Yee v. Sacramento County, Jail et al

Filing 31

ORDER signed by District Judge Kimberly J. Mueller on 9/12/17 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 6/19/17 28 are ADOPTED to the extent they conclude the fourth amended complaint states a claim against defendants Kathleen Fritzche, Harold Penny and Corey Johnson and fails to state a claim against City of Sacramento, the County of Sacramento and the Sacramento County Jail. Plaintiff may proceed to serve defendants Kathleen Fritzche, Harold Penny and Corey Johnson, following instructions numbered 1 to 8 in the magistrate Judge's Findings and Recommendations. See ECF No. 28 at 5, 18. Alternatively, Plaintiff may delay serving the individual defendants to attempt one last time to state a cognizable claim against the City, County and Jail. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT YEE,

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Plaintiff,

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No. 2:14-cv-2955 KJM DB PS

v.

ORDER

SACRAMENTO COUNTY JAIL, et al.,

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Defendants.

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Plaintiff is proceeding pro se with the above-entitled action. The matter was referred to a

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United States Magistrate Judge under Local Rule 302(c)(21).

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On June 19, 2017, the magistrate judge filed findings and recommendations, which were

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served on all parties and which contained notice to all parties that any objections to the findings

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and recommendations were to be filed within fourteen days after service of the findings and

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recommendations. ECF No. 28. Plaintiff has filed objections to the findings and

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recommendations. ECF No. 29.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having reviewed the file, the court finds the

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findings and recommendations to be supported by the record and by the proper analysis regarding

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dismissal, but that leave to amend should be granted for the reasons explained below.

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In his objections, plaintiff explains that he intended the fourth amended complaint to

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supplement rather than supplant the third amended complaint, and that the former was intended to

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sue the City whereas the latter was intended to sue the Jail. See Objs., ECF No. 29. In resolving

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the defendants’ motion to dismiss, the magistrate judge was correct to focus on the fourth

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amended complaint, because “it is well-established that an ‘amended complaint supersedes the

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original, the latter being treated thereafter as non-existent.’” Valadez-Lopez v. Chertoff, 656 F.3d

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851, 857 (9th Cir. 2011) (quoting Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997)).

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Moreover, the magistrate judge, in granting plaintiff leave to file the third amended complaint,

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specifically informed plaintiff that the court cannot refer to a prior pleading in order to make an

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amended complaint complete. ECF No. 8 at 4 (“Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading.”). The undersigned

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adopts the magistrate judge’s findings and recommendations regarding dismissal of the municipal

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entities, because the fourth amended complaint fails to point to any policy, practice or custom that

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led to the violation of plaintiff’s constitutional rights. See Monell v. Dep’t of Soc. Servs. of

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N.Y.C., 436 U.S. 658 (1978). Indeed, the only policy plaintiff points to is the Sacramento Police

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Department Policy that he says defendants failed to follow. See generally Fourth Am. Compl.

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(“FAC”), ECF No. 26. Dismissal is appropriate as to the Jail, City and County.

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But in light of plaintiff’s explanation, the third amended complaint is instructive in

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making a fair determination of whether granting leave to amend would be futile. In this case, the

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magistrate judge screened the third amended complaint and found it stated a claim against the

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Jail. ECF No. 14. In concluding the fourth amended complaint cannot state a claim against the

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Jail, the magistrate judge did not appear to consider the additional allegations found in the third

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amended complaint. See ECF No. 28 at 5 n.4. The third amended complaint provides a number

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of allegations missing from the fourth, including that the Jail failed to provide inmates with

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adequate mental health care and that the Jail knew it. See Third Am. Compl. (“TAC”), ECF No.

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11. Although defendants’ motion to dismiss the third amended complaint argued those

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allegations were conclusory, the magistrate judge never had occasion to address the allegations

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not expressly included in the fourth amended complaint. Given the additional detail provided in
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the third amended complaint, the undersigned concludes granting leave to amend would not be

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futile.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed June 19, 2017 (ECF No. 28) are adopted to

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the extent they conclude the fourth amended complaint states a claim against

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defendants Kathleen Fritzche, Harold Penny and Corey Johnson and fails to state a

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claim against City of Sacramento, the County of Sacramento and the Sacramento

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County Jail.

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2. Plaintiff may proceed to serve defendants Kathleen Fritzche, Harold Penny and Corey

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Johnson, following instructions numbered 1 to 8 in the magistrate judge’s findings and

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recommendations. See ECF No. 28 at 5, ¶¶ 1–8. Alternatively, plaintiff may delay

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serving the individual defendants to attempt one last time to state a cognizable claim

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against the City, County and Jail.

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3. If plaintiff elects to attempt to further amend his complaint to state a cognizable claim

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against the City, County and Jail, he has thirty (30) days to do so. He is not obligated

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to further amend his complaint, and may instead proceed now against the individual

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defendants named above. If plaintiff chooses to further amend, a fifth amended

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complaint will also be subject to screening. Plaintiff is reminded that, under Local

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Rule 220, an amended complaint must be complete in itself without reference to any

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prior pleading.

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DATED: September 12, 2017.

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UNITED STATES DISTRICT JUDGE

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