Jabbari v. County of San Mateo et al

Filing 8

SCREENING ORDER PURSUANT TO 28 U.S.C. § 1915. Signed by Magistrate Judge Jacqueline Scott Corley on 7/19/2021. (ahm, COURT STAFF) (Filed on 7/19/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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Case 3:21-cv-01784-JSC Document 8 Filed 07/19/21 Page 1 of 6 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 TANNAZ JABBARI, 7 Plaintiff, 8 SCREENING ORDER PURSUANT TO 28 U.S.C. § 1915 v. 9 COUNTY OF SAN MATEO, et al., 10 Re: Dkt. No. 1 Defendants. 11 United States District Court Northern District of California Case No. 21-cv-01784-JSC 12 13 Tannaz Jabbari, without representation by an attorney, brings this civil rights action against 14 County of San Mateo (“County”), San Mateo County Sheriff Carlos Bolanos (“Sheriff Bolanos”) 15 and DOES 1-4. (Dkt. No. 1.) Having granted Ms. Jabbari’s application to proceed in forma 16 pauperis, (see Dkt. No. 4), the Court now screens the complaint pursuant to 28 U.S.C. § 1915. 17 COMPLAINT ALLEGATIONS 18 Ms. Jabbari alleges various constitutional violations during her booking and 23-day 19 incarceration at San Mateo County Jail. On October 20, 2020, during Ms. Jabbari’s booking as a 20 pretrial detainee, “a jail personnel startled [Ms. Jabbari] by taking a thermometer laser gun to [her] 21 head,” even though Ms. Jabbari did not consent to the temperature scan. (Compl. ¶ 10.)1 22 Afterwards, DOES 1-4 “forcefully attacked Plaintiff, pinning her down while twisting her arm to 23 forcefully scan Plaintiff’s temperature.” (Id. ¶ 11.) “Although Plaintiff was not resisting[, DOES 24 1 and 2] proceeded to drag Plaintiff and twist and mangle Plaintiff’s arms and hands while ripping 25 off her clothes.” (Id. ¶ 12.) One of the DOES 1-4 removed Ms. Jabbari’s prescribed glasses, 26 “leaving [her] virtually blind.” (Id.) DOES 1 and 2 “forcefully snapped Plaintiff’s hands 27 28 Record Citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the document. 1 Case 3:21-cv-01784-JSC Document 8 Filed 07/19/21 Page 2 of 6 1 backwards crushing the bones in Plaintiff’s hands” and subsequently “drag[ged] Plaintiff to their 2 desk, and continued to forcefully and violently twist and crush Plaintiff’s hands in order to sign 3 some papers that Plaintiff was not able to see.” (Id.) 4 DOES 1-4 took Ms. Jabbari for a pulse and blood pressure check without her consent. (Id. ¶ 13.) Ms. Jabbari had bruises on her arms, wrists, hands, and other areas of her body, and had 6 swollen hands that were “extremely painful to move or touch.” (Id.) Ms. Jabbari asked the 7 officers for medical care and photos of her injures for her lawyer, which the officers did not 8 perform. (Id.) “The officers locked Plaintiff in a cell with a broken or turned off phone.” (Id.) 9 Ms. Jabbari alleges that the officers knew the phone did not work because a neighboring inmate 10 had a similar complaint and the officers “mocked him for not getting to make a phone call.” (Id.) 11 United States District Court Northern District of California 5 Later that day, Ms. Jabbari was “placed on lockdown in solitary confinement.” (Id. ¶ 14.) The 12 next day, a correctional officer canceled Ms. Jabbari’s arraignment date because Ms. Jabbari did 13 not consent to a temperature check nor COVID-19 test. (Id.) “Plaintiff was informed by the 14 sergeant on duty that solely upon submitting to San Mateo county jail’s Covid-19 test among other 15 medical procedures, the Defendants would stop denying Plaintiff her rights to make a phone call 16 and appear in her scheduled arraignment [] without unnecessary delay.” (Id. ¶ 15.) 17 After Ms. Jabbari requested medical care because she was severely ill and vomiting, a 18 nurse “demanded that Plaintiff put on a face mask in her cell.” (Id. ¶ 16.) Putting on a face mask 19 is against Ms. Jabbari’s religious beliefs and poses a health risk. (Id.) The nurse said that Ms. 20 Jabbari could not go to the clinic because of the face mask requirement and “she was going to lie 21 that Plaintiff refused care.” (Id.) Ms. Jabbari alleges that she did not receive medical treatment 22 until the eighth day. (Id.) 23 Without a hearing, witness, or explanation, on October 22, 2020, Ms. Jabbari received a 24 21-day lockdown disciplinary charge for not wearing a face mask and submitting to a COVID-19 25 test. (Id. ¶ 17.) The officer at San Mateo County Jail cancelled Ms. Jabbari’s second arraignment 26 hearing and told her she could not appear in court over Zoom or telephone unless she took a 27 COVID-19 test. (Id. ¶ 19.) During Ms. Jabbari’s 21-day lockdown, she became ill, was not 28 eating, and became severely dehydrated. (Id. ¶ 20.) After an IV treatment was administered on 2 Case 3:21-cv-01784-JSC Document 8 Filed 07/19/21 Page 3 of 6 1 Ms. Jabbari’s “nearly collapsed veins,” she “suffer[ed] extreme hypothermia and shivering among 2 other consequences.” (Id. ¶ 21.) When Ms. Jabbari asked for a blanket, “the nurse told Plaintiff to 3 ask [] for help when ‘you change your mind’ about putting on a mask.” (Id.) 4 For her third arraignment hearing “on or about October 30, 2020,” Ms. Jabbari’s attorney 5 asked the correctional officer on duty for Ms. Jabbari to participate via telephone. (Id. ¶ 22.) At 6 the hearing, the charges were withdrawn, and Ms. Jabbari was released. 7 LEGAL STANDARD 8 A court must dismiss an in forma pauperis complaint before service of process if it is 9 frivolous, fails to state a claim, or contains a complete defense to the action on its face. 28 U.S.C. § 1915(e)(2). Section 1915(e)(2) parallels the language of Federal Rule of Civil Procedure 11 United States District Court Northern District of California 10 12(b)(6) regarding dismissals for failure to state a claim. See 28 U.S.C. § 1915(e)(2); see also 12 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000). The complaint therefore must allege 13 facts that plausibly establish each defendant’s liability. See Bell Atl. Corp. v. Twombly, 550 U.S. 14 544, 555–57 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that 15 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 16 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must also comply with 17 Federal Rule of Civil Procedure 8, which requires the complaint to contain “a short and plain 18 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see 19 also Moss v. Infinity Ins. Co., No. 15-CV-03456-JSC, 2015 WL 5360294, at *2 (N.D. Cal. Sept. 20 14, 2015). 21 While a court must construe an unrepresented plaintiff’s complaint liberally, see Garaux v. 22 Pulley, 739 F.2d 437, 439 (9th Cir. 1984), it may not add to the factual allegations in the 23 complaint, see Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). Litigants unrepresented by 24 counsel remain bound by the Federal Rules and Local Rules of this District. See N.D. Cal. Civ. 25 L.R. 3-9(a). Upon dismissal, self-represented plaintiffs proceeding in forma pauperis must be 26 given leave “to amend their complaint unless it is absolutely clear that the deficiencies of the 27 complaint could not be cured by amendment.” Franklin v. Murphy, 745 F.2d 1221, 1228 n.9 (9th 28 Cir. 1984) (internal quotation marks and citation omitted). 3 Case 3:21-cv-01784-JSC Document 8 Filed 07/19/21 Page 4 of 6 1 DISCUSSION 2 Ms. Jabbari pleads claims for relief under 42 U.S.C. § 1983 and 42 U.S.C. § 1985. There 3 are numerous theories for her Section 1983 claim including: excessive force, denial of telephone 4 call, denial of arraignment without unnecessary delay, denial of access to courts and counsel, 5 denial of adequate medical care, denial of right to refuse medical treatment, and denial of due 6 process in a disciplinary proceeding. Ms. Jabbari’s Section 1983 claims are adequately pled to 7 satisfy Section 1915 review; however, Ms. Jabbari’s Section 1985 claim is not adequately pled. 8 1. Plaintiff’s Section 1983 Claims 9 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 11 United States District Court Northern District of California 10 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 12 U.S. 42, 48 (1988). Ms. Jabbari alleges that even though she did not consent to a temperature 13 scan, DOES 1-4 “forcefully attacked Plaintiff, pinning her down while twisting her arm to 14 forcefully scan Plaintiff’s temperature.” (Compl. ¶ 11.) Additionally, “[d]ue to [a] faulty IV 15 treatment, Plaintiff became very cold in the solitary confinement cell” and when she asked for a 16 blanket the nurse told her to “ask [] for help when ‘you change your mind’ about putting on a 17 mask.” (Id. ¶ 21.) Ms. Jabbari alleges that Defendants County and Sheriff Bolanos authorized, 18 adopted, and promulgated a policy that denied Ms. Jabbari her arraignment hearing, subjected her 19 to solitary confinement, and did not permit a telephone call because she did not submit to a 20 COVID-19 test, temperature check, or wear a mask. (Id. ¶ 15, 19.) She could not “appear for 21 court, even virtually over a Zoom or Phone call, unless she subjected herself to their Covid-19 22 test.” (Id. ¶ 19.) These allegations are more than “naked assertion[s],” Iqbal, 556 U.S. at 678; 23 therefore, the Section 1983 claims in the complaint are sufficient to satisfy Section 1915 review. 24 This conclusion is for purposes of sua sponte section 1915 review only and is without prejudice to 25 Defendants moving to dismiss. 26 2. Plaintiff’s Section 1985 Claim 27 Ms. Jabbari’s Section 1985 claim is not adequately pled. Section 1985(3) prohibits two or 28 more persons from conspiring to deprive any person or class of persons of the equal protection of 4 Case 3:21-cv-01784-JSC Document 8 Filed 07/19/21 Page 5 of 6 1 the law. A cause of action under 42 U.S.C. § 1985(3) requires the plaintiff to show some racial or 2 class-based discrimination, see Griffin v. Breckenridge, 403 U.S. 88, 102 (1971), which Ms. 3 Jabbari does not allege. Accordingly, the Section 1985 claim does not survive Section 1915 4 screening. 5 6 7 8 CONCLUSION 1. For the reasons described above, the Section 1985(3) claim does not survive Section 1915 review. • 9 an amended complaint on or before August 16, 2021 that includes allegations 10 United States District Court Northern District of California 11 If Ms. Jabbari wishes to proceed with her Section 1985(3) claim she must file to further support her claim. • If Ms. Jabbari does not wish to pursue the Section 1985(3) claim, then by 12 August 16, 2021 she shall file an amended complaint that eliminates the 13 Section 1985(3) claim. 14 • Plaintiff is informed that the Court cannot refer to prior pleadings to make an 15 amended complaint complete. The amended complaint must be complete in 16 itself because it replaces the previously filed complaints. See Ferdik v. 17 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Accordingly, the amended 18 complaint should contain all the defendants, claims, and specific factual 19 allegations that Plaintiff wishes to put before the Court. 20 2. If Ms. Jabbari files an amended complaint that eliminates the Section 1985(3) claim, 21 the Court will order service on Defendants of the amended complaint that alleges the 22 Section 1983 claims. If Ms. Jabbari files an amended complaint that includes an 23 amended Section 1985(3) claim, the Court will screen the amended claim pursuant to 24 28 U.S.C. § 1915. 25 3. The Court encourages Ms. Jabbari to seek free assistance from the Northern District’s 26 Legal Help Center, 450 Golden Gate Avenue, 15th Floor, Room 2796, San Francisco, 27 CA 94102. In light of the ongoing COVID-19 pandemic, Ms. Jabbari should make a 28 telephone appointment by calling (415) 782-8982. 5 Case 3:21-cv-01784-JSC Document 8 Filed 07/19/21 Page 6 of 6 1 2 IT IS SO ORDERED. Dated: July 19, 2021 3 JACQUELINE SCOTT CORLEY United States Magistrate Judge 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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