JaiKishan v. County of Sacramento

Filing 5

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/13/17 GRANTING 2 Motion to Proceed IFP; the Complaint is DISMISSED with 30 days LEAVE to AMEND. (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 JOHN JAIKISHAN, 12 Plaintiff, 13 14 15 No. 2:16-cv-1803-KJM-EFB PS v. ORDER COUNTY OF SACRAMENTO, DOES 1 through 10, Defendants. 16 17 18 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His 19 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 20 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 21 Determining that plaintiff may proceed in forma pauperis does not complete the required 22 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 23 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 24 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 25 below, plaintiff’s complaint fails to state a claim and must be dismissed. 26 ///// 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 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 2 520-21 (1972), a complaint, or portion thereof, must be dismissed for failure to state a claim if it 3 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 5 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 6 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 7 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 8 relief above the speculative level on the assumption that all of the complaint’s allegations are 9 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 10 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 11 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 12 In reviewing a complaint under this standard, the court must accept as true the allegations 13 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), 14 construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the 15 plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy 16 the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) 17 requires a complaint to include “a short and plain statement of the claim showing that the pleader 18 is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds 19 upon which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)). 20 Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only 21 those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 22 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, 23 confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction 24 requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a 25 “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be 26 authorized by a federal statute that both regulates a specific subject matter and confers federal 27 jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity 28 jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the 2 1 matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World 2 Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction 3 of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of 4 subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys 5 Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). 6 Plaintiff brings this action against the County of Sacramento. ECF No. 1. He alleges that 7 he was an inmate at the Sacramento County Jail from April 7, 2016, through May 5, 2016. ECF 8 No. 1 at 2. He asserts that during this time he was housed in solitary confinement without any 9 medication or access to legal help, and he was not permitted to make phone calls or have visitors. 10 Id. He further claims that on many occasions he fell and injured himself, but he was denied 11 medical care. Id. He also alleges that the jail refused to provide dental care, education classes, 12 religious services, and inmate worker programs. Id. at 2-3. Plaintiff claims that the failure to 13 provide such services constituted violations of his constitutional rights under the Fourth, Fifth, 14 and Fourteenth Amendments to the United States Constitution and the Americans with 15 Disabilities Act. Id. at 1-3. 16 As an initial matter, plaintiff appears to assert claims against “individual defendants” yet 17 fails to identify them. See id. at 2. Plaintiff’s failure to identify by name the individual 18 defendants is problematic and requires dismissal of these defendants. Unknown persons cannot 19 be served with process until they are identified by their real names, and the court will not 20 investigate the names and identities of unnamed defendants. 21 As for the County of Sacramento, the court finds that the allegations are too vague and 22 conclusory to state a cognizable claim for relief against that defendant. Although the Federal 23 Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of 24 the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 25 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendant 26 engaged in that support plaintiff’s claim. Id. Plaintiff’s complaint consists of little more than 27 general allegations that he was denied various services. Because such allegations are insufficient 28 to state a claim for relief, the complaint must be dismissed. 3 1 To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal 2 constitutional or statutory right; and (2) that the violation was committed by a person acting under 3 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 4 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the 5 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal 6 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation. 7 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 8 (9th Cir. 1978). 9 A municipal entity or its departments (such as a county, a county jail, or a county 10 employee acting in an official capacity) is liable under section 1983 only if plaintiff shows that 11 his constitutional injury was caused by employees acting pursuant to the municipality’s policy or 12 custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977); Monell v. New 13 York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Villegas v. Gilroy Garlic Festival 14 Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). In addition, such local government entities may not be 15 held vicariously liable under section 1983 for the unconstitutional acts of its employees under a 16 theory of respondeat superior. See Board of Cty. Comm’rs. v. Brown, 520 U.S. 397, 403 (1997). 17 That is, a plaintiff may not sue any defendant on the theory that the defendant is automatically 18 liable for the alleged misconduct of subordinate officers. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 19 (2009). 20 To succeed on an Eighth Amendment claim predicated on the denial of medical care, a 21 plaintiff must establish that he had a serious medical need and that the defendant’s response to 22 that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see 23 also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to 24 treat the condition could result in further significant injury or the unnecessary and wanton 25 infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial, 26 delay or intentional interference with medical treatment or by the way in which medical care is 27 provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 28 ///// 4 1 To act with deliberate indifference, a jail official must both be aware of facts from which 2 the inference could be drawn that a substantial risk of serious harm exists, and he must also draw 3 the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if he 4 knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing to 5 take reasonable measures to abate it.” Id. at 847. A physician need not fail to treat an inmate 6 altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 7 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, 8 even if some treatment is prescribed, may constitute deliberate indifference in a particular case. 9 Id. 10 It is important to differentiate common law negligence claims of malpractice from claims 11 predicated on violations of the Eight Amendment’s prohibition of cruel and unusual punishment. 12 In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not 13 support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 14 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976)); see also Toguchi v. Chung, 391 15 F.3d 1051, 1057 (9th Cir. 2004). 16 To the extent plaintiff contends that any defendant provided inadequate medical care in 17 violation of the Eighth Amendment, he must allege specific facts demonstrating each defendant’s 18 personal involvement or personal participation. Vague claims against unnamed “individual 19 defendants” are not sufficient. 20 Title II of the Americans with Disabilities Act (“ADA”), prohibits a public entity from 21 discriminating against a qualified individual with a disability on the basis of disability. 42 U.S.C. 22 § 12132. In order to state a claim that a public program or service violated Title II of the ADA, a 23 plaintiff must show: (1) he is a “qualified individual with a disability”; (2) he was either excluded 24 from participation in or denied the benefits of a public entity’s services, programs, or activities, or 25 was otherwise discriminated against by the public entity; and (3) such exclusion, denial of 26 benefits, or discrimination was by reason of his disability. McGary v. City of Portland, 386 F.3d 27 1259, 1265 (9th Cir. 2004); see also Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001) 28 (“If a public entity denies an otherwise ‘qualified individual’ ‘meaningful access’ to its ‘services, 5 1 programs, or activities’ ‘solely by reason of’ his or her disability, that individual may have an 2 ADA claim against the public entity.”). 3 The ADA authorizes suits by private citizens for money damages against public entities, 4 United States v. Georgia, 546 U.S. 151, 153 (2006), and county jails fall within the statutory 5 definition of “public entity.” Lee v. City of L.A., 250 F.3d 668, 691 (9th Cir. 2001). “To recover 6 monetary damages under Title II of the ADA . . . , a plaintiff must prove intentional 7 discrimination on the part of the defendant.” Duvall v. County of Kitsap, 260 F.3d 1124, 1138 8 (9th Cir. 2001). The standard for intentional discrimination is deliberate indifference, which 9 “requires both knowledge that a harm to a federally protected right is substantially likely, and a 10 11 failure to act upon that likelihood.” Id. at 1139. “In suits under Title II of the ADA . . . the proper defendant usually is an organization 12 rather than a natural person . . . . Thus, as a rule, there is no personal liability under Title II.” 13 Roundtree v. Adams, 2005 WL 3284405, at *8 (E. D. Cal. Dec. 1, 2005) (quotations and citations 14 omitted). Indeed, a plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State 15 official in his individual capacity to vindicate rights created by Title II of the ADA. Vinson v. 16 Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). Thus, an ADA plaintiff may seek injunctive relief 17 against an individual defendant only if the defendant is sued in his or her official capacity. 18 Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003). 19 Plaintiff will be granted leave to file an amended complaint, if plaintiff can allege a 20 cognizable legal theory against a proper defendant and sufficient facts in support of that 21 cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 22 (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in 23 their complaints). Should plaintiff choose to file an amended complaint, the amended complaint 24 shall clearly set forth the claims and allegations against each defendant. Further, any amended 25 complaint must cure the deficiencies identified above and also adhere to the following 26 requirements: 27 28 Any amended complaint must identify as a defendant only persons who personally participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 6 1 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 2 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 3 legally required to do that causes the alleged deprivation). It must also contain a caption 4 including the names of all defendants. Fed. R. Civ. P. 10(a). 5 Any amended complaint must be written or typed so that it so that it is complete in itself 6 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 7 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 8 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 9 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 10 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 11 1967)). 12 Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil 13 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 14 See E.D. Cal. Local Rule 110. 15 Accordingly, it is hereby ORDERED that: 16 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 17 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 18 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 19 complaint. The amended complaint must bear the docket number assigned to this case and must 20 be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 21 accordance with this order will result in a recommendation this action be dismissed. 22 DATED: November 13, 2017. 23 24 25 26 27 28 7

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