Flowers v. Alameda County Sheriff's Department et al

Filing 6

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Yvonne Gonzalez Rogers on 1/10/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 1/10/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C 12-3181 YGR (PR)

JOSEPH J. FLOWERS,

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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

Plaintiff,

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v.

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ALAMEDA COUNTY SHERIFF’S
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Defendants.

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/

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INTRODUCTION

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This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state

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prisoner. The Court, after having reviewed the complaint pursuant to 28 U.S.C. § 1915(A),

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DISMISSES the complaint with leave to file an amended complaint. Plaintiff shall file an

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amended complaint addressing the deficiencies detailed below on or before February 1,

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2013.
DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner

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

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See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and

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No. C 12-3181 YGR (PR)
ORDER DISMISSING COMPLAINT

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dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may

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be granted or seek monetary relief from a defendant who is immune from such relief. See id.

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§ 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica

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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

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to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

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For the Northern District of California

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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions

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cast in the form of factual allegations if those conclusions cannot reasonably be drawn from

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the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).

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

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

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

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

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B.

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Legal Claims
Plaintiff alleges that (1) R. Bixby and M. Menard, employees of the Alameda County

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Sheriff’s Department, used excessive force against him in violation of the Eighth

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Amendment; (2) Gregory Ahern, Sheriff of Alameda County, violated his Eighth

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Amendment rights by formulating policies that allowed for the use of excessive force;

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(3) Sergeant R. Lapoint violated his Eighth Amendment and due process rights by not

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screening plaintiff for medical needs, and other concerns, during booking; and (4) Gregory

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Ahern is responsible for formulating policies that allowed for constitutionally flawed

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booking procedures.

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Liberally construed, Claim 1 is cognizable under § 1983. Claim 2, however, is
DISMISSED with leave to amend. It is not sufficient to assert that Ahern is responsible

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No. C 12-3181 YGR (PR)
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because he formulated unnamed policies. There is no respondeat superior liability under

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§ 1983. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). It is not enough that the

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supervisor merely has a supervisory relationship over the defendants; the plaintiff must show

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that the supervisor “participated in or directed the violations, or knew of the violations and

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failed to act to prevent them.” Id. Furthermore, supervisor defendants are entitled to

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qualified immunity where the allegations against them are simply “bald” or “conclusory”

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because such allegations do not “plausibly” establish the supervisors’ personal involvement

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in their subordinates’ constitutional wrong. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948–52

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(2009) (noting no vicarious liability under section 1983 or Bivens actions). So, plaintiff’s

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For the Northern District of California

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conclusory allegations about failure to train are insufficient. He must allege “a specific

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policy” or “a specific event” instigated by them that led to the constitutional violations.

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Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012).

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Claims 3 and 4 are DISMISSED without leave to amend (and without prejudice) as

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they are unrelated to the excessive force claims. If plaintiff seeks relief for these claims, he

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may file a separate civil rights action.

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Plaintiff shall file an amended complaint on or before February 1, 2013. The first

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amended complaint must include the caption and civil case number used in this order

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(12-3181 YGR (PR)) and the words FIRST AMENDED COMPLAINT on the first page.

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Because an amended complaint completely replaces the previous complaints, plaintiff

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must include in his first amended complaint all the claims he wishes to present,

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including Claim 1 found cognizable above, and all of the defendants he wishes to sue.

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See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate

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material from the prior complaint by reference. Failure to file an amended complaint in

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accordance with this order will result in dismissal of this action without further notice to

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plaintiff.

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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

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of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask

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for an extension of time to do so. Failure to comply may result in the dismissal of this action

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED: January 10, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
For the Northern District of California

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