Eduardo Magallon v. Ventura County Sheriffs Dept et al
Filing
6
ORDER DISMISSING CASE by Magistrate Judge Victor B. Kenton, In an abundance of caution, Plaintiff will be afforded an opportunity to amend his Complaint to attempt to overcome the defects discussed above. Accordingly, IT IS HEREBY ORDERED: (1) Plaint iffs Complaint is dismissed with leave to amend; (2) the Court Clerk is directed to send Plaintiff a civil rights form utilized by the Central District of California; and (3) Plaintiff is granted 30 days from the date of this Order within which to fi le a First Amended Complaint. The First Amended Complaint must be complete within itself and shall not incorporate by reference any portion of the original Complaint. Plaintiff may not add new parties without leave of the Court. Failure to comply with the requirements set forth in this Order may result in a recommendation that this action be dismissed with prejudice. re Complaint (Prisoner Civil Rights), Complaint (Prisoner Civil Rights) 3 (SEE ORDER FOR FURTHER DETAILS) (lmh)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
7
8
9
10
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EDUARDO MAGALLON,
12
13
14
Plaintiff,
v.
VENTURA COUNTY SHERIFF’S
DEPARTMENT, et al.,
15
Defendants.
)
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No. CV 11-07053-CAS (VBK)
ORDER RE DISMISSAL OF COMPLAINT
WITH LEAVE TO AMEND
16
17
Pro se prisoner Eduardo Magallon (hereinafter referred to as
18
“Plaintiff”) filed a civil rights Complaint pursuant to 42 U.S.C.
19
§1983 in the United States District Court for the Central District of
20
California on August 31, 2011 pursuant to the Court’s Order re Leave
21
to File Action Without Prepayment of Full Filing Fee.
22
23
24
BACKGROUND
Plaintiff
alleges
that
Defendants
Ventura
County
Sheriff’s
25
Department, Sheriff Dean, Deputy Reyerson and Deputy Clark have
26
violated his civil rights. (See Complaint at 2-3.) Specifically,
27
Plaintiff alleges that on April 18, 2011 through April 25, 2011, while
28
Plaintiff was housed at the Ventura County Jail, the following
1
occurred: (1) Defendants failed to provide Plaintiff with his three
2
phone calls; (2) Defendants performed a full naked body search; (3)
3
Defendants fed Plaintiff a dietary tray (meat loaf) in segregation
4
without
5
mentally and emotionally without provocation; (5) Plaintiff was denied
6
medical attention; (6) Plaintiff asked for a mattress, blanket and
7
sheets but was told he had to “earn it;” (7) Plaintiff was refused
8
grievance forms; and (8) Defendants used color of authority (Eighth
9
Amendment) cruel and unusual punishment. (Complaint at 5.)
medical
clearance;
(4)
Plaintiff
was
beaten
physically,
10
Plaintiff alleges that Defendant Deputy Reyerson denied Plaintiff
11
phone calls and beat Plaintiff while handcuffed and denied Plaintiff
12
medical attention.
13
Sheriff’s Department denied Plaintiff his right to phone calls,
14
performed a naked search, fed Plaintiff a dietary tray without medical
15
clearance and physically, mentally, verbally and emotionally abused
16
Plaintiff.
17
Plaintiff medical attention, and refused to give Plaintiff a grievance
18
form. (Complaint at 5.)
19
20
Plaintiff alleges that Defendant Ventura County
Plaintiff alleges that Defendant Deputy Clark refused
Plaintiff seeks monetary compensation and return of his property.
(Complaint at 6.)
21
22
STANDARD OF REVIEW
23
Because Plaintiff is seeking to proceed in forma pauperis, the
24
Court shall review such a complaint “as soon as practicable after
25
docketing.”
26
required to dismiss a complaint if the Court finds that the complaint
27
(1) is legally frivolous or malicious, (2) fails to state a claim upon
28
which relief may be granted, or (3) seeks monetary relief from a
Pursuant to 28 U.S.C. §1915(e)(2), the district court is
2
1
Defendant immune from such relief.
2
in forma pauperis complaints).
3
28 U.S.C. §1915(e)(2)(B) (re: all
A complaint may also be dismissed for lack of subject matter
4
jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1).
5
Williams, 490 U.S. 319, 327 n. 6, 109 S. Ct. 1827 (1989) (unanimous
6
decision) (patently insubstantial complaint may be dismissed under
7
Rule 12(b)(1) for lack of subject matter jurisdiction.
8
appears by suggestion of the parties or otherwise that the court lacks
9
jurisdiction of the subject matter, the court shall dismiss the
Neitzke v.
“Whenever it
10
action.”
11
the Court’s subject matter jurisdiction can be raised at any time,
12
including sua sponte by the Court.
13
F.2d 1190, 1194 n. 2. (9th Cir. 1988).
Fed. R. Civ. P. 12(h)(3) (emphasis added).
A challenge to
Emrich v. Touche Ross and Co., 846
14
“To survive a motion to dismiss, a complaint must contain
15
sufficient factual matter, accepted as true, to ‘state a claim to
16
relief that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949
17
(quoting Twombly, 550 U.S. at 570).
18
when the plaintiff pleads factual content that allows the Court to
19
draw the reasonable inference that the defendant is liable for the
20
misconduct alleged.”
21
(2009)(citing Twombly, 550 U.S. at 556.)
22
is not akin to a ‘probability requirement,’ but it asks for more than
23
a sheer possibility that a defendant acted unlawfully.” (Id.)
24
Although a complaint need not include “‘detailed factual allegations,’
25
... [a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
26
recitation of the elements of the cause of action will not do.’”
27
Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555.
28
Complaint must contain “factual content that allows the court to draw
“A claim has facial plausibility
Iqbal, 129 S.Ct. 1937, 1949, 172 L.Ed.2d 868
3
“The plausibility standard
The
1
the
2
misconduct alleged.”
3
pleaded facts do not permit the court to infer more than the mere
4
possibility of misconduct, the complaint has alleged - but it has not
5
‘show[n]’ - ‘that the pleader is entitled to relief.’” (Id. at 1950
6
[quoting Fed.R.Civ.P. 8(a)(2) (internal brackets omitted). “[A] well-
7
pled complaint may proceed even if it appears that a recovery is very
8
remote and unlikely.”
9
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974).
10
In civil rights cases in which the Plaintiff appears pro se, the
11
pleadings must be construed liberally, so as to afford the Plaintiff
12
the benefit of any doubt as to the potential validity of the claims
13
asserted. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623
14
(9th Cir. 1988).
15
finds that the complaint should be dismissed for failure to state a
16
claim, the Court has the discretion to dismiss the complaint with or
17
without leave to amend.
18
Cir. 2000).
19
it is clear that the deficiencies of the complaint cannot be cured by
20
amendment. Lopez, 203 F.3d at 1130-31; Cato v. United States, 70 F.3d
21
1103, 1106 (9th Cir. 1995); Karim-Panahi v. Los Angeles Police Dept.,
22
839 F.2d 621, 623 (9th Cir. 1998); Noll v. Carlson, 809 F.2d 1446, 1448
23
(9th Cir. 1987).
24
like any other litigant.
25
cert. denied, 516 U.S. 838 (1995).
26
reasonable
inference
that
the
defendant
is
liable
for
the
Iqbal, 129 S.Ct. at 1949. “[W]here the well-
Twombly, 550 U.S. at 556, 127 S.Ct. 1955
If, despite such liberal construction, the Court
Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th
A pro se litigant should be given leave to amend, unless
A pro se litigant must follow the Rules of Procedure
Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.),
The preferred practice of pleading is to state various claims for
27
relief in separate counts.
28
F.Supp. 1303, 1307 n.1 (E.D. VA. 1981).
Haynes v. Anderson & Strudwick, Inc., 508
4
Thus, for example, in a civil
1
rights action, each alleged constitutional deprivation should be pled
2
as a separate claim.
3
Illinois 1987).
4
issues that will be addressed in the ensuing litigation. O’Donnell v.
5
Elgin, J & E Ry. Co., 338 U.S.
6
Columbia Gas & Electric Corp., 186 F.2d 464, 469 (3d Cir. 1950), cert.
7
denied, 341 U.S. 921 (1951).
8
results in muddled pleadings, Pryor, 662 F.Supp. at 1114, and places
9
the unnecessary burden on the Court and the defendants to decipher
10
Pryor v. Cajda, 662 F.Supp. 1114, 1115 (N.D.
The purpose of this requirement is to clarify the
384, 392 (1949); Williamson v.
Grouping different claims together
which facts support which claims.
Haynes, 508 F.Supp. at 1307 n.1.
11
12
A.
13
Any complaint filed in this Court must contain (1) “a short and
14
plain statement of the grounds upon the Court’s jurisdiction depends”
15
and (2) “a short and plain statement of the claim” showing that the
16
Plaintiff is entitled to relief.
17
Plaintiff must allege with at least some degree of particularity overt
18
acts which Defendants engaged in that support the Plaintiff’s claim.”
19
Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir.
20
1984).
Federal Rule of Civil Procedure 8(a).
Fed. R. Civ. P., Rule 8(a).
“The
21
22
23
24
DISCUSSION
For all of the following reasons, the Complaint should be
dismissed with leave to amend.
25
26
A.
27
In order to state a claim under section 1983, a plaintiff must
28
Section 1983 Pleading Requirements.
allege that:
(1) the defendants were acting under color of state law
5
1
at the time the complained of acts were committed; and (2) the
2
defendants’ conduct deprived plaintiff of rights, privileges, or
3
immunities secured by the Constitution or laws of the United States.
4
See, Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir.), cert. denied,
5
522 U.S. 996, 118 S.Ct. 559 (1997); Karim-Panahi v. Los Angeles Police
6
Dept., 839 F.2d 621, 624 (9th Cir. 1988); Haygood v. Younger, 769 F.2d
7
1350, 1354 (9th Cir. 1985) (en banc), cert. denied, 478 U.S. 1020
8
(1986).
9
affirmative link or connection between the defendants' actions and the
Liability
under
section
1983
is
predicated
upon
an
10
claimed deprivations.
11
S.Ct. 598 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);
12
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
See Rizzo v. Goode, 423 U.S. 362, 372-73, 96
13
A person deprives another of a constitutional right,
14
where that person “does an affirmative act, participates in
15
another’s affirmative acts, or omits to perform an act which
16
[that person] is legally required to do that causes the
17
deprivation of which complaint is made.” [citation] Indeed,
18
the “requisite causal connection can be established not only
19
by
20
deprivation, but also by setting in motion a series of acts
21
by others which the actor knows or reasonably should know
22
would cause others to inflict the constitutional injury.”
23
Johnson v. Duffy, 588 F.2d at 743-44.
some
kind
of
direct
personal
participation
in
the
24
25
B.
26
Amendment Claim Concerning his Medical Care.
27
28
Plaintiff Is Granted Leave To Amend To State An Eighth
Plaintiff alleges Defendants violated his Eighth Amendment rights
and
were
deliberately
indifferent
6
towards
his
medical
care
and
1
treatment. “Denial of medical attention to prisoners constitutes an
2
Eighth
3
indifference to serious medical needs of the prisoner.”
4
McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986), cert. denied, 481 U.S.
5
1069 (1987); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285 (1976).
6
Deliberate indifference occurs when prison officials deny, delay or
7
intentionally interfere with medical treatment or in the way in which
8
prison officials provide medical care.
9
1050, 1062 (9th Cir. 1992), overruled on other grounds by WMX Tech.,
10
Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997); Jett v. Penner,
11
439 F.3d 1091, 1096 (9th Cir. 2006); Hutchinson v. United States, 838
12
F.2d 390, 394 (9th Cir. 1988); Hunt v. Dental Dept., 865 F.2d 198 (9th
13
Cir. 1989).
14
official’s attitude and conduct in response to a prisoner’s serious
15
medical needs.
16
2475 (1993); Estelle, 429 U.S. at 104-05.
Amendment
violation
if
the
denial
amounts
to
deliberate
Toussaint v.
McGuckin v. Smith, 974 F.2d
Deliberate indifference may also be shown by a prison
Helling v. McKinney, 509 U.S. 25, 32-33, 113 S.Ct.
17
To state a deliberate indifference claim, a prisoner plaintiff
18
must allege both that the deprivation of medical care in question was
19
objectively serious, and that the defendant official acted with a
20
subjectively culpable state of mind.
21
297, 111 S. Ct. 2321 (1991).
22
indifference is satisfied when it is established that “the official
23
knew of and disregarded a substantial risk of serious harm to [the
24
prisoner’s] health or safety.”
25
Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970 (1994)).
26
The
courts
have
Wilson v. Seiter, 501 U.S. 294,
The required showing of deliberate
Johnson, 134 F.3d at 1398 (citing
recognized
that
deliberate
indifference
to
27
serious medical needs may be manifested in two ways: “It may appear
28
when prison officials deny, delay or intentionally interfere with
7
1
medical treatment, or it may be shown by the way in which prison
2
officials provide medical care.”
3
F.2d 390, 394 (9th Cir. 1998)(citing Estelle v. Gamble, 429 U.S. at
4
105).
5
medical
6
inadvertence, or differences in medical judgment or opinion do not
7
rise to the level of a constitutional violation. Jackson v. McIntosh,
8
90 F.3d 330, 331 (9th Cir.), cert. denied, 519 U.S. 1029 (1996);
9
Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon
10
Hutchinson v. United States, 838
In either case, however, the indifference to the inmate’s
needs
must
be
purposeful
and
substantial;
negligence,
State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981).
11
Medical malpractice, even gross medical malpractice, does not
12
amount to a violation of the Eighth Amendment.
13
Lab, 622 F.2d 458, 460 (9th Cir. 1980).
14
and prison officials over the necessity for or extent of medical
15
treatment does not raise a claim under §1983.
16
891 F.2d 240, 242 (9th Cir. 1989); Shields v. Kunkel, 442 F.2d 409,
17
410 (9th Cir. 1971); Mayfield v. Craven, 433 F.2d 873 (9th Cir. 1970).
18
Plaintiff must set forth with particularity, specific facts
19
demonstrating each individual Defendant’s “deliberate indifference” to
20
Plaintiff’s medical condition.
21
each individual Defendant did or failed to do to with respect to
22
Plaintiff’s medical care.
23
been denied adequate medical care and then list individual Defendants.
24
In order to hold an individual Defendant liable, Plaintiff must name
25
the individual Defendant, describe where that Defendant is employed
26
and in what capacity, and explain how that Defendant acted under color
27
of
28
individual Defendants were deliberately indifferent to his serious
state
law.
Broughton v. Cutter
A dispute between a prisoner
See Sanchez v. Vild,
Plaintiff should state what acts that
Plaintiff may not simply claim that he has
Plaintiff
has
not
8
alleged
facts
showing
that
1
medical needs.
2
3
C.
4
5
Plaintiff’s Excessive Force Claim Is Dismissed with Leave to
Amend.
Plaintiff alleges that he was beaten physically, mentally and
6
emotionally without provocation. (Complaint at 5.)
7
however, “must allege facts, not simply conclusions, that show that an
8
individual was personally involved in the deprivation of his civil
9
rights.”
A plaintiff,
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998),
10
cert. denied, 525 U.S. 1154, 119 S.Ct. 1058 (1999); see Iqbal, 129
11
S.Ct. at 1950 (stating that a complaint must contain more than legal
12
conclusions to withstand dismissal for failure to state a claim).
13
With an Eighth Amendment excessive force claim, the “core judicial
14
inquiry” is “whether force is applied in a good faith effort to
15
maintain or restore discipline, or maliciously and sadistically to
16
cause harm.”
17
(2010)(per curiam)(quoting Hudson v. McMillan, 503 U.S. 1, 7, 112
18
S.Ct. 995 (1992)).
19
Plaintiff
Wilkins v. Gaddy, ___ U.S. ___, 130 S.Ct. 1175, 1178
is
granted
leave
to
allege
non-conclusory
facts
20
explaining what each Defendant did or failed to do that amounts to the
21
use of excessive force in violation of the Eighth Amendment.
22
23
D.
24
Plaintiff names Sheriff Dean as a defendant in this action.
25
Supervisory personnel generally are not liable under 42 U.S.C. §1983
26
on any theory of respondeat superior or vicarious liability in the
27
absence of a state law imposing such liability.
28
of San Diego, 942 F.2d 1435, 1443-44 (9th Cir. 1991), cert. denied,
Supervisory Liability.
9
See Redman v. County
1
502 U.S. 1074 (1992).
2
§1983 only if he or she was personally involved in the constitutional
3
deprivation, or if there was a sufficient causal connection between
4
the supervisor’s wrongful conduct and the constitutional violation.
5
See Id. at 1446-1447.
6
a policy promulgated by the supervisor, the plaintiff must identify a
7
specific policy and establish a “direct causal link” between that
8
policy and the alleged constitutional deprivation. See, e.g., City of
9
Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103 L. Ed.
10
2d 412 (1989); Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992).
11
A “failure to train” theory can be the basis for a supervisor’s
12
liability under §1983 in only limited circumstances.
13
Canton, 489 U.S. at 387-90 (liability only where failure to train
14
amounts to deliberate indifference).
A supervisory official may be liable under
To premise a supervisor’s alleged liability on
See City of
15
16
17
18
E.
Plaintiff’s Harassment Claim Fails to State a Claim Under 42
U.S.C. §1983.
Plaintiff alleges that Defendants verbally harassed him.
Such
19
allegations of harassment, even as made to deny Plaintiff access to
20
the grievance procedure, do not state a claim under the Constitution.
21
Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987)(mere threat does not
22
constitute constitutional wrong, nor do allegations that naked threat
23
was for purpose of denying access to courts compel contrary result).
24
See also Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997)(abusive
25
language directed at inmate’s ethnic background held insufficient to
26
raise constitutional claim); Rutledge v. Arizona Bd. of Regents, 660
27
F.2d 1345, 1353 (9th Cir. 1981), affirmed sub nom, Kush v. Rutledge,
28
460 U.S. 719, 103 S.Ct. 1483 (1983); Keenan v. Hall, 83 F.3d 1083,
10
1
1092
2
1998)(disrespectful and assaultive comments by prison guard not enough
3
to implicate Eighth Amendment); Oltarzewski v. Ruggiero, 830 F.2d 136,
4
139 (9th Cir. 1987)(directing vulgar language at prisoner does not
5
state constitutional claim).
6
554, 564-65 (9th Cir. 2009). Accordingly, Plaintiff’s claims of verbal
7
harassment or threats are dismissed without leave to amend.
(9th
Cir.
1996),
amended
by
135
F.3d
1318
(9th
Cir.
See also Corales v. Bennett, 567 F.3d
8
9
10
F.
Plaintiff Fails to State A Claim Based on the Deprivation of
His Property.
11
Plaintiff alleges that Defendants failed to return to Plaintiff
12
his property that was confiscated at the time of his booking at jail.
13
The Due Process Clause protects prisoners from being deprived of
14
property without due process of law, Wolff v. McDonald, 418 U.S. 539,
15
556, 94 S.Ct. 2963 (1974), and prisoners have a protected interest in
16
their personal property.
17
1974). However, “[a]n unauthorized intentional deprivation of property
18
by a state employee does not constitute a violation of the procedural
19
requirements of the Due Process Clause of the Fourteenth Amendment if
20
a meaningful post-deprivation remedy for the loss is available.”
21
Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194 (1984); Parratt v.
22
Taylor, 451 U.S. 527, 541-44, 101 S.Ct. 1908 (1981), overruled on
23
other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662
24
(1986)(a deprivation of property allegedly caused by a state employee
25
does not constitute a valid §1983 constitutional claim if the state
26
provides other adequate post-deprivation remedies). The Ninth Circuit
27
has held that California law provides an adequate post-deprivation
28
remedy for property deprivations caused by public officials.
Hansen v. May, 502 F.2d 728, 730 (9th Cir.
11
Barnett
1
v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994); see Cal. Gov’t. Code
2
§§810-997.6.
3
redressing his loss through the available state remedies; it is the
4
existence of these alternate remedies that bars him from pursuing a
5
§1983 procedural due process claim. Willoughby v. Luster, 717 F.Supp.
6
1439, 1443 (D. Nev. 1989). For these reasons, Plaintiff’s allegations
7
do not support a claim under §1983 based on the loss of his personal
8
property.
It is immaterial whether or not Plaintiff succeeds in
9
10
G.
11
Plaintiff Fails to State a Claim Based on the Processing of
His Grievances.
12
“An inmate has no due process rights regarding the proper
13
handling of grievances.”
14
Corrections, 244 Fed. Appx. 106, 108 (9th Cir. 2007), cert. denied, 552
15
U.S. 1282, 128 S.Ct. 1733 (2008).1
16
850, 860 (9th Cir. 2003)(“Inmates lack a separate constitutional
17
entitlement to a specific prison grievance procedure.”); Mann v.
18
Adams, 855 F.2d 639, 640 (9th Cir. 1998)(“There is no legitimate claim
19
of entitlement to a grievance procedure.”).
20
state a claim based on the mishandling or denial of his grievances.
Wise v. Washington State Department of
See Ramirez v. Galaza, 334 F.3d
Thus, Plaintiff cannot
21
22
CONCLUSION AND ORDER
23
In an abundance of caution, Plaintiff will be afforded an
24
opportunity to amend his Complaint to attempt to overcome the defects
25
discussed above.
Accordingly, IT IS HEREBY ORDERED: (1) Plaintiff’s
26
27
28
1
The Court may cite unpublished Ninth Circuit decisions issued on
or after January 1, 2007. United States Court of Appeals for the
Ninth Circuit Rule 36-3(b); Fed.R.App.P. 32.1(a).
12
1
Complaint is dismissed with leave to amend; (2) the Court Clerk is
2
directed to send Plaintiff a civil rights form utilized by the Central
3
District of California; and (3) Plaintiff is granted 30 days from the
4
date of this Order within which to file a “First Amended Complaint.”
5
The First Amended Complaint must be complete within itself and shall
6
not incorporate by reference any portion of the original Complaint.
7
Plaintiff may not add new parties without leave of the Court. Failure
8
to comply with the requirements set forth in this Order may result in
9
a recommendation that this action be dismissed with prejudice.
10
11
DATED:
September 27, 2011
/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE
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