Wilkes v. Hunter et al

Filing 10

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge James Donato on 9/8/2016. (ndrS, COURT STAFF) (Filed on 9/8/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID GASTON WILKES,
Plaintiff,

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
L. T. HUNTER, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 16-cv-02401-JD

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Plaintiff, a detainee, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He
has been granted leave to proceed in forma pauperis.
DISCUSSION

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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 U.S.C.

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§ 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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

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claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by
the Constitution or laws of the United States was violated, and (2) the alleged deprivation was
committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

United States District Court
Northern District of California

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LEGAL CLAIMS

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Plaintiff presents several claims against the San Francisco Department of Probation and

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many members of the San Francisco Sheriff’s Department. “The Equal Protection Clause of the

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Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction

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the equal protection of the laws,’ which is essentially a direction that all persons similarly situated

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should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)

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(quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)); Thornton v. City of St. Helens, 425 F.3d 1158,

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1168 (9th Cir. 2005) (evidence of different treatment of unlike groups does not support an equal

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protection claim).

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Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where official

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policy or custom causes a constitutional tort, see Monell v. Dep’t of Social Servs., 436 U.S. 658,

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690 (1978); however, a city or county may not be held vicariously liable for the unconstitutional

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acts of its employees under the theory of respondeat superior, see Board of Cty. Commr’s. of

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Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691. To impose municipal

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liability under § 1983 for a violation of constitutional rights resulting from governmental inaction

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or omission, a plaintiff must show: (1) that the plaintiff possessed a constitutional right of which

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he or she was deprived; (2) that the municipality had a policy; (3) that this policy amounts to

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deliberate indifference to the plaintiff’s constitutional rights; and (4) that the policy is the moving
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force behind the constitutional violation. See Plumeau v. School Dist. #40 County of Yamhill, 130

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F.3d 432, 438 (9th Cir. 1997).

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To properly plead a claim under Monell, it is insufficient to allege simply that a policy,

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custom, or practice exists that caused the constitutional violations. AE v. County of Tulare, 666

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F.3d 631, 636-37 (9th Cir. 2012). Pursuant to the more stringent pleading requirements set forth

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in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1952 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 553-56 (2007), a plaintiff suing a municipal entity must allege sufficient facts regarding the

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specific nature of the alleged policy, custom or practice to allow the defendant to effectively

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defend itself, and these facts must plausibly suggest that plaintiff is entitled to relief. AE, 666 F.3d
at 636-37 (citing Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). Proof of random acts or

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United States District Court
Northern District of California

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isolated incidents of unconstitutional action by a non-policymaking employee are insufficient to

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establish the existence of a municipal policy or custom. See Rivera v. County of Los Angeles, 745

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F.3d 384, 398 (9th Cir. 2014).

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“Within the prison context, a viable claim of First Amendment retaliation entails five basic

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elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

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because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted).

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Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under §

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1983 for retaliation must allege that he was retaliated against for exercising his constitutional

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rights and that the retaliatory action did not advance legitimate penological goals, such as

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preserving institutional order and discipline); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994)

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(per curiam) (same).

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In order to establish a free exercise violation, a prisoner must show a defendant burdened

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the practice of his religion without any justification reasonably related to legitimate penological

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interests. See Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008). A prisoner is not required

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to objectively show that a central tenet of his faith is burdened by a prison regulation to raise a

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viable claim under the Free Exercise Clause. Id. at 884-85.
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Section 3 of the Religious Land Use and Institutionalized Persons Act (RLUIPA),

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provides: “No government shall impose a substantial burden on the religious exercise of a person

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residing in or confined to an institution, as defined in section 1997 [which includes state prisons,

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state psychiatric hospitals, and local jails], even if the burden results from a rule of general

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applicability, unless the government demonstrates that imposition of the burden on that person (1)

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is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of

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furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). The statute applies

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“in any case” in which “the substantial burden is imposed in a program or activity that receives

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Federal financial assistance.” 42 U.S.C. § 2000cc-1(b)(1).

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Plaintiff states that he was sentenced to probation but was denied access to housing, jobs

United States District Court
Northern District of California

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and other services by the San Francisco Department of Probation. He states that he was denied

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these things due to his race and because he suffers from mental illness. He also argues that while

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he was being held in San Francisco County Jail, deputies retaliated against him due to his prior

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lawsuit in 1999. He also states that deputies refused to transport him to an outside social services

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program. He also contends that jail deputies violated his religious rights by not allowing him to

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bring a Christian cross into the jail. Plaintiff seeks injunctive relief and money damages against

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the Department of Probation, various probation officers, the County Jail and several deputies.

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Federal Rule Civil Procedure 18(a) provides: “A party asserting a claim to relief as an

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original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or

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as alternate claims, as many claims, legal, equitable, or maritime as the party has against an

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opposing party.” “Thus multiple claims against a single party are fine, but Claim A against

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Defendant 1 should not be joined with unrelated Claim B against Defendant 2.” George v. Smith,

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507 F.3d 605, 607 (7th Cir. 2007). “Unrelated claims against different defendants belong in

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different suits[.]” Id.

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It is true that Fed. R. Civ. P. 20(a) provides that “[p]ersons . . . may be joined in one action

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as defendants if: (A) any right is asserted against them jointly, severally, or in the alternative with

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respect to or arising out of the same transaction, occurrence, or series of transactions or

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occurrences; and (B) any question of law or fact common to all defendants will arise in the
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action.” However, “[a] buckshot complaint that would be rejected if filed by a free person – say, a

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suit complaining that A defrauded the plaintiff, B defamed him, C punched him, D failed to pay a

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debt, and E infringed his copyright, all in different transactions – should be rejected if filed by a

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prisoner.” Id. at 607.

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In this action plaintiff has presented unrelated claims against many different defendants.

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The complaint will be dismissed with leave to amend. Plaintiff should focus the amended

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complaint on related incidents and he must identify the specific actions of the defendants and

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describe how they violated his constitutional rights with respect to the legal standards set forth

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above. General allegations without sufficient support are insufficient.
CONCLUSION

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United States District Court
Northern District of California

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1.

The complaint is DISMISSED with leave to amend. The amended complaint must

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be filed within twenty-eight (28) days of the date this order is filed and must include the caption

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and civil case number used in this order and the words AMENDED COMPLAINT on the first

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page. Because an amended complaint completely replaces the original complaint, plaintiff must

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include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to

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amend within the designated time will result in the dismissal of this case.

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2.

It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

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

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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: September 8, 2016

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID GASTON WILKES,

Case No. 16-cv-02401-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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L. T. HUNTER, et al.,
Defendants.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on September 8, 2016, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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David Gaston Wilkes
9670 Empire Road
Oakland, CA 94603

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Dated: September 8, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Nikki D. Riley, Deputy Clerk to the
Honorable JAMES DONATO

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