Colvin v. San Francisco Sheriff Department

Filing 10

ORDER OF SERVICE Habeas Answer or Dispositive Motion due by 11/3/2015. Signed by Judge Nathanael Cousins on 9/4/2015. (Attachments: # 1 Certificate/Proof of Service)(sp, COURT STAFF) (Filed on 9/4/2015)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

10
11
12

LEONARD LEE COLVIN, JR.,
Plaintiff,

13

ORDER OF SERVICE; DIRECTING
DEFENDANTS TO FILE
DISPOSITIVE MOTION OR NOTICE
REGARDING SUCH MOTION

v.

14
15

No. C 14-5400 NC (PR)

SAN FRANCISCO SHERIFF’S
DEPARTMENT, et al.,

16

Defendants.
/

17
18

Plaintiff Leonard Lee Colvin, Jr., a California state pretrial detainee proceeding pro

19

se, filed an amended civil rights complaint. For the reasons stated below, the Court orders

20

service upon named Defendants and directs Defendants to file a dispositive motion or notice

21

regarding such motion.

22
23

DISCUSSION
I.

Standard of Review

24

A federal court must engage in a preliminary screening of any case in which a

25

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

26

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

27

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

28

may be granted, or seek monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v.

1

Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that

2
3

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

4

violation was committed by a person acting under the color of state law. West v. Atkins, 487

5

U.S. 42, 48 (1988).

6

II.

7

Legal Claims
According to the amended complaint, on February 21, 2014, and March 3, 2014,

8

Plaintiff was housed at the San Francisco County jail. Defendants Sgt. Sanchez and Deputy

9

Nue put Plaintiff’s name on a list of people who needed to be transferred to another facility

United States District Court
For the Northern District of California

10

in order to attend court. However, Plaintiff did not have court on those days, and the San

11

Francisco Sheriff’s Department has no policy to ensure that the list of people for transfer is

12

official. As a result of being placed on this list, Plaintiff was taken to the jail where Sgt.

13

Sanchez and Deputy Nue worked. They physically intimidated Plaintiff, handcuffing him

14

without reason, and forced him to kneel while twisting Plaintiff’s wrists. They also

15

threatened Plaintiff with a physical beating, spit on him, and generally manhandled him.

16

Plaintiff alleges that they did so because Plaintiff had been married to their co-worker,

17

Deputy Myres, and the intimidation was to prevent Plaintiff from talking about Deputy

18

Myres’ unspecified involvement in Plaintiff’s criminal case. Plaintiff believes that Deputy

19

Myres knew Sgt. Sanchez and Deputy Nue would intimidate Plaintiff and, in fact,

20

encouraged them to do so.

21

Liberally construed, Plaintiff has stated a cognizable claim against Sgt. Sanchez,

22

Deputy Nue, and Deputy Myres for retaliation, cruel and unusual punishment, and a violation

23

of his right to free speech.

24

However, the Court dismisses the San Francisco Sheriff’s Department for failure to

25

state a claim. To impose municipal liability under § 1983 for a violation of constitutional

26

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

27

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

28

deliberate indifference to the plaintiff's constitutional rights; and (4) that the policy is the
2

1

moving force behind the constitutional violation. See Plumeau v. School Dist. #40 County of

2

Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). Although Plaintiff alleges that the San Francisco

3

Sheriff’s Department lacked a policy safeguarding inmates from being transported to another

4

jail for official purposes, random acts or isolated incidents of unconstitutional action by a

5

non-policymaking employee are insufficient to establish the existence of a municipal policy

6

or custom. See Rivera v. County of Los Angeles, 745 F.3d 384, 398 (9th Cir. 2014). A

7

plaintiff may prove the existence of a custom or informal policy with evidence of repeated

8

constitutional violations for which the errant municipal officials were not discharged or

9

reprimanded. See Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992). Here, Plaintiff

United States District Court
For the Northern District of California

10

has not alleged that this lack of policy resulted in any other similar incidents with other

11

inmates. Thus, the San Francisco Sheriff’s Department is DISMISSED. Because Plaintiff

12

has already had an opportunity to state a cognizable claim against it, the dismissal is without

13

leave to amend.

14
15

CONCLUSION
1.

The clerk of the court shall mail a Notice of Lawsuit and Request for Waiver of

16

Service of Summons, two copies of the Waiver of Service of Summons, a copy of the

17

complaint and all attachments thereto, a magistrate judge consent form, and a copy of this

18

order to Sgt. Sanchez, Deputy Nue, and Deputy Myres at the San Francisco Sheriff’s

19

Department. The clerk of the court shall also mail a courtesy copy of the complaint and a

20

copy of this order to the City Attorney’s Office, Litigation, Fox Plaza, 1390 Market

21

Street, 6th Floor, San Francisco, CA 94102-5408. Additionally, the clerk shall mail a copy

22

of this order to Plaintiff.

23

2.

Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure

24

requires them to cooperate in saving unnecessary costs of service of the summons and

25

complaint. Pursuant to Rule 4, if Defendants, after being notified of this action and asked by

26

the court, on behalf of Plaintiff, to waive service of the summons, fail to do so, they will be

27

required to bear the cost of such service unless good cause be shown for their failure to sign

28

and return the waiver form. If service is waived, this action will proceed as if Defendants
3

1

had been served on the date that the waiver is filed, and Defendants will not be required to

2

serve and file an answer before sixty (60) days from the date on which the request for waiver

3

was sent. Defendants are asked to read the statement set forth at the bottom of the waiver

4

form that more completely describes the duties of the parties with regard to waiver of service

5

of the summons. If service is waived after the date provided in the Notice but before

6

Defendants have been personally served, the Answer shall be due sixty (60) days from the

7

date on which the request for waiver was sent or twenty (20) days from the date the waiver

8

form is filed, whichever is later.

9

3.

No later than sixty (60) days from the date the waivers are sent from the court,

United States District Court
For the Northern District of California

10

Defendants shall file a motion for summary judgment or other dispositive motion with

11

respect to the cognizable claim in the complaint. At that time, Defendants shall also file

12

the magistrate judge consent form.

13

Any motion for summary judgment shall be supported by adequate factual

14

documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil

15

Procedure. Defendants are advised that summary judgment cannot be granted, nor

16

qualified immunity found, if material facts are in dispute. If Defendants are of the

17

opinion that this case cannot be resolved by summary judgment, they shall so inform

18

the court prior to the date the summary judgment motion is due.

19

4.

Plaintiff’s opposition to the dispositive motion shall be filed with the court and

20

served on Defendants no later than twenty-eight (28) days from the date Defendants’ motion

21

is filed. Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and

22

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment

23

must come forward with evidence showing triable issues of material fact on every essential

24

element of his claim).

25
26
27
28

5.

Defendants shall file a reply brief no later than fourteen (14) days after

Plaintiff’s opposition is filed.
6.

The motion shall be deemed submitted as of the date the reply brief is due. No

hearing will be held on the motion unless the court so orders at a later date.
4

1

7.

All communications by the Plaintiff with the court must be served on

2

Defendants or Defendants’ counsel, by mailing a true copy of the document to Defendants or

3

Defendants’ counsel.

4
5
6

8.

Discovery may be taken in accordance with the Federal Rules of Civil

Procedure. No further court order is required before the parties may conduct discovery.
9.

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

7

court and all parties informed of any change of address and must comply with the court’s

8

orders in a timely fashion. Failure to do so may result in the dismissal of this action for

9

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

United States District Court
For the Northern District of California

10

IT IS SO ORDERED.

11
12

DATED:
NATHANAEL M. COUSINS
United States Magistrate Judge

13
14
15
16
17
18

P:\PRO-SE\NC\CR 2014\Colvin 14-5400 srv.wpd

19
20
21
22
23
24
25
26
27
28
5