Johnson v. San Joaquin County Sheriff Department

Filing 8

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/13/17 RECOMMENDING that Plaintiff's claims against the Doe defendants be dismissed without prejudice to refilling an action against these defendants should plaint iff learn their true names; Plaintiff's claims against defendant San Joaquin County Sheriff's Department be dismissed without leave to amend; and the Clerk close this case. Referred to Judge Kimberly J. Mueller; Objections to these F&Rs due within 14 days. (Benson, A.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL JOHNSON, 12 13 14 15 No. 2:14-cv-2485-KJM-EFB PS Plaintiff, v. FINDINGS AND RECOMMENDATIONS SAN JOAQUIN COUNTY SHERIFF’S DEPARTMENT, Does 1-10, Defendant. 16 17 18 The court previously granted plaintiff’s request for leave to proceed in forma pauperis, 19 but dismissed his complaint with leave to amend pursuant to 28 U.S.C. 1915(e)(2).1 Plaintiff has 20 since filed a first amended complaint. However, his amended complaint fails to cure the defects 21 that resulted in the dismissal of the original complaint and it, too, must be dismissed. 22 As previously explained to plaintiff, although pro se pleadings are liberally construed, see 23 Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be 24 dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief 25 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) 26 (citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s 27 28 1 This case, in which plaintiff is proceeding in propria persona, was referred to the undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 1 obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and 2 conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual 3 allegations must be enough to raise a right to relief above the speculative level on the assumption 4 that all of the complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate 5 based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to 6 support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 7 1990). 8 Under this standard, the court must accept as true the allegations of the complaint in 9 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 10 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 11 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 12 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 13 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 14 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 15 which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)). 16 Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only 17 those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 18 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, 19 confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction 20 requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a 21 “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be 22 authorized by a federal statute that both regulates a specific subject matter and confers federal 23 jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity 24 jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the 25 matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World 26 Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction 27 of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of 28 ///// 2 1 subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys 2 Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). 3 Plaintiff’s original complaint alleged that he was house-sitting for a friend when officers 4 from the San Joaquin County Sheriff’s Department executed a search warrant at the home. ECF 5 No. 1 at 3. Plaintiff claimed that despite not resisting or acting hostile, he was shot by a taser, 6 kicked in the hip, and attacked by the sheriff’s dogs. Id. The order dismissing that complaint 7 noted that it was unclear from the complaint what causes of action plaintiff was asserting. ECF 8 No. 6 at 3. The order pointed out that to the extent plaintiff intended to assert a claim under 42 9 U.S.C. § 1983 against the San Joaquin County Sheriff’s Department, the only named defendant, 10 the claim failed because plaintiff did not allege an injury as a result of any policy or custom of 11 San Joaquin County. Id. at 4. Accordingly, the complaint was dismissed with leave to amend. 12 Plaintiff’s amended complaint again names the San Joaquina County Sheriff’s Department 13 as the only identifiable defendant.2 The only federal claims alleged against this defendant are all 14 brought pursuant to 42 U.S.C. § 1983, but plaintiff still has not alleged facts showing a 15 deprivation of federally protected rights that occurred as the result of a policy or established 16 custom or practice of the Sherriff’s Department. As previously explained to plaintiff, local 17 government entities may not be held vicariously liable under section 1983 for the unconstitutional 18 acts of its employees under a theory of respondeat superior. See Board of Cty. Comm’rs. v. 19 Brown, 520 U.S. 397, 403 (1997). A municipal entity or its departments is liable under section 20 1983 only if plaintiff shows that his constitutional injury was caused by employees acting 21 pursuant to the municipality’s policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 22 429 U.S. 274, 280 (1977); Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 23 (1978); Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). Municipal 24 liability in a § 1983 case may be premised upon: (1) an official policy; (2) a “longstanding 25 practice or custom which constitutes the standard operating procedure of the local government 26 27 28 2 The amended complaint purports to assert claims against San Joaquin County Sheriff’s Department and 10 Doe defendants for unlawful detention and arrest, excessive force, and failure to intervene under 42 U.S.C. § 1983, as well as various state law claims. 3 1 entity;” (3) the act of an “official whose acts fairly represent official policy such that the 2 challenged action constituted official policy;” or (4) where “an official with final policy-making 3 authority delegated that authority to, or ratified the decision of, a subordinate.” Price v. Sery, 513 4 F.3d 962, 966 (9th Cir. 2008). “To sufficiently plead a Monell claim . . ., allegations in a 5 complaint ‘may not simply recite the elements of a cause of action, but must contain sufficient 6 allegations of underlying facts to give fair notice and to enable the opposing party to defend itself 7 effectively.’” Johnson v. Shasta County, 83 F. Supp. 3d 918, 930 (E.D. Cal. 2015) (quoting AE 8 ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012)). 9 The amended complaint again alleges that that plaintiff was at friend’s house when Sheriff 10 Deputies executed a warrant. ECF No. 7 at 3. The deputies allegedly kicked down the front door 11 and shot plaintiff with a taser, handcuffed him, and kicked him. Id. Plaintiff also alleges that he 12 was attacked by a police dog, and that deputies broke his car window and removed his personal 13 items. Id. These allegations do not support a conclusion that the acts alleged were pursuant to an 14 established policy or practice of the Sherriff’s Department. The complaint includes a vague and 15 conclusory assertion that the Sheriff’s Department “had final policy making authority” and that it 16 approved of the deputies “conduct in detaining and arresting plaintiff with excessive force in 17 violation of his rights under the Fourth Amendment to the Consecution of the United States,” 18 ECF No. 7 at 6-7, but contains no facts demonstrating such approval. Conclusory allegation 19 devoid of any supporting factual allegations demonstrating that the Sheriff’s department ratified 20 or approved the deputies’ conduct cannot satisfy the applicable standard. “Threadbare recitals of 21 the elements of a cause of action, supported by mere conclusory statements do not suffice.” 22 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Accordingly, plaintiff fails to allege a federal claim 23 against this defendant. 24 Plaintiff also purports to assert state law claims against the Sheriff’s Department for 25 violations of California’s Ralph Act, Cal. Civ. Code § 51.7, and Bane Act, Cal. Civ. Code § 52.1. 26 But plaintiff has yet to assert a properly pleaded federal cause of action which could support 27 supplemental jurisdiction over those state law claims. 28 ///// 4 1 The amended complaint also indicates an attempt to assert diversity jurisdiction over the 2 state law claims, but the complaint fails to establish complete citizenship that could support such 3 jurisdiction. To establish diversity jurisdiction plaintiff must allege diverse citizenship of all 4 parties. Bautista v. Pan American World Airlines, Inc., 828 F.2d 546, 552. The amended 5 complaint indicates that plaintiff and the San Joaquin Sheriff’s Department are both citizens of 6 California. ECF No. 7 at 2; see Moor v. Alameda County, 411 U.S. 693, 411 U.S. 693, 717-718 7 (political subdivisions of a state, such as a county, “is a citizen of the State for diversity 8 purposes.”). Thus, the court lacks diversity jurisdiction over plaintiff’s state law claims. 9 Given the jurisdictional deficiency, as well as plaintiff’s failure to remedy the deficiency 10 in his amended complaint, the court finds that further amendment as to his claim against the San 11 Joaquina County Sheriff’s Department would be futile. Accordingly, plaintiff’s complaint should 12 be dismissed as to this defendant without leave to amend. Noll v. Carlson, 809 F.2d 1446, 1448 13 (9th Cir. 1987) (While the court ordinarily would permit a pro se plaintiff leave to amend, leave 14 to amend should not be granted where it appears amendment would be futile). 15 Finally, plaintiff has named in the complaint several Doe defendants. The use of Doe 16 defendants in federal court is problematic. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 17 1980). First, unknown persons cannot be served with process until they are identified by their 18 real names. Secondly, where jurisdiction depends upon diversity, it cannot be established until 19 the defendants are actually identified. Finally, the Federal Rules of Civil Procedure, not state 20 procedural rules and pleading practice for fictitious defendants, govern pleadings in federal court. 21 See Brass v. County of Los Angeles, 328 F.3d 1192, 1197-98 (9th Cir. 2003). Although plaintiff 22 has yet to allege facts sufficient to state a cognizable claim against an identified party, the 23 dismissal of the complaint as to the unknown persons should be without prejudice. See Gardner 24 v. Martino, 563 F.3d 981, 990 (9th Cir. 2009); Silva v. Di Vittorio, 658 F.3d 1090, 1105 (9th Cir. 25 2011) (“Dismissal of a pro se complaint without leave to amend is proper only if it is absolutely 26 clear that the deficiencies of the complaint could not be cured by amendment.” (internal quotation 27 marks omitted)); Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A] district court 28 should grant leave to amend even if no request to amend the pleading was made, unless it 5 1 determines that the pleading could not be cured by the allegation of other facts.”). Thus, the 2 dismissal of the Does should be without prejudice in the event plaintiff can timely name an 3 identifiable person(s) who allegedly deprived him of federally protected rights while acting under 4 color of state law. 5 Accordingly, it is hereby RECOMMENDED that: 6 1. Plaintiff’s claims against the Doe defendants be dismissed without prejudice to re- 7 8 9 filing an action against these defendants should plaintiff learn their true names. 2. Plaintiff’s claims against defendant San Joaquin County Sheriff’s Department be dismissed without leave to amend; and 10 3. The Clerk be directed to close this case. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 16 within the specified time may waive the right to appeal the District Court’s order. Turner v. 17 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 DATED: November 13, 2017. 19 20 21 22 23 24 25 26 27 28 6

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