Blackshire v. Sacramento County Sheriff

Filing 21

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 5/21/2019 RECOMMENDING plaintiff's 19 motion to proceed ifp be denied; plaintiff's 20 second amended complaint be dismissed without leave to amend; and this action be dismissed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICK BLACKSHIRE,

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Plaintiff,

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v.

No. 2:16-cv-02538 JAM DB

FINDINGS AND RECOMMENDATIONS

SACRAMENTO COUNTY SHERIFF,

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Defendant.

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Plaintiff is proceeding pro se with a civil rights action under 42 U.S.C. § 1983 alleging

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that he was imprisoned by the Sacramento County Sheriff beyond his release date. Plaintiff is not

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currently incarcerated. (ECF No. 11.) Presently before the court is plaintiff’s motion to proceed

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in forma pauperis (ECF No. 19) and his Second Amended Complaint for screening (ECF No. 20).

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For the reasons set forth below, the court will recommend that the motion to proceed in forma

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pauperis be denied and the complaint be dismissed without leave to amend.
SCREENING

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I.

In Forma Pauperis
The court previously directed plaintiff to file an updated application to proceed in forma

pauperis. (ECF No. 13.) Plaintiff has now submitted an updated application. (ECF No. 19.)
Plaintiff’s in forma pauperis application makes the financial showing required by 28
U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma
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pauperis status does not complete the inquiry required by the statute. “‘A district court may deny

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leave to proceed in forma pauperis at the outset if it appears from the face of the proposed

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complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d

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1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th

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Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th

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Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed

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IFP because it appears from the face of the amended complaint that McGee’s action is frivolous

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or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the

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District Court to examine any application for leave to proceed in forma pauperis to determine

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whether the proposed proceeding has merit and if it appears that the proceeding is without merit,

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the court is bound to deny a motion seeking leave to proceed in forma pauperis.”).

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Moreover, the court must dismiss an in forma pauperis case at any time if the allegations

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of poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails

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to state a claim on which relief may be granted, or seeks monetary relief against an immune

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defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an

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arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.

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Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a

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complaint as frivolous where it is based on an indisputably meritless legal theory or where the

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factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

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II.

Legal Standards – Screening
To state a claim on which relief may be granted, the plaintiff must allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as

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true the material allegations in the complaint and construes the allegations in the light most

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favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.

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Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245

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(9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true
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conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western

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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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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. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at

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389. 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. Dept. 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).

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III.

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Allegations in the Complaint
Plaintiff has alleged that he should have been released from jail on May 11, 2015. (ECF

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No. 20 at 4.) However, he was improperly held until May 18, 2015. (Id.) Plaintiff requests

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$23,061,830 be paid to him as retribution for being held past his release date. (Id.)

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VI.

Failure to State a Claim
The Civil Rights Act (42 U.S.C. § 1983) requires that there be an actual connection or link

between the actions of defendants and the deprivation alleged to have been suffered by plaintiff.
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See Monell v. Dept. of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a

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constitutional right, within the meaning of section 1983, if he does an affirmative act, participates

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in another’s affirmative acts or omits to perform an act which he is legally required to do that

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causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th

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Cir. 1978). To state a claim for relief under § 1983, plaintiff must link each named defendant

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with some affirmative act or omission that demonstrates a violation of plaintiff’s federal rights.

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A plaintiff must clearly identify which defendants he feels are responsible for each

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violation of his constitutional rights and the factual basis. The complaint must put each defendant

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on notice of plaintiff’s claims against him or her. See Austin v. Terhune, 367 F.3d 1167, 1171

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(9th Cir. 2004). Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S.

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519, 520 (1972), conclusory and vague allegations will not support a cause of action. Ivey v.

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Board of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Even a liberal

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interpretation of a civil rights complaint may not support essential elements of the claim that were

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not initially pled. Id.

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By order dated November 27, 2018, the court screened and dismissed the original

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complaint for failure to state a claim. (ECF No. 13.) In the November 27, 2018 order, the court

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advised plaintiff of the standards for stating a claim under the Eighth Amendment. (ECF No. 13

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at 4.) Plaintiff was also advised that in any amended complaint he must clearly identify each

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defendant and the action that defendant took that violated his constitutional rights. (Id. at 6.)

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Plaintiff was then granted the opportunity to amend the complaint.

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Plaintiff’s second amended complaint does not allege sufficient facts to state a claim for

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violation of his rights under the Eighth Amendment. While plaintiff has clearly alleged that he

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was unlawfully held beyond his release date and detailed the harm he suffered as result, his

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allegations are insufficient to state a cognizable claim. In the amended complaint, plaintiff has

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not identified a defendant or alleged facts showing that any prison official was aware that he was

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being held past his release date or that an official aware of the problem failed to take action. See

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Montanez v. Thompson, 603 F.3d 243, 252 (3d Cir. 2010). Accordingly, the court finds that the

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amended complaint does not contain sufficient facts to state a cognizable claim.

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V.

No Leave to Amend
The court will recommend that the second amended complaint be dismissed without leave

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to amend because plaintiff was previously notified of the deficiencies and has failed to correct

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them. A plaintiff’s “repeated failure to cure deficiencies” constitutes “a strong indication that the

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[plaintiff] has no additional facts to plead” and “that any attempt to amend would be futile[.]”

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See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 10088 (9th Cir. 2009) (internal

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quotation marks omitted) (upholding dismissal of complaint with prejudice when there were

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“three iterations of [the] allegations—none of which, according to [the district] court, was

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sufficient to survive a motion to dismiss”); see also Simon v. Value Behavioral Health, Inc., 208

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F.3d 1073, 1084 (9th Cir. 2000) (affirming dismissal without leave to amend where plaintiff

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failed to correct deficiencies in complaint, where court had afforded plaintiff opportunities to do

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so, and had discussed with plaintiff the substantive problems with his claims), amended by 234

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F.3d 428, overruled on other grounds by Odom v. Microsoft Corp., 486 F.3d 541, 551 (9th Cir.

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2007); Plumeau v. Sch. Dist. 40 Cnty. of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) (denial of

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leave to amend appropriate where further amendment would be futile).

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Where a “plaintiff has previously been granted leave to amend and has subsequently failed

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to add the requisite particularity to its claims, the district court’s discretion to deny leave to

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amend is particularly broad.” Zucco, 552 F.3d at 1007 (quotations and citations omitted). The

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court finds that granting further leave to amend would be futile because plaintiff was previously

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notified of the deficiencies and failed to fix them in the amended complaint.

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CONCLUSION

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IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s March 22, 2019 motion to proceed in forma pauperis (ECF No. 19) be

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denied;
2. Plaintiff’s second amended complaint (ECF No. 20) be dismissed without leave to
amend; and
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3. This action be dismissed.

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These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: May 21, 2019

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DLB:12
DLB:1/Orders/Prisoner.Civil.Rights/blac2538.f&r.dism

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