French v. Staton et al

Filing 46

ORDER OF DISMISSAL - French's claims are DISMISSED with prejudice as to "Inverness Jail Nursing Staff" and "Corrections Health" for failure to state a claim. IT IS SO ORDERED. Dated this 15th day of May, 2012, by U.S. Magistrate Judge John V. Acosta. (copy mailed this date to plaintiff Harold J. French) (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

Civ. No. 3: ll-cv-375-AC

HAROLD J. FRENCH,
Plaintiff,

ORDER OF
DISMISSAL

v.

SHERIFF DANIEL STATON, DR.
ERSSON, BROOKLEY HOLTER,
INVERNESS JAIL NURSING STAFF,
CORRECTIONS HEALTH,
Defendants.

ACOSTA, Magistrate Judge:
The court dismissed all claims of plaintiff Harold J. French ("French") in its Opinion and
Order (#45) issued on March 13,2012, as to defendants Sheriff Daniel Staton, Dr. Ersson, and
Brookley I-loiter. In the complaint, French also named two additional defendants, Inverness Jail
Nursing Staff and Corrections Health, neither of which were parties to the previous motion.
Where a prisoner files an action seeking redress from a governmental entity or officer or
employee of a governmental entity, the court shall dismiss the case at any time if the court

determines that the action is "(1) frivolous, malicious, or fails to state a claim upon which relief may
be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28
U.S.C. § 1915A(b)(1)-(2) (2011). The code separately provides that where "any person" is
proceeding in forma pauperis, "the court shall dismiss the case at any time if the court determines
that ... the action or appeal is (i) frivolous or malicious; (ii) fails to state a claim upon which relief
may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief."
28 U.S.C. § 1915(e)(1), (2)(B)(i)-(iii) (2011). Accordingly, this court may sua sponte dismiss claims
asserted by French to the extent that they cannot plausibly be remedied.
"Liability under section 1983 arises only upon a showing of personal participation by the
defendant." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citing Fayle v. Stapley, 607 F.2d
858, 862 (9th Cir. 1979)). Local governmental units or municipalities, including counties, can be
sued as "persons" under section 1983 when an official policy results in a constitutional violation.

Hervey v. Estes, 65 F.3d 784, 791 (9th Cir. 1995) (citing Monell v. Dep 't a/Soc. Services, 436 U.S.
658, 690 (1978)). Municipalities and other local governing bodies may be liable under any oftlu'ec
theories: (1) if an employee was acting pursuant to an expressly adopted official policy; (2) if an
employee was acting pursuant to a longstanding practice or custom; or (3) if an employee was acting
as a final policymaker. Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004). First, with respect to
personal liablity, French's allegations against "Inverness Jail Nursing Staff' and "Corrections
Health" are insufficiently specific to state a claim against a particular defendant in his or her personal
capacity as they fail to identify an individual who personally participated in French's alleged injury.
Second, with respect to municipal liability, French's complaint also fail to state a claim against
"Inverness Jail Nursing Staff' or "Corrections Health" as it does not allege an official policy or
custom giving rise to French's alleged injUlY. In light ofFrcnch's failure to state a claim against the

remaining defendants, the court may sua sponte dismiss these claims.
The court is mindful of the general duty to provide pro se litigants a description of the
deficiencies of a pleading as well as an 0ppoliunity to file an amended pleading curing those
deficiencies. Here, however, in light of the court's prior Opinion and Order finding no constitutional
violation, the court finds French cannot cure the deficiencies of his claims against Defendants
Inverness Jail Staff and Corrections Health and therefore dismissal is with prejudice. Lopez v. Smith,
203 F.3d 1122, 1l30-1131 (9th Cir. 2000).
Accordingly, French's claims are DISMISSED with prejudice as to "Inverness Jail Nursing
Staff' and "Corrections Health" for failure to state a claim.
IT IS SO ORDERED.
DATED this

IScf~ of May, 2012.

cJj ()+-,--

JOHN V. ACOSTA
United \;itates Magistrate Judge