Starr v. Alameda County Jail

Filing 9

ORDER of Dismissal With Leave to Amend; Denying 3 Motion to Appoint Counsel by Judge Ronald M. Whyte. (jg, COURT STAFF) (Filed on 12/3/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SHANNON LEE STARR,

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Plaintiff,

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v.
ALAMEDA COUNTY JAIL,

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Defendant.

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No. C 12-4400 RMW (PR)
ORDER OF DISMISSAL
WITH LEAVE TO AMEND;
DENYING MOTION FOR
APPOINTMENT OF
COUNSEL

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Plaintiff, a California state prisoner, proceeding pro se, filed a civil rights complaint
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pursuant to 42 U.S.C. § 1983. Plaintiff is granted leave to proceed in forma pauperis in a
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separate order. For the reasons stated below, the court dismisses the complaint with leave to
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amend.
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DISCUSSION
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A.

Standard of Review

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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. See
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28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss
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any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or
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seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1),
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(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police
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Order of Dismissal with Leave to Amend; Denying Motion for Appointment of Counsel
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Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

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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 (2) that

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the alleged deprivation was committed by a person acting under the color of state law. West v.

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

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B.

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Plaintiff’s Claims
In his complaint, plaintiff claims, inter alia, that his pain medications to treat his severe

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chronic pain have been discontinued; his pain medication to treat his dental issues are not being

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dispensed; his dental issues are not being addressed; his kidney and heart problems are not being

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properly treated; his prostate has not been checked, despite plaintiff’s repeated requests; and he

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was retaliated against for filing grievances.

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Plaintiff names the Alameda County Jail as the only defendant. While local governments

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are “persons” subject to liability under 42 U.S.C. § 1983 where official policy or custom causes

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a constitutional tort, see Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978), a city or

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county may not be held vicariously liable for the unconstitutional acts of its employees under the

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theory of respondeat superior, see Board of Cty. Comm’rs. of Bryan Cty. v. Brown, 520 U.S.

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397, 403 (1997); Monell, 436 U.S. at 691. To impose municipal liability under § 1983 for a

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violation of constitutional rights, a plaintiff must show: (1) that the plaintiff possessed a

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constitutional right of which he or she was deprived; (2) that the municipality had a policy; (3)

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that this policy amounts to deliberate indifference to the plaintiff’s constitutional rights; and (4)

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that the policy is the moving force behind the constitutional violation. See Plumeau v. School

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Dist. #40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). Here, plaintiff has not alleged

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that the jail had any such policy, nor has he alleged any facts that would support that the jail had

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any such policy. Thus, Alameda County Jail is DISMISSED with leave to amend should

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plaintiff be able to support his claim against this defendant in good faith.

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Further, plaintiff has failed to identify any individual defendants by name. The use of

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“John Doe” to identify a defendant is not favored in the Ninth Circuit. See Gillespie v. Civiletti,

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629 F.2d 637, 642 (9th Cir. 1980). Still, situations may arise where the identity of alleged
Order of Dismissal with Leave to Amend; Denying Motion for Appointment of Counsel
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defendants cannot be known prior to the filing of a complaint. In such circumstances, the Ninth

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Circuit has made clear that the plaintiff should be given an opportunity through discovery to

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identify the unknown defendants, unless it is clear that discovery would not uncover their

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identities or that the complaint should be dismissed on other grounds. See id. However, this

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case is not like Gillespie, where the plaintiff could serve such discovery requests on the

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defendants he had named, in order to seek the identifies of the unidentified defendants. Here,

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there are no named defendants for the plaintiff to seek such discovery from.

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Because there is the possibility that plaintiff can discover the identity of an unnamed
defendant, even without propounding discovery requests to an opposing party, plaintiff will be

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granted leave to amend. In his amended complaint, plaintiff must specifically identify what each

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named defendant did or did not do in order to state a claim with regard to each separate claim.

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Plaintiff will be granted leave to amend to allege specifics. In his amended complaint, he must

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establish legal liability of each person for the claimed violation of his rights. Liability may be

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imposed on an individual defendant under section 1983 if the plaintiff can show that the

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defendant proximately caused the deprivation of a federally protected right. See Leer v.

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Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125

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(9th Cir. 1981). A person deprives another of a constitutional right within the meaning of

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section 1983 if he does an affirmative act, participates in another’s affirmative act or omits to

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perform an act which he is legally required to do, that causes the deprivation of which the

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plaintiff complains. See Leer, 844 F.2d at 633; see, e.g., Robins v. Meecham, 60 F.3d 1436,

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1442 (9th Cir. 1995) (prison official’s failure to intervene to prevent Eighth Amendment

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violation may be basis for liability). Sweeping conclusory allegations will not suffice; plaintiff

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must instead “set forth specific facts as to each individual defendant’s” deprivation of protected

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rights. Leer, 844 F.2d at 634.

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Further, the complaint has several claims that do not appear to be properly joined under

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Federal Rule of Civil Procedure 20(a) concerning joinder of claims and defendants. Rule 20(a)

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provides that all persons “may be joined in one action as defendants if there is asserted against

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them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the
Order of Dismissal with Leave to Amend; Denying Motion for Appointment of Counsel
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same transaction, occurrence, or series of transactions or occurrences and if any question of law

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or fact common to all defendants will arise in the action.” Plaintiff’s claims range from

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allegations of deliberate indifference to serious medical needs to retaliation. The claims

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presumably are suing different defendants. In his amended complaint, plaintiff may only allege

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claims that (a) arise out of the same transaction, occurrence, or series of transactions or

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occurrences and (b) present questions of law or fact common to all defendants named therein.

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The bottom line is that plaintiff cannot complain in his amended complaint about unrelated

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incidents during his imprisonment against unrelated defendants. He must choose what claims he

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wants to pursue that meet the joinder requirements; if he asserts improperly joined claims or

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defendants in his amended complaint, they will be dismissed.

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Accordingly, the complaint is DISMISSED WITH LEAVE TO AMEND.
C.

Motion for Appointment of Counsel

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Plaintiff’s motion for appointment of counsel is DENIED for want of exceptional

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circumstances. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997); see also Lassiter v.

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Dep’t of Social Services, 452 U.S. 18, 25 (1981) (there is no constitutional right to counsel in a

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civil case). The court has dismissed plaintiff’s complaint with leave to amend, and has not been

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able to determine if he can allege a cognizable claim for relief. This denial is without prejudice

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to the court’s sua sponte appointment of counsel at a future date should the circumstances of this

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case warrant such appointment.

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CONCLUSION

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For the foregoing reasons, the court hereby orders as follows:

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1.

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Alameda County Jail is DISMISSED with leave to amend. Plaintiff’s complaint

is DISMISSED with leave to amend.
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If plaintiff can cure the pleading deficiencies described above, he shall file an

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AMENDED COMPLAINT within thirty days from the date this order is filed. The amended

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complaint must include the caption and civil case number used in this order (C 12-4400 RMW

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(PR)) and the words AMENDED COMPLAINT on the first page. Plaintiff may not incorporate

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material from the prior complaint by reference. If plaintiff files an amended complaint, he must
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allege, in good faith, facts - not merely conclusions of law - that demonstrate that he is entitled to

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relief under the applicable federal statutes. Failure to file an amended complaint within thirty

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days and in accordance with this order will result in a finding that further leave to amend

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would be futile and this action will be dismissed.

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3.

Plaintiff is advised that an amended complaint supersedes the original complaint.

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“[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged

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in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Defendants not named in an amended complaint are no longer defendants. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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4.

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

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of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
United States District Judge

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Order of Dismissal with Leave to Amend; Denying Motion for Appointment of Counsel
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

SHANNON LEE STARR,

Case Number: CV12-04400 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
ALAMEDA COUNTY JAIL et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on December 3, 2012, 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.

Shannon Lee Starr ALJ-123/8-A-1
Alameda County Santa Rita Jail
5325 Broder Boulevard
Dublin, CA 94568
Dated: December 3, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk