Bell v. Williams et al

Filing 13

ORDER REOPENING ACTION AND OF DISMISSAL WITH FURTHER LEAVE TO AMEND granting 8 Motion for Extension of Time to Amend ; granting 10 Motion for Extension of Time to Amend. (Illston, Susan) (Filed on 6/4/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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VINCENT KEITH BELL,
Plaintiff,

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v.

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WILLIAMS, et al.,

United States District Court
Northern District of California

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Case No. 18-cv-01245-SI

Defendants.

ORDER REOPENING ACTION AND
OF DISMISSAL WITH FURTHER
LEAVE TO AMEND
Re: Dkt. Nos. 7, 8, 10, 12

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Vincent Keith Bell, a pretrial detainee at the San Francisco County Jail, filed this pro se civil

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rights action seeking relief under 42 U.S.C. § 1983. The court dismissed his complaint with leave

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to amend, and thereafter dismissed the action for failure to state a claim after Bell failed to file an

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amended complaint by the deadline. Shortly thereafter, Bell moved to reopen the action. He later

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filed motions to extend the deadline to file an amended complaint and three amended complaints.

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Bell’s motions and most recent amended complaint are now before the Court for review.

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BACKGROUND

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In his original complaint, Bell alleged the following event that occurred at the San Francisco

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County Jail: On May 1, 2017, he was “given 30 days lock-up” without being present at a hearing

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on a request for discipline. Docket No. 1 at 3. As a result of the incident report, he was in

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disciplinary isolation for a month. “Capt. M. Fisher demands Bell be punished by sgt. Williams.”

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Id. On January 14, 2018, officer Leung called Bell “beautiful” and asked to see his penis. Id. When

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Bell filed a grievance, captain Fisher called Bell a liar and did not contact internal affairs to

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investigate the grievance. Id. On January 18, 2018, Bell was put in a safety cell. Id. Bell, who has

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only one leg, had to hop over fifty feet to the safety cell, and was carried when he could hop no

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further. Id. Bell was “strip[p]ed of everything he had” when he was placed in the safety cell. Id.
The Court dismissed the complaint with leave to amend and discussed several deficiencies

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in the complaint. First, Bell failed to link any defendant to the disciplinary isolation on May 1,

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2017. Docket No. 3 at 3. Second, Bell failed to state a claim based on officer Leung’s alleged

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comments because verbal harassment alone was not actionable under 42 U.S.C. § 1983. Id. at 3.

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Third, Bell failed to state a claim against captain Fisher because there was no federal constitutional

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right to a prison or jail administrative appeal or grievance system for California inmates. Id. at 4.

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Fourth, Bell failed to state a claim based on his placement in a safety cell because he did not describe

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the details of the safety cell to show that the placement in the safety cell amounted to punishment,

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did not identify any procedural protections that were not provided to him, and did not link any

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United States District Court
Northern District of California

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individual defendant to the claim regarding the January 18, 2018 incident. Id. Lastly, he failed to

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state a claim against the municipal defendant. Id.

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In his amended complaint, Bell alleges the following about the events that occurred at the

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San Francisco County Jail: On January 18, 2018, Bell, a “physically disabled inmate” with an

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above-the-knee amputated leg, was “admitted and transported to the safety cell.” Docket 12 at 2.

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He was “unable to walk,” denied the assistance of his wheelchair, and forced to “hop on his one leg

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while rear handcuffed in a downward position.” Id. Defendants intentionally denied Bell his

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wheelchair when transporting him to the safety cell. Id.

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DISCUSSION

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A. Reopening The Action

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District courts must afford pro se prisoner litigants an opportunity to amend to correct any

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deficiency in their complaints. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en

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banc). An unchallenged explanation for why a pro se prisoner was unable to comply with the district

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court’s deadline for amendment of his complaint may serve as an excuse and require the court to

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grant the prisoner an extension of time rather than dismiss the complaint. See Bennett v. King, 293

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F.3d 1096, 1098 (9th Cir. 2002).

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This action was dismissed on September 12, 2018, because Bell had not filed his amended
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complaint by July 30, 2018, the deadline set in an earlier order. See Docket Nos. 3, 5. It turns out

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that Bell did not receive the order of dismissal with leave to amend. See Docket No. 7. Bell has

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requested that the action be reopened and that his amended complaint be reviewed by the Court.

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The request to reopen the action is GRANTED. Docket No. 7. The order of dismissal and judgment

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are VACATED. The Court also GRANTS Bell’s motions for an extension of the deadline to file an

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amended complaint. Docket Nos. 8, 10. The amended complaint filed on April 30, 2019 is deemed

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to have been timely filed.

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B. Review of Amended Complaint
A federal court must engage in a preliminary screening of any case in which a prisoner seeks

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United States District Court
Northern District of California

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redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). In its review the court must identify any cognizable claim, and dismiss any claim which

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is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary

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relief from a defendant who is immune from such relief. See id. at §1915A(b). Pro se pleadings

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

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1990).

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An amended complaint supersedes the original, the latter being treated thereafter as non-

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existent. Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Consequently,

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claims not included in an amended complaint are no longer claims and defendants not named in an

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amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.

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1992). Thus, Bell’s most recent amended complaint (Docket No. 12) supersedes his complaint and

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his earlier amended complaints.

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1. The 42 U.S.C. § 1983 Claim

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a

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

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was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48

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(1988). When a pretrial detainee challenges conditions of his confinement, the proper inquiry is
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whether the conditions amount to punishment in violation of the Due Process Clause of the Fourteen

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Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979).
Bell’s amended complaint fails to state a claim against defendants. The amended complaint

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refers to several members of the jail staff collectively as “the defendants,” but fails to link any

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defendant to the claim by explaining what each defendant did or failed to do. In his second amended

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complaint, Bell must allege facts showing the basis for liability for each individual defendant. He

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should identify each involved defendant by name and clearly describe what each of them did or

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failed to do that violated his constitutional right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.

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1988) (liability maybe imposed on individual defendant under § 1983 only if plaintiff can show that

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defendant proximately caused deprivation of federally protected right). A supervisor may be liable

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United States District Court
Northern District of California

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under § 1983 upon a showing of (1) personal involvement in the constitutional deprivation or (2) a

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sufficient causal connection between the supervisor’s wrongful conduct and the constitutional

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violation. See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).

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If Bell also intends to make a claim about the conditions of the safety cell to which he was

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taken, his amended complaint fails to state a claim because he does not describe the conditions of

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the safety cell or state how long he remained in it with enough detail to show that the placement in

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the safety cell amounted to punishment. Bell, 441 U.S. at 535 n.16. He also does not identify the

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procedural protections (if any) that were not provided to him before he was placed in the safety cell.

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2. The ADA Claim

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Title II of the Americans With Disabilities Act, 42 U.S.C. § 12131 et seq. (“ADA”), and

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§ 504 of the Rehabilitation Act, as amended and codified in 29 U.S.C. § 701 et seq. (“RA”), prohibit

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discrimination on the basis of a disability in the programs, services or activities of a public entity.

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Federal regulations require a public entity to “make reasonable modifications in policies, practices,

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or procedures when the modifications are necessary to avoid discrimination on the basis of

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disability, unless the public entity can demonstrate that making the modifications would

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fundamentally alter the nature of the service, program or activity.” 28 C.F.R. § 35.130(b)(7).

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The elements of a cause of action under Title II of the ADA are: (1) the plaintiff is an
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individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive the

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benefit of some public entity’s services, programs, or activities; (3) the plaintiff was either excluded

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from participation in or denied the benefits of the public entity’s services, programs or activities, or

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was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits,

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or discrimination was by reason of the plaintiff’s disability. Thompson v. Davis, 295 F.3d 890, 895

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(9th Cir. 2002). A cause of action under § 504 of the RA essentially parallels an ADA cause of

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action. See Olmstead v. Zimring, 527 U.S. 581, 590 (1999); Duvall v. Cty of Kitsap, 260 F.3d 1124,

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1135 (9th Cir. 2001).
The proper defendant for a claim under Title II of the ADA and § 504 of the RA is the public

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entity responsible for the alleged discrimination. See Everson v. Leis, 556 F.3d 484, 501 n.7 (6th

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United States District Court
Northern District of California

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Cir. 2009) (collecting cases); but cf. Eason v. Clark Cty Sch. Dist., 393 F.3d 1137, 1145 (9th Cir.

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2002) (declining to decide the issue). Title II of the ADA does not provide for suit against a public

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official acting in his individual capacity. Everson, 556 F.3d at 501. A plaintiff also cannot assert a

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claim under § 1983 against defendants in their individual capacities to vindicate rights created by

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the ADA and the RA. See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002).

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The amended complaint indicates that Bell wants to pursue a claim under the ADA and RA,

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but the pleading is deficient. Bell has not identified a proper defendant for a claim under the ADA

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and RA. Moreover, the allegations of the amended complaint seem to undermine an ADA/RA

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claim: Bell alleges that the individual defendants were acting contrary to, rather than pursuant to,

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jail policy when they failed to let him use a nearby wheelchair. Docket No. 12 at 6-7. Leave to

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amend will be granted so that Bell may attempt to allege a claim under the ADA and RA. Here, the

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proper defendant for a claim under the ADA and RA would be the San Francisco Sheriff’s

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Department or the City and County of San Francisco as the entity that allegedly denied Bell his

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rights under the ADA and RA. In his second amended complaint, Bell must name a proper

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defendant and allege facts showing a violation of his rights under the ADA and RA.

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CONCLUSION

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For the foregoing reasons, the motion to reopen the action is GRANTED. Docket No. 7.

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The order of dismissal and judgment are VACATED. The motions for an extension of the deadline

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to file an amended complaint are GRANTED. Docket Nos. 8, 10. The amended complaint (Docket

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No. 12) is deemed to have been timely filed.
The amended complaint is dismissed with leave to amend. Plaintiff must file a second

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amended complaint that complies with the directions in this order no later than July 12, 2019, and

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must include the caption and civil case number used in this order and the words SECOND

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AMENDED COMPLAINT on the first page. Plaintiff is cautioned that his second amended

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complaint must be a complete statement of his claims. See Lacey v. Maricopa Cty, 693 F.3d 896,

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United States District Court
Northern District of California

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928 (9th Cir. 2012) (en banc) (“For claims dismissed with prejudice and without leave to amend,

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we will not require that they be repled in a subsequent amended complaint to preserve them for

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appeal. But for any claims voluntarily dismissed, we will consider those claims to be waived if not

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repled.”). Failure to file the second amended complaint by the deadline will result in the dismissal

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of this action.

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The clerk will send to Bell a copy of the orders at Docket Nos. 3 and 4.

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IT IS SO ORDERED.
Dated: June 4, 2019
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SUSAN ILLSTON
United States District Judge

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