Simpson v. Alameda County Sheriff's Department

Filing 7

ORDER PARTIAL DISMISSAL AND OF SERVICE. Signed by Magistrate Judge Jacqueline Scott Corley on 2/4/2014. (Attachments: # 1 Certificate of Service)(ahm, COURT STAFF) (Filed on 2/4/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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GARY LEE SIMPSON,

Case No.: C 14-0156 JSC (PR)
ORDER PARTIAL DISMISSAL AND
OF SERVICE

Plaintiff,

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v.

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ALAMEDA COUNTY SHERRIFF’S
DEPARTMENT, et al.,

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Defendants.

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INTRODUCTION

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Plaintiff, an inmate at the Alameda County Jail, filed this pro se civil rights complaint

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under 42 U.S.C. ' 1983 against the Alameda County Sherriff’s Department and its
employees. 1 His application to proceed in forma pauperis is granted in a separate order. For
the reasons explained below, the complaint is ordered served upon certain defendants.

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Plaintiff consented to the jurisdiction of a United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). (Dkt. 4.) He subsequently filed a form declining such jurisdiction. (Dkt. 5.)
A party must show “extraordinary circumstances” for withdrawing consent. 28 U.S.C. §
636(c)(4). Plaintiff did not provide any reason for withdrawing his consent, let alone show
extraordinary circumstances.

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STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28

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U.S.C. § 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or

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any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim

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upon which relief may be granted,” or “seeks monetary relief from a defendant who is
immune from such relief.” Id. § 1915A(b). Pro se pleadings must be liberally construed.
Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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

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Northern District of California

United States District Court

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the claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the
statement need only give the defendant fair notice of what the . . . . claim is and the grounds
upon which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted).
Although to state a claim a complaint “does not need detailed factual allegations, . . . a

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plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than

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labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

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do. . . . Factual allegations must be enough to raise a right to relief above the speculative

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level.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted).

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A complaint must proffer “enough facts to state a claim for relief that is plausible on its face.”

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Id. at 1974. Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't,

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901 F.2d 696, 699 (9th Cir. 1990).

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To state a claim under 42 U.S.C. ' 1983, a plaintiff must allege two elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2)

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that the alleged violation was committed by a person acting under the color of state law. West

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v. Atkins, 487 U.S. 42, 48 (1988).
//

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LEGAL CLAIMS
Plaintiff alleges that he was “assaulted” by three deputies at the Alameda County Jail.

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He lists one of them as a defendant, Deputy Bombaugh, but does not name the other two.

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When liberally construed, his allegations are sufficient to state a cognizable claim against

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Deputy Bombaugh for the use of excessive force. If Plaintiff learns the names of the other

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two deputies, he may seek leave to file an amended complaint in which they are named as

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defendants.

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Plaintiff also names two other defendants: Greg Ahern, the Alameda County Sherriff,

that he is “responsible for the three deputies that assaulted him,” and he makes no allegations

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Northern District of California

and the Alameda County Sherriff’s Department. As to Sherriff Ahern, Plaintiff simply alleges

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United States District Court

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against the Sherriff’s Department. Under no circumstances is there respondeat superior

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liability under Section 1983; or, in layman's terms, under no circumstances is there liability

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under Section 1983 solely because one is responsible for the actions or omissions of another.

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Consequently, Plaintiff cannot hold

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Sherriff Ahern liable based solely on the theory that he is responsible for the deputies working

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at the jail. Similarly, the Alameda County Sherriff’s Department, a municipal entity, also

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cannot be held liable on a respondeat superior theory, or on the theory that it is responsible for

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the actions of its employees. See Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978)

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(holding municipalities cannot be held liable under Section 1983 based upon respondeat

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superior theory). Accordingly, the claims against defendants Ahern and the Alameda County

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Sherriff’s Department will be dismissed.

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CONCLUSION
1. The claims against Greg Ahern and the Alameda County Sherriff’s Department are
DISMISSED.
2. The Clerk shall issue a summons and Magistrate Judge jurisdiction consent form

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and the United States Marshal shall serve, without prepayment of fees, the summons,

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Magistrate Judge jurisdiction consent form, copies of the complaint with attachments and

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copies of this order on Deputy Bombaugh at the Alameda County Sherriff’s Department.

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3. Defendant shall complete and file the Magistrate Judge jurisdiction consent form

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within 91 days of the date this order is filed. If Defendant consents to a Magistrate Judge’s

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jurisdiction, then:

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a. Defendant shall file an answer in accordance with the Federal Rules of Civil
Procedure.
b. No later than 91 days from the date this order is filed, Defendant shall file a motion

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for summary judgment or other dispositive motion. The motion shall be supported by

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adequate factual documentation and shall conform in all respects to Federal Rule of Civil

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Procedure 56, and shall include as exhibits all records and incident reports stemming from the

Northern District of California

events at issue. If Defendant is of the opinion that this case cannot be resolved by summary

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United States District Court

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judgment, he shall so inform the Court prior to the date his summary judgment motion is due.

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All papers filed with the Court shall be promptly served on Plaintiff.

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c. At the time the dispositive motion is served, Defendant shall also serve, on a

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separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952,

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953-954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir.

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2003). See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices

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must be given at the time motion for summary judgment or motion to dismiss for

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nonexhaustion is filed, not earlier); Rand at 960 (separate paper requirement).

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d. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the Court

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and served upon Defendants no later than 28 days from the date the motion is filed. Plaintiff

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must read the attached page headed “NOTICE -- WARNING,” which is provided to him

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pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele

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v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

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If Defendants file an unenumerated Rule 12(b) motion to dismiss claiming that Plaintiff

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failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a),

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Plaintiff should take note of the attached page headed “NOTICE -- WARNING

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(EXHAUSTION),” which is provided to him as required by Wyatt v. Terhune, 315 F.3d 1108,

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1120 n. 4 (9th Cir. 2003).

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e. Defendant shall file a reply brief no later than 14 days after the opposition is filed.

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f. The motion shall be deemed submitted as of the date the reply brief is due. No

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hearing will be held on the motion unless the court so orders at a later date.
6. All communications by Plaintiff with the Court must be served on Defendants, or

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Defendants’ counsel once counsel has been designated, by mailing a true copy of the

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document to Defendants or Defendants’ counsel.

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7. Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

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No further Court order under Federal Rule of Civil Procedure 30(a)(2) is required before the

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parties may conduct discovery.

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8. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address by filing a separate paper with the clerk headed “Notice of

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Change of Address.” He also must comply with the Court's orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: February 4, 2014
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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Northern District of California

United States District Court

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NOTICE -- WARNING (SUMMARY JUDGMENT)
If Defendants move for summary judgment, they are seeking to have your case
dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil
Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a motion for summary
judgment. Generally, summary judgment must be granted when there is no genuine issue of
material fact--that is, if there is no real dispute about any fact that would affect the result of
your case, the party who asked for summary judgment is entitled to judgment as a matter of
law, which will end your case. When a party you are suing makes a motion for summary
judgment that is properly supported by declarations (or other sworn testimony), you cannot
simply rely on what your complaint says. Instead, you must set out specific facts in
declarations, depositions, answers to interrogatories, or authenticated documents, as provided
in Rule 56(e), that contradict the facts shown in Defendant's declarations and documents and
show that there is a genuine issue of material fact for trial. If you do not submit your own
evidence in opposition, summary judgment, if appropriate, may be entered against you. If
summary judgment is granted, your case will be dismissed and there will be no trial.

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NOTICE -- WARNING (EXHAUSTION)
If Defendants file an unenumerated motion to dismiss for failure to exhaust, they are
seeking to have your case dismissed. If the motion is granted it will end your case.
You have the right to present any evidence you may have which tends to show that you
did exhaust your administrative remedies. Such evidence may be in the form of declarations
(statements signed under penalty of perjury) or authenticated documents, that is, documents
accompanied by a declaration showing where they came from and why they are authentic, or
other sworn papers, such as answers to interrogatories or depositions.
If Defendant files a motion to dismiss and it is granted, your case will be dismissed and
there will be no trial.

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