
Inadequate Medical Care
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The standard applicable to a pretrial detainee’s claim for inadequate medical care
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under the Fourteenth Amendment is presently not clear. In the past, such claims were
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subject to the same state of mind requirement as an Eighth Amendment violation, i.e.,
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subjective and deliberate indifference to a substantial risk of serious harm. See Clouthier
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v. County of Contra Costa, 591 F.3d 1232 (9th Cir. 2010). However, that holding was
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called into question by the United States Supreme Court in a Fourteenth Amendment
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excessive force case, Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). Most
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recently, the Ninth Circuit extended the Kingsley rationale to a Fourteenth Amendment
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failure-to-protect claim. Castro v. Cty. of Los Angeles, No. 12-56829, 2016 WL 4268955,
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at *7 (9th Cir. Aug. 15, 2016) (en banc) (slip op). Although Castro did not expressly
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extend its holding to other Fourteenth Amendment violations, the broad language therein
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indicates that the standard applicable to Eighth Amendment violations is no longer
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appropriate to analogous Fourteenth Amendment claims. The Court therefore will apply
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the Castro holding to Plaintiff’s claim for inadequate medical care.
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Accordingly, in order to proceed on such a claim, Plaintiff must allege “(1) The
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defendant made an intentional decision with respect to the conditions under which the
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plaintiff was confined; (2) Those conditions put the plaintiff at substantial risk of suffering
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serious harm;(3) The defendant did not take reasonable available measures to abate
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that risk, even though a reasonable officer in the circumstances would have appreciated
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the high degree of risk involved—making the consequences of the defendant's conduct
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obvious; and (4) By not taking such measures, the defendant caused the plaintiff's
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injuries.” Id. With respect to the third element, the defendant’s conduct must be
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“objectively unreasonable.” Id. (citing Kingsley, 135 S.Ct. at 2473).
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As stated, Plaintiff does not name any individual defendant in this action. If he
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chooses to amend, he must plead facts sufficient to suggest that a named defendant’s
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response to Plaintiff’s serious medical need was objectively unreasonable.
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E.
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 will be given leave to amend.
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F.
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 cannot
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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 may
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amend his state law claim but is advised that such claim will not be addressed in the
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absence of a cognizable federal claim. The legal standard applicable to Plaintiff’s state
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law claim is set out below.
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Under California law, false imprisonment is the “‘unlawful violation of the personal
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liberty of another.’” Martinez v. City of Los Angeles, 141 F.3d 1373, 1379 (9th Cir. 1998)
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(quoting Asgari v. City of Los Angeles, 15 Cal.4th 744, 757 (1997)). “There are two
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bases for claiming false imprisonment: imprisonment pursuant to a false arrest and
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unreasonable delay in bringing the arrested person before a judicial officer.” Estate of
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Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). The elements “‘of false
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imprisonment are: (1) the nonconsensual, intentional confinement of a person, (2)
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without lawful privilege, and (3) for an appreciable period of time, however brief.’” Young
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v. County of Los Angeles, 655 F.3d 1156, 1169 (9th Cir. 2011) (quoting Easton v. Sutter
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Coast Hospital, 80 Cal. App. 4th 485, 496 (Ct. App. 2000)).
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Furthermore, to bring a tort claim under California law, Plaintiff must allege
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compliance with the California Tort Claims Act (“CTCA”). Under the CTCA, a plaintiff
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may not maintain an action for damages against a public employee unless he has
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presented a written claim to the state Victim Compensation and Government Claims
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Board (“VCGCB”) within six months of accrual of the action. Cal. Gov't Code §§ 905,
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911.2(a), 945.4 & 950.2; Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477
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(9th Cir. 1995). Failure to demonstrate such compliance constitutes a failure to state a
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cause of action and will result in the dismissal of state law claims. State of California v.
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Superior Court (Bodde), 32 Cal.4th 1234, 1240 (2004).
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G.
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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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Hate Crimes
Plaintiff’s bare reference to hate crimes is insufficient to state a claim. He will be
given leave to amend.
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H.
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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 will be given
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leave to amend.
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V.
Conclusion and Order
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Plaintiff’s complaint does not state a cognizable claim for relief. The Court will
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grant Plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d
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1446, 1448-49 (9th Cir. 1987). If Plaintiff chooses to amend, he must demonstrate that
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the alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 556 U.S. at
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677-78. Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim that is
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plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff
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must also demonstrate that each named Defendant personally participated in a
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deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
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Plaintiff should note that although he has been given the opportunity to amend, it
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is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th
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Cir. 2007). Plaintiff should carefully read this screening order and focus his efforts on
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curing the deficiencies set forth above.
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Finally, Plaintiff is advised that Local Rule 220 requires that an amended
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complaint be complete in itself without reference to any prior pleading. As a general rule,
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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d
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55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no
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longer serves any function in the case. Therefore, in an amended complaint, as in an
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original complaint, each claim and the involvement of each defendant must be
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sufficiently alleged. The amended complaint should be clearly and boldly titled “First
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Amended Complaint,” refer to the appropriate case number, and be an original signed
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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.
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8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a
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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations
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omitted).
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Accordingly, it is HEREBY ORDERED that:
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1. Plaintiff’s complaint is dismissed for failure to state a claim upon which relief
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may be granted;
2. The Clerk’s Office shall send Plaintiff a blank civil rights complaint form and a
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copy of his complaint, filed September 6, 2016;
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3. Within thirty (30) days from the date of service of this order, Plaintiff must file a
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first amended complaint curing the deficiencies identified by the Court in this
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order or a notice of voluntary dismissal; and
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4. If Plaintiff fails to file an amended complaint or notice of voluntary dismissal,
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the Court will dismiss this action, with prejudice, for failure to comply with a
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court order and failure to state a claim, subject to the “three strikes” provision
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set forth in in 28 U.S.C. § 1915(g).
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IT IS SO ORDERED.
Dated:
September 22, 2016
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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