Kinder v. Merced County

Filing 9

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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 BOBBY LEE KINDER, JR., 11 Plaintiff, 12 13 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 14 Defendant. 15 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 18 rights action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate 19 Judge jurisdiction. No other parties have appeared in the action. His complaint is before the Court for screening. 20 21 I. Screening Requirement 22 The Court is required to screen complaints brought by prisoners seeking relief 23 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has 25 raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which 26 relief may be granted, or that seek monetary relief from a defendant who is immune from 27 such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion 28 thereof, that may have been paid, the court shall dismiss the case at any time if the court 1 determines that . . . the action or appeal . . . fails to state a claim upon which relief may 2 be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 3 II. Pleading Standard 4 Section 1983 “provides a cause of action for the deprivation of any rights, 5 privileges, or immunities secured by the Constitution and laws of the United States.” 6 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). 7 Section 1983 is not itself a source of substantive rights, but merely provides a method for 8 vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 9 (1989). 10 To state a claim under § 1983, a plaintiff must allege two essential elements: 11 (1) that a right secured by the Constitution or laws of the United States was violated and 12 (2) that the alleged violation was committed by a person acting under the color of state 13 law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 14 1243, 1245 (9th Cir. 1987). 15 A complaint must contain “a short and plain statement of the claim showing that 16 the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 17 are not required, but “[t]hreadbare recitals of the elements of a cause of action, 18 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 19 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 20 Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief 21 that is plausible on its face.” Id. Facial plausibility demands more than the mere 22 possibility that a defendant committed misconduct and, while factual allegations are 23 accepted as true, legal conclusions are not. Id. at 677-78. 24 III. Plaintiff’s Allegations 25 Plaintiff is incarcerated at North Kern State Prison but complains of acts that 26 occurred during his arrest and subsequent detention at the Merced County Jail. He 27 names Merced County as the sole defendant. His allegations may be summarized 28 essentially as follows: 2 1 In August 2015, Plaintiff was assaulted and found near a creek in Merced. The 2 Merced Police Department transported Plaintiff to Modesto Memorial Hospital. There, he 3 was seen by Dr. Huto who diagnosed Plaintiff with a broken jaw, contusions to the face, 4 and blunt trauma. Plaintiff’s jaw was wired shut. He was prescribed antibiotics and pain 5 medication and was given wax for his gums and straw drinks. 6 Plaintiff’s probation officer is Mr. Saosavang. Mr. Saosavang was aware that 7 Plaintiff was homeless and residing at the Salvation Army shelter. Plaintiff’s family 8 contacted Mr. Saosavang in any attempt to find Plaintiff housing but Saosavang was 9 unhelpful. Saosavang put a warrant out for Plaintiff’s arrest, and Plaintiff was arrested at 10 the Salvation Army shelter. 11 Plaintiff was detained at the Modesto County Jail and then transferred to the 12 Merced County Jail. Plaintiff filed a complaint for false imprisonment and was released. 13 He did not receive care or treatment for his injuries while he was detained. 14 15 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 16 17 requests money damages. 18 IV. Analysis 19 A. 20 The only named defendant in this action is Merced County. Plaintiff therefore 21 Municipal Liability appears to intend to assert a claim for municipal liability. 22 “[S]ection 1983 imposes liability only on ‘persons’ who, under color of law, deprive 23 others of their constitutional rights, [and] the Supreme Court has construed the term 24 ‘persons’ to include municipalities such as the County.” Castro v. Cty. of Los Angeles, 25 797 F.3d 654, 670 (9th Cir. 2015) (citing Monell v. Dep’t of Social Services, 436 U.S. 26 658, 690-91 (1978)). Counties may not be held liable for the actions of their employees 27 under a theory of respondeat superior, but they may be held liable for a constitutional 28 violation if an action taken pursuant to a policy, be it a formal or informal policy, caused 3 1 the underlying violation. Castro, 797 F.3d at 670 (quotation marks omitted) (citing City of 2 St. Louis v. Praprotnik, 485 U.S. 112, 131 (1989) and Monell, 436 U.S. at 691); see also 3 Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010) (municipal liability 4 claim cannot be maintained unless there is an underlying constitutional violation). 5 Municipal liability may also be imposed where the local government unit’s 6 omission led to the constitutional violation by its employee. Gibson v. Cty. Of Washoe, 7 Nev., 290 F.3d 1175, 1186 (9th Cir. 2002). Under this route to municipal liability, the 8 “plaintiff must show that the municipality’s deliberate indifference led to its omission and 9 that the omission caused the employee to commit the constitutional violation.” Id. This 10 kind of deliberate indifference is found when the need to remedy the omission is so 11 obvious, and the failure to act so likely to result in the violation of rights, that the 12 municipality reasonably can be said to have been deliberately indifferent when it failed to 13 act. Id. at 1195. 14 Here, Plaintiff does not link the alleged violation of his rights to any policy or 15 practice attributable to the county. Nor does he provide facts to suggest that the county 16 knew of, and blatantly ignored, constitutional violations committed by its employees. 17 Accordingly, Plaintiff fails to state a claim against Merced County. He will be given leave 18 to amend. 19 B. 20 Plaintiff states allegations Mr. Saosavang, who is not named as a defendant in 21 Allegations Against Non-Party Saosavang this action. 22 Rule 10(a) of the Federal Rules of Civil Procedure requires that each defendant 23 be named in the caption of the complaint. A complaint is subject to dismissal if “one 24 cannot determine from the complaint who is being sued, [and] for what relief. . . .” 25 McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). As Saosavang is not named in 26 the caption, the Court is unable to determine whether Plaintiff intends to proceed against 27 him. 28 4 1 Accordingly, the Court will not herein address allegations against non-party 2 Saosavang. If Plaintiff wishes to pursue such allegations, he may amend his complaint 3 and include Saosavang in the caption. 4 C. Linkage 5 In the event Plaintiff wishes to proceed against any individual defendant, he is 6 advised that, under § 1983, he must demonstrate that each named defendant personally 7 participated in the deprivation of his rights. Iqbal, 556 U.S. 662, 676-77 (2009); Simmons 8 v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 9 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 10 2002). Liability may not be imposed on supervisory personnel under the theory of 11 respondeat superior, as each defendant is only liable for his or her own misconduct. 12 Iqbal, 556 U.S. at 676-77; Ewing, 588 F.3d at 1235. Supervisors may only be held liable 13 if they “participated in or directed the violations, or knew of the violations and failed to act 14 to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. 15 Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 16 (9th Cir. 2009); Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th 17 Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). 18 D. Inadequate Medical Care 19 The standard applicable to a pretrial detainee’s claim for inadequate medical care 20 under the Fourteenth Amendment is presently not clear. In the past, such claims were 21 subject to the same state of mind requirement as an Eighth Amendment violation, i.e., 22 subjective and deliberate indifference to a substantial risk of serious harm. See Clouthier 23 v. County of Contra Costa, 591 F.3d 1232 (9th Cir. 2010). However, that holding was 24 called into question by the United States Supreme Court in a Fourteenth Amendment 25 excessive force case, Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). Most 26 recently, the Ninth Circuit extended the Kingsley rationale to a Fourteenth Amendment 27 failure-to-protect claim. Castro v. Cty. of Los Angeles, No. 12-56829, 2016 WL 4268955, 28 at *7 (9th Cir. Aug. 15, 2016) (en banc) (slip op). Although Castro did not expressly 5 1 extend its holding to other Fourteenth Amendment violations, the broad language therein 2 indicates that the standard applicable to Eighth Amendment violations is no longer 3 appropriate to analogous Fourteenth Amendment claims. The Court therefore will apply 4 the Castro holding to Plaintiff’s claim for inadequate medical care. 5 Accordingly, in order to proceed on such a claim, Plaintiff must allege “(1) The 6 defendant made an intentional decision with respect to the conditions under which the 7 plaintiff was confined; (2) Those conditions put the plaintiff at substantial risk of suffering 8 serious harm;(3) The defendant did not take reasonable available measures to abate 9 that risk, even though a reasonable officer in the circumstances would have appreciated 10 the high degree of risk involved—making the consequences of the defendant's conduct 11 obvious; and (4) By not taking such measures, the defendant caused the plaintiff's 12 injuries.” Id. With respect to the third element, the defendant’s conduct must be 13 “objectively unreasonable.” Id. (citing Kingsley, 135 S.Ct. at 2473). 14 As stated, Plaintiff does not name any individual defendant in this action. If he 15 chooses to amend, he must plead facts sufficient to suggest that a named defendant’s 16 response to Plaintiff’s serious medical need was objectively unreasonable. 17 E. Retaliation 18 Plaintiff states that he wishes to bring a claim for retaliation. 19 “Within the prison context, a viable claim of First Amendment retaliation entails 20 five basic elements: (1) An assertion that a state actor took some adverse action against 21 an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 22 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 23 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 24 567-68 (9th Cir. 2005). 25 The second element of a prisoner retaliation claim focuses on causation and 26 motive. See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show 27 that his protected conduct was a “‘substantial’ or ‘motivating’ factor behind the 28 defendant’s conduct.” Id. (quoting Sorrano’s Gasco. Inc. v. Morgan, 874 F.2d 1310, 1314 6 1 (9th Cir. 1989). Although it can be difficult to establish the motive or intent of the 2 defendant, a plaintiff may rely on circumstantial evidence. Bruce v. Ylst, 351 F.3d 1283, 3 1288-89 (9th Cir. 2003) (finding that a prisoner establishes a triable issue of fact 4 regarding prison officials’ retaliatory motives by raising issues of suspect timing, 5 evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997); Pratt 6 v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“timing can properly be considered as 7 circumstantial evidence of retaliatory intent”). 8 The third prong can be satisfied by various activities. Filing a grievance is a 9 protected action under the First Amendment. Valandingham v. Bojorquez, 866 F.2d 10 1135, 1138 (9th Cir. 1989). Pursuing a civil rights litigation similarly is protected under 11 the First Amendment. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). 12 With respect to the fourth prong, “[it] would be unjust to allow a defendant to 13 escape liability for a First Amendment violation merely because an unusually determined 14 plaintiff persists in his protected activity . . . .” Mendocino Envtl. Ctr. v. Mendocino Cnty., 15 192 F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an 16 official’s acts would chill or silence a person of ordinary firmness from future First 17 Amendment activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192 18 F.3d at 1300). 19 With respect to the fifth prong, a prisoner must affirmatively show that “the prison 20 authorities’ retaliatory action did not advance legitimate goals of the correctional 21 institution or was not tailored narrowly enough to achieve such goals.” Rizzo, 778 F.2d at 22 532. 23 Plaintiff does not allege that anyone took adverse action against him in response 24 to Plaintiff engaging in protected activity. He fails to state a cognizable retaliation claim. 25 He will be given leave to amend. 26 F. False Imprisonment 27 Plaintiff’s claim for false imprisonment arises under state law. 28 7 1 The Court may exercise supplemental jurisdiction over state law claims in any civil 2 action in which it has original jurisdiction, if the state law claims form part of the same 3 case or controversy. 28 U.S.C. § 1367(a). “The district courts may decline to exercise 4 supplemental jurisdiction over a claim under subsection (a) if . . . the district court has 5 dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). The 6 Supreme Court has cautioned that “if the federal claims are dismissed before trial, . . . 7 the state claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 8 U.S. 715, 726 (1966). 9 Because Plaintiff has not alleged any cognizable federal claims, the Court cannot 10 exercise supplemental jurisdiction over his state law claim. 28 U.S.C. § 1367(a); Herman 11 Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001). Plaintiff may 12 amend his state law claim but is advised that such claim will not be addressed in the 13 absence of a cognizable federal claim. The legal standard applicable to Plaintiff’s state 14 law claim is set out below. 15 Under California law, false imprisonment is the “‘unlawful violation of the personal 16 liberty of another.’” Martinez v. City of Los Angeles, 141 F.3d 1373, 1379 (9th Cir. 1998) 17 (quoting Asgari v. City of Los Angeles, 15 Cal.4th 744, 757 (1997)). “There are two 18 bases for claiming false imprisonment: imprisonment pursuant to a false arrest and 19 unreasonable delay in bringing the arrested person before a judicial officer.” Estate of 20 Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). The elements “‘of false 21 imprisonment are: (1) the nonconsensual, intentional confinement of a person, (2) 22 without lawful privilege, and (3) for an appreciable period of time, however brief.’” Young 23 v. County of Los Angeles, 655 F.3d 1156, 1169 (9th Cir. 2011) (quoting Easton v. Sutter 24 Coast Hospital, 80 Cal. App. 4th 485, 496 (Ct. App. 2000)). 25 Furthermore, to bring a tort claim under California law, Plaintiff must allege 26 compliance with the California Tort Claims Act (“CTCA”). Under the CTCA, a plaintiff 27 may not maintain an action for damages against a public employee unless he has 28 presented a written claim to the state Victim Compensation and Government Claims 8 1 Board (“VCGCB”) within six months of accrual of the action. Cal. Gov't Code §§ 905, 2 911.2(a), 945.4 & 950.2; Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 3 (9th Cir. 1995). Failure to demonstrate such compliance constitutes a failure to state a 4 cause of action and will result in the dismissal of state law claims. State of California v. 5 Superior Court (Bodde), 32 Cal.4th 1234, 1240 (2004). 6 G. 7 Plaintiff states his intent to bring a claim for hate crimes. He does not state the 8 criminal statute on which such a claim rests. Regardless, however, a private right of 9 action under a criminal statute has rarely been implied. Chrysler Corp. v. Brown, 441 10 U.S. 281, 316 (1979). Where a private right of action has been implied, “there was at 11 least a statutory basis for inferring that a civil cause of action of some sort lay in favor of 12 someone.’” Id. at 316 (quoting Cort v. Ash, 422 U.S. 66, 79 (1975)). 13 14 Hate Crimes Plaintiff’s bare reference to hate crimes is insufficient to state a claim. He will be given leave to amend. 15 H. 16 Plaintiff’s reference to hate crimes may be an attempt to bring a claim pursuant to 17 Equal Protection the Equal Protection clause of the Fourteenth Amendment. 18 The Equal Protection Clause requires that persons who are similarly situated be 19 treated alike. City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 20 (1985). An equal protection claim may be established by showing that the defendant 21 intentionally discriminated against the plaintiff based on the plaintiff's membership in a 22 protected class, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Lee v. City of 23 Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were 24 intentionally treated differently without a rational relationship to a legitimate state 25 purpose, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Lazy Y 26 Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of 27 Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 28 9 1 Plaintiff does not allege that he was treated differently from others similarly 2 situated. He therefore fails to state a cognizable equal protection claim. He will be given 3 leave to amend. 4 V. Conclusion and Order 5 Plaintiff’s complaint does not state a cognizable claim for relief. The Court will 6 grant Plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 7 1446, 1448-49 (9th Cir. 1987). If Plaintiff chooses to amend, he must demonstrate that 8 the alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 556 U.S. at 9 677-78. Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim that is 10 plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff 11 must also demonstrate that each named Defendant personally participated in a 12 deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 13 Plaintiff should note that although he has been given the opportunity to amend, it 14 is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th 15 Cir. 2007). Plaintiff should carefully read this screening order and focus his efforts on 16 curing the deficiencies set forth above. 17 Finally, Plaintiff is advised that Local Rule 220 requires that an amended 18 complaint be complete in itself without reference to any prior pleading. As a general rule, 19 an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 20 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no 21 longer serves any function in the case. Therefore, in an amended complaint, as in an 22 original complaint, each claim and the involvement of each defendant must be 23 sufficiently alleged. The amended complaint should be clearly and boldly titled “First 24 Amended Complaint,” refer to the appropriate case number, and be an original signed 25 under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P. 26 8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a 27 right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations 28 omitted). 10 1 Accordingly, it is HEREBY ORDERED that: 2 1. Plaintiff’s complaint is dismissed for failure to state a claim upon which relief 3 4 may be granted; 2. The Clerk’s Office shall send Plaintiff a blank civil rights complaint form and a 5 copy of his complaint, filed September 6, 2016; 6 3. Within thirty (30) days from the date of service of this order, Plaintiff must file a 7 first amended complaint curing the deficiencies identified by the Court in this 8 order or a notice of voluntary dismissal; and 9 4. If Plaintiff fails to file an amended complaint or notice of voluntary dismissal, 10 the Court will dismiss this action, with prejudice, for failure to comply with a 11 court order and failure to state a claim, subject to the “three strikes” provision 12 set forth in in 28 U.S.C. § 1915(g). 13 14 15 16 IT IS SO ORDERED. Dated: September 22, 2016 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 11

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