Gilchrist v. Yolo County District Attorney Office et al

Filing 8

ORDER signed by Magistrate Judge Dale A. Drozd on 3/27/15 ORDERING that Plaintiff's motion to proceed in forma pauperis (Doc. No. 6 ) is granted. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's complaint is DISMISSED with 30 days to file an amended complaint. Clerk of the Court is directed to send plaintiff the courts form for filing a civil rights action.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSHUA J. GILCHRIST,

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Plaintiff,
v.

ORDER

YOLO COUNTY DISTRICT
ATTORNEY‟S OFFICE et al.,
Defendants.

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No. 2:14-cv-2040 DAD P

Plaintiff is a county jail inmate proceeding pro se. Plaintiff seeks relief pursuant to 42

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U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. §

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1915. This action was referred to the undersigned by Local Rule 302 pursuant to 28 U.S.C. §

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636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §
1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff‟s county jail trust

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account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for

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monthly payments of twenty percent of the preceding month‟s income credited to plaintiff‟s
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county jail account. These payments will be forwarded by the appropriate agency to the Clerk of

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the Court each time the amount in plaintiff‟s account exceeds $10.00, until the filing fee is paid in

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full. 28 U.S.C. § 1915(b)(2).

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SCREENING REQUIREMENT
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. §

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1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims

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that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915A(b)(1) & (2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only „a short and plain

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statement of the claim showing that the pleader is entitled to relief,‟ in order to „give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.‟” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff‟s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person „subjects‟ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
PLAINTIFF’S COMPLAINT

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In the present case, plaintiff has identified as defendants the Yolo County District

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Attorney‟s Office, attorney Steven Sabbadini, Yolo County Superior Court Judge Richardson, the

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Yolo County Superior Court, Deputy District Attorney Matthew De Moura, the Monroe

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Detention Center, and Yolo County. In his complaint plaintiff alleges that he has been falsely

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charged and incarcerated and that the named defendants have tampered with evidence and

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engaged in a fraudulent prosecution against him on the charge of possession of a firearm by a

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convicted felon. As a result of his incarceration, plaintiff alleges that he was raped by two

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inmates with the assistance of two correctional officers and now suffers from permanent penile

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dysfunction. Plaintiff also alleges that he has been denied effective assistance of counsel and is

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being illegally detained. (Compl. at 1-16.)

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DISCUSSION

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The allegations in plaintiff‟s complaint are so vague and conclusory that the court is

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unable to determine whether the current action is frivolous or fails to state a claim for relief. The

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complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2).

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Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to

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the defendants and must allege facts that support 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). Plaintiff must allege

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with at least some degree of particularity overt acts which defendants engaged in that support his

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claims. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P.

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8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an amended

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complaint.

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If plaintiff chooses to file an amended complaint, he must allege therein facts

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demonstrating how the conditions complained of resulted in a deprivation of her federal

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constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The

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amended complaint must also allege in specific terms how each named defendant was involved in

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the deprivation of plaintiff‟s rights. This is because there can be no liability under 42 U.S.C. §

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1983 unless there is some affirmative link or connection between a defendant‟s actions and the

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claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167

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(9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of

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Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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Plaintiff‟s complaint suffers from a number of additional deficiencies. As an initial

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matter, plaintiff is advised that a petition for writ of habeas corpus is the proper mechanism for a

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prisoner seeking to challenge the fact or duration of his confinement. See Preiser v. Rodriguez,

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411 U.S. 475, 484 (1973). Insofar as plaintiff wishes to challenge the legality of a conviction that

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has led to his current incarceration he must file a habeas corpus action. This is a civil rights
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action. A civil rights action is the proper mechanism for a prisoner seeking to challenge the

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conditions of his confinement. See 42 U.S.C. § 1983; Badea v. Cox, 931 F.2d 573, 574 (9th Cir.

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1991).

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In his complaint plaintiff has made very serious allegations about being raped by two

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inmates who were assisted by correctional officers. However, plaintiff has not named any

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correctional officers as defendants in this case. If plaintiff wishes to bring claims against the

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correctional officers for failing to protect him from serious harm, he may be able to state an

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Eighth Amendment claim against them. It is well established that “prison officials have a duty

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. . . to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511

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U.S. 825, 833 (1994). “Being violently assaulted in prison is simply not „part of the penalty that

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criminal offenders pay for their offense against society.‟” Id. at 834.

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If plaintiff wishes to proceed on a failure to protect claim, he should name the allegedly

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responsible correctional officers as defendants in any amended complaint he elects to file. In

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addition, he must allege facts that, if proven, would establish that subjectively each defendant had

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a culpable state of mind in allowing or causing the plaintiff‟s rape to occur. Farmer, 511 U.S. at

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834. A prison official violates the Eighth Amendment “only if he knows that inmates face a

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substantial risk of serious harm and disregards that risk by failing to take reasonable measures to

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abate it.” Id. at 847. Under this standard, a prison official must have a “sufficiently culpable

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state of mind,” one of deliberate indifference to the inmate‟s health or safety. Id.

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Plaintiff has also alleged in his complaint that he did not receive proper medical care after

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he was assaulted. Again, plaintiff has not named any medical personnel as defendants in this

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action. If plaintiff wishes to bring claims against the medical personnel for failing to provide him

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with adequate medical care, he may be able to state an Eighth Amendment claim against them.

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Plaintiff is advised, however, that inadequate medical care does not constitute cruel and unusual

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punishment cognizable under § 1983 unless the mistreatment rises to the level of “deliberate

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indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). In general,

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deliberate indifference may be shown when prison officials deny, delay, or intentionally interfere

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with medical treatment, or may be shown by the way in which prison officials provide medical
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care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988).
If plaintiff wishes to proceed on a claim that he was provided constitutionally inadequate

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medical care, he should name the medical personnel or officials who allegedly failed to provide

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him with proper care as defendants in any amended complaint he elects to file. In addition, he

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must allege therein facts demonstrating how each named defendant‟s actions rose to the level of

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“deliberate indifference.” Plaintiff is advised that mere differences of opinion between a prisoner

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and prison medical staff as to the proper course of treatment for a medical condition do not give

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rise to a § 1983 claim. See Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1058 (9th Cir. 2004);

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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th

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Cir. 1989); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
In addition, before it can be said that a prisoner‟s civil rights have been abridged, “the

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indifference to his medical needs must be substantial. Mere „indifference,‟ „negligence,‟ or

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„medical malpractice‟ will not support this cause of action.” Broughton v. Cutter Lab., 622 F.2d

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458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). See also Wood v. Housewright, 900

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F.2d 1332, 1334 (9th Cir. 1990) (“In determining deliberate indifference, we scrutinize the

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particular facts and look for substantial indifference in the individual case, indicating more than

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mere negligence or isolated occurrences of neglect.”).

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Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S.

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at 104-05. To establish a claim of deliberate indifference arising from delay in providing care,

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however, a plaintiff must allege facts showing that the delay was harmful. See Berry v. Bunnell,

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39 F.3d 1056, 1057 (9th Cir. 1994); Hunt v. Dental Dep‟t, 865 F.2d 198, 200 (9th Cir. 1989);

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Shapley v. Nevada Bd. of State Prison Comm‟rs, 766 F.2d 404, 407 (9th Cir. 1985). In this

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regard, “[a] prisoner need not show his harm was substantial; however, such would provide

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additional support for the inmate‟s claim that the defendant was deliberately indifferent to his

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needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Next, the court observes that plaintiff has named Yolo County as a defendant and appears

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to take issue with unspecified policies at the County‟s Monroe Detention Center. Plaintiff is

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advised that a plaintiff must satisfy four conditions in order to establish municipal liability: “(1)
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that [the plaintiff] possessed a constitutional right of which he was deprived; (2) that the

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municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff‟s

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constitutional right and (4) that the policy is the moving force behind the constitutional violation.”

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Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996) (internal quotations omitted). In

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any amended complaint plaintiff elects to file, he should identify the policy (or policies) pertinent

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to his claims. He must also allege therein facts that show he was raped and/or received

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inadequate medical care pursuant to the policy and that the policy was the “moving force” or

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cause of his injury. Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012).

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Finally, plaintiff has named several individuals as defendants who are entitled to

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immunity from damages or are not “state actors” for purposes of § 1983. For example, Yolo

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County Superior Court Judge Richardson is entitled to absolute immunity from damages under §

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1983 for acting within the course and scope of judicial duties. See Pierson v. Ray, 386 U.S. 547,

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553–54 (1967); Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004)

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(“Absolute immunity is generally accorded to judges and prosecutors functioning in their official

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capacities”). Similarly, Deputy District Attorney Matthew DeMoura is entitled to absolute

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immunity for engaging “in activities „intimately associated with the judicial phase of the criminal

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process.‟” Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) (quoting Imbler v. Pachtman,

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424 U.S. 409, 430 (1976)). See also Ewing v. City of Stockton, 588 F.3d 1218, 1233 (9th Cir.

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2009); Ashel man v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc) (“Prosecutors are

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absolutely immune for quasi-judicial activities taken within the scope of their authority.”).

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Lastly, plaintiff‟s defense attorney, Steven Sabbadini, is not a “state actor” for purposes of §

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1983. See Miranda v. Clark County, 319 F.3d 465 (9th Ci r.2003) (en banc) (a public defender is

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not a state actor); Briley v. State of California, 564 F.2d 849, 855 (9th Cir.1977) (“We have

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repeatedly held that a privately-retained attorney does not act under color of state law for

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purposes of actions brought under the Civil Rights Act.”). If plaintiff elects to file an amended

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complaint, he should not name these individuals as defendants in any § 1983 he wishes to attempt

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to pursue.

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Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff‟s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in any amended complaint plaintiff elects to

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file, as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff‟s motion to proceed in forma pauperis (Doc. No. 6) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The fee

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shall be collected and paid in accordance with this court‟s order to the Sheriff of Yolo County

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filed concurrently herewith.

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3. Plaintiff‟s complaint is dismissed.

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4. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned to this case and must be labeled “Amended Complaint”; failure to file an amended

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complaint in accordance with this order will result in a recommendation that this action be

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dismissed without prejudice.

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5. The Clerk of the Court is directed to send plaintiff the court‟s form for filing a civil

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rights action.

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Dated: March 27, 2015

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DAD:9
gilc2040.14

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