Ardell v. Sacramento Sheriff's Department et al

Filing 17

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/8/13 ORDERING that the February 5, 2013 findings and recommendations 7 are VACATED; and the complaint is DISMISSED with leave to amend within 30 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH SMITH ARDELL,
Plaintiff,

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No. 2:12-cv-2488 LKK EFB P

vs.
SACRAMENTO SHERIFF’S
DEPARTMENT, et al.,
Defendants.

ORDER
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Plaintiff proceeds pro se with this civil action. This proceeding was referred to this court

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by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). On February 5, 2013, the court

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recommended that this action be dismissed for failure to prosecute after plaintiff failed to keep

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the court apprised of his current address in accordance with Local Rule 183(b). Plaintiff

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subsequently filed objections, and notified the court of a change in address. Dckt. Nos. 12, 13.

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Accordingly, the court herein vacates the February 5, 2013 findings and recommendations and

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screens the complaint pursuant to 28 U.S.C. § 1915(e)(2).

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Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if

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it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to

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state a claim on which relief may be granted, or seeks monetary relief against an immune
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defendant. Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S.

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519, 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a

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claim if it fails to set forth “enough facts to state a claim to relief that is plausible on its face.”

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355

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U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the

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‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a

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formulaic recitation of a cause of action’s elements will not do. Factual allegations must be

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enough to raise a right to relief above the speculative level on the assumption that all of the

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complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate based either

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on the lack of cognizable legal theories or the lack of pleading sufficient facts to support

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cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

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the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must

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satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule

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8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the

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pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the

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grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)

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(citing Conley v. Gibson, 355 U.S. 41 (1957)).

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In dismissing the original complaint with leave to amend, the court informed plaintiff of

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the deficiencies in his complaint. See Dckt. No. 5. Specifically, the court noted that plaintiff

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failed to identify the individual officer who he claims violated his constitutional rights. Instead,

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plaintiff claimed that the “Sacramento Sheriff’s Department” and unnamed officers violated his

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rights. The court informed plaintiff that “[m]unicipalities and other local government units

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. . . [are] among those persons to whom § 1983 applies.” Monell v. Dep’t of Soc. Servs., 436
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U.S. 658, 690 (1978). However, a municipal entity or its departments, is liable under § 1983

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only if plaintiff shows that his constitutional injury was caused by employees acting pursuant to

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the municipality’s policy or custom. See Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950,

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964 (9th Cir. 2008) (citing 436 U.S. at 690-94).

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The court also informed plaintiff that his allegations were too vague and conclusory to

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state a cognizable claim for relief. Although the Federal Rules adopt a flexible pleading policy,

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a complaint must give fair notice and state the elements of the claim plainly and succinctly.

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Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). The court informed

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plaintiff that he must allege with at least some degree of particularity overt acts which

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defendants engaged in that support plaintiff’s claim. Id.

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In the amended complaint, plaintiff fails to cure these deficiencies. Plaintiff purports to

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state claims for violations of his civil rights, and lists four causes of action. He includes factual

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allegations suggesting that he may intend to pursue claims based on retaliation, the denial of

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medical care, excessive force, and/or conspiracy. While plaintiff links some of these factual

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allegations to specific individuals, he does not identify those individuals as defendants. If

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plaintiff intends to assert a claim against a specific person, he must identify that person as a

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defendant in the caption of the complaint. See Fed. R. Civ. P. 10(a). Plaintiff has failed to do

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this in his amended complaint.

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The only defendants identified in the amended complaint are the Sacramento Sheriff’s

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Department, the “Officer In-charge [at] Sacramento County Jail,” and Does 1-10.

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Despite the warnings in the initial screening order, the amended complaint does not include facts

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showing that an employee acting pursuant to a policy or custom of the Sacramento Sheriff’s

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Department caused plaintiff to suffer a constitutional injury. Thus, the amended complaint fails

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to state a cognizable claim against the Sacramento Sheriff’s Department.

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Plaintiff’s naming of Doe defendants does not cure these deficiencies. The use of Doe
defendants in federal court is problematic, see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
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1980), and ultimately unnecessary. Should plaintiff learn the identities of parties he wishes to

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serve, he must timely move pursuant to Rule 15 of the Federal Rules of Civil Procedure to file an

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amended complaint to add them as defendants. See Brass v. County of Los Angeles, 328 F.3d

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1192, 1197-98 (9th Cir. 2003). If the timing of his amended complaint raises questions as to the

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statute of limitations, plaintiff must satisfy the requirements of Rule 15(c), which is the

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controlling procedure for adding defendants whose identities were discovered after

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commencement of the action.1 It is these procedure, not the state court practice of naming

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fictitious defendants, that plaintiff must follow in seeking to add newly identified parties.

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For these reasons, plaintiff’s complaint must be dismissed. The court will, however,

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grant plaintiff leave to file an amended complaint. Plaintiff is hereby informed of the following

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legal standards that may be applicable to his intended claims for relief:

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To state a claim under 42 U.S.C. § 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 (2) that

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the alleged violation was committed by a person acting under the color of state law. West v.

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Atkins, 487 U.S. 42, 48 (1988).

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An individual defendant is not liable on a civil rights claim unless the facts establish the

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defendant’s personal involvement in the constitutional deprivation or a causal connection

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between the defendant’s wrongful conduct and the alleged constitutional deprivation. See

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Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th

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Cir. 1978). Plaintiff may not sue any official on the theory that the official is liable for the

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unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948

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(2009). Rather, a plaintiff must plead that each defendant, through his own individual actions,

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has violated the Constitution. Id. It is plaintiff’s responsibility to allege facts to state a plausible

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Additionally, unknown persons cannot be served with process until they are identified
by their real names and the court will not investigate the names and identities of unnamed
defendants.
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claim for relief. Iqbal, 129 S. Ct. at 1949; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.

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2009).

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“Municipalities and other local government units . . . [are] among those persons to whom

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§ 1983 applies.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). However, a

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municipal entity or its departments, is liable under § 1983 only if plaintiff shows that his

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constitutional injury was caused by employees acting pursuant to the municipality’s policy or

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custom. See Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 964 (9th Cir. 2008) (citing

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436 U.S. at 690-94). “[A]n act performed pursuant to a ‘custom’ that has not been formally

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approved by an appropriate decisionmaker may fairly subject a municipality to liability on the

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theory that the relevant practice is so widespread as to have the force of law.” Board of Cty.

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Comm'rs. of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997). A local governmental entity may

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also be liable if it has a “policy of inaction and such inaction amounts to a failure to protect

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constitutional rights.” Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992) (citing City of

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Canton v. Harris, 489 U.S. 378 (1989)); see also Monell, 436 U.S. at 690-91. The custom or

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policy of inaction, however, must be the result of a “conscious,” City of Canton, 489 U.S. at 389,

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or “‘deliberate choice to follow a course of action . . . made from among various alternatives by

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the official or officials responsible for establishing final policy with respect to the subject matter

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in question.’” Oviatt, 954 F.2d at 1477 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469,

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483-84 (1986) (plurality opinion)).

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To state a viable First Amendment retaliation claim, a prisoner must allege five elements:

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“(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3)

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that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his

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First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional

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goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Conduct protected by the

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First Amendment includes communications that are “part of the grievance process.” Brodheim,

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584 F.3d at 1271 n.4.
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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). Extreme deprivations are required to make out a conditions of confinement claim, and

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only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9 (1992). “ Prison officials have a duty to ensure that prisoners are provided

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adequate shelter, food, clothing, sanitation, medical care, and personal safety. The

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circumstances, nature, and duration of a deprivation of these necessities must be considered in

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determining whether a constitutional violation has occurred. The more basic the need, the

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shorter the time it can be withheld.” Johnson v. Lewis, 217 F.3d 726, 731-732 (9th Cir. 2000)

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(quotations and citations omitted).

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Negligence does not amount to a violation of a federal constitutional or statutory right.

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See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[A] prison official cannot be found liable

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under the Eighth Amendment . . . unless the official knows of and disregards an excessive risk to

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inmate health or safety[.]”); see also id. at 835 (“[D]eliberate indifference describes a state of

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mind more blameworthy than negligence.”).

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“[W]henever prison officials stand accused of using excessive physical force in violation

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of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . .: whether force was

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applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to

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cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). While malicious and sadistic uses

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of force always violate contemporary standards of decency, not every “malevolent touch” by a

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prison guard is actionable as an Eighth Amendment violation. Id. at 9. “The Eighth

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Amendment’s prohibition of cruel and unusual punishment necessarily excludes from

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constitutional recognition de minimis uses of physical force, provided that the use of force is not

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of a sort repugnant to the conscience of mankind.” Id. at 9-10 (internal quotation marks and

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citations omitted). What violates the Eighth Amendment is “the unnecessary and wanton
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infliction of pain,” i.e., infliction of suffering that is “totally without penological justification.”

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Rhodes v. Chapman, 452 U.S. 337, 346 (1981).

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The following factors are relevant to a determination of whether a use of force violated

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the Eighth Amendment: (1) the need for the use of force; (2) the relationship between the need

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for force and the amount used; (3) the extent of injury inflicted; (4) the extent of the threat the

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officers reasonably perceived the plaintiff to pose to staff and inmate safety; and (5) any efforts

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made to temper the severity of the forceful response. Whitley v. Albers, 475 U.S. 312, 321

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(1986).

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To succeed on an Eighth Amendment claim predicated on the denial of medical care, a

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plaintiff must establish that he had a serious medical need and that the defendant’s response to

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that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see

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also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to

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treat the condition could result in further significant injury or the unnecessary and wanton

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infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial,

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delay or intentional interference with medical treatment or by the way in which medical care is

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provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). To act with

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deliberate indifference, a prison official must both be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists, and he must also draw the

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inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if he

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knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing to

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take reasonable measures to abate it.” Id. at 847. “[I]t is enough that the official acted or failed

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to act despite his knowledge of a substantial risk of serious harm.” Id. at 842. A physician need

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not fail to treat an inmate altogether in order to violate that inmate’s Eighth Amendment rights.

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Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a

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serious medical condition, even if some treatment is prescribed, may constitute deliberate

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indifference in a particular case. Id. It is well established that mere differences of opinion
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concerning the appropriate treatment cannot be the basis of an Eighth Amendment violation.

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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344

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(9th Cir. 1981).

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In order to state a claim for conspiracy, plaintiff must allege specific facts showing two

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or more persons intended to accomplish an unlawful objective of causing plaintiff harm and took

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some concerted action in furtherance thereof. Gilbrook v. City of Westminster, 177 F.3d 839,

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856-57 (9th Cir. 1999); Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (to state claim for

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conspiracy under § 1983, plaintiff must allege facts showing an agreement among the alleged

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conspirators to deprive him of his rights); Delew v. Wagner, 143 F.3d 1219, 1223 (9th Cir. 1998)

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(to state claim for conspiracy under § 1983, plaintiff must allege at least facts from which such

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an agreement to deprive him of rights may be inferred); Burns v. County of King, 883 F.2d 819,

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821 (9th Cir. 1989) (per curiam) (conclusory allegations of conspiracy insufficient to state a

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valid § 1983 claim); Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir.

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1988).

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Plaintiff will be granted leave to file an amended complaint, if plaintiff can allege a

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cognizable legal theory against a proper defendant and sufficient facts in support of that

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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

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shall clearly set forth the claims and allegations against each defendant. Any amended

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complaint must cure the deficiencies identified above and also adhere to the following

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requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he
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is legally required to do that causes the alleged deprivation). It must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims in an

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amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”

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complaints).

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Accordingly, IT IS HEREBY ORDERED that:

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1. The February 5, 2013 findings and recommendations (Dckt. No. 7) are vacated; and

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2. The complaint is dismissed with leave to amend within 30 days. The amended

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complaint must bear the docket number assigned to this case and be titled “First Amended

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Complaint.” Failure to comply with this order may result in a recommendation that this action

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be dismissed.

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Dated: April 8, 2013.

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