Turner v. San Diego County et al, No. 3:2014cv01965 - Document 5 (S.D. Cal. 2015)
Court Description: ORDER granting plaintiff's 4 Supplemental Motion for Leave to Proceed in forma pauperis. Plaintiff's duplicative claims are DISMISSED as frivolous and without leave to amend. Plaintiff's remaining claims are DISMISSED without prejudi ce and with leave to amend for failing to state a claim upon which relief may be granted. Plaintiff is GRANTED thirty (30) days leave from the date this Order is filed in which to re-open this case by filing a Amended Complaint. Signed by Judge Larry Alan Burns on 3/13/15. (All non-registered users served via U.S. Mail Service)(kas)
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Turner v. San Diego County et al Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Civil No. DAVID B. TURNER, Jr., CDCR #G-30643, Booking No. 13719099, 13 Plaintiff, 14 15 18 19 ORDER: (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS (ECF Doc. No. 4) vs. 16 17 14cv1965 LAB (WVG) SAN DIEGO COUNTY; SAN DIEGO COUNTY SHERIFF; WILLIAM D. GORE; VISTA DETENTION, Defendants. 20 AND (2) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM AND AS FRIVOLOUS PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND 28 U.S.C. § 1915A(b)(1) 21 22 David B. Turner, Jr., (“Plaintiff”), a former state prisoner serving his sentence at 23 the San Diego County Sheriff’s Department Vista Detention Facility (“VDF”), in Vista, 24 California,1 initiated this civil rights action pursuant to 42 U.S.C. § 1983 on August 21, 25 2014 (ECF Doc. No. 1). 26 27 1 On September 22, 2014, Plaintiff Notice of Change of Address in Turner 28 v. San Diego Central Jail, et al., S.D. Cal.filed aCase No. 13cv1133 WQH (BGS) (Doc. Civil No. 68), indicating his anticipated release from state custody on September 29, 2014. I:\Everyone\_EFILE-PROSE\LAB\14cv1965-grt-IFP&dsm.wpd -1- 14cv1965 LAB (WVG) Dockets.Justia.com 1 I. 2 Procedural History 3 Plaintiff did not prepay the $400 civil filing fee required to commence a civil 4 action by 28 U.S.C. § 1914(a) at the time of filing; instead he filed a Motion to Proceed 5 In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2). 6 On November 7, 2014, the Court denied Plaintiff’s Motion to Proceed IFP, 7 however, because it failed to adequately describe his post-incarceration income, assets, 8 or expenses. See Nov. 7, 2014 Order (ECF Doc. No. 3) at 6-7. Plaintiff was granted 9 thirty days in which to file a supplemental IFP motion which “include[d] an affidavit 10 documenting his post-release income, assets, and expenses,” and demonstrated his current 11 inability to pay the filing fees required by 28 U.S.C. § 1914(a). Id. at 7-8. Plaintiff was 12 further cautioned that should he elect to proceed by filing a supplemental Motion to 13 Proceed IFP, his Complaint would be subject to the sua sponte screening required by 28 14 U.S.C. § 1915A, and immediately dismissed if it was found frivolous or malicious, if it 15 failed to state a claim, or if it sought damages from immune governmental defendants. 16 Id. at 6-7 & n.5. 17 Plaintiff has since filed a supplemental Motion to Proceed IFP in compliance with 18 the Court’s November 7, 2014 Order (ECF Doc. No. 4). 19 II. 20 Supplemental Motion to Proceed IFP 21 As Plaintiff knows, all parties instituting any civil action, suit, or proceeding in a 22 district court of the United States, except an application for writ of habeas corpus, must 23 pay a filing fee of $400. See 28 U.S.C. § 1914(a). An action may proceed despite a 24 plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP 25 pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 26 1999). A federal court may authorize the commencement of a civil action without 27 prepayment of fees if a person submits an affidavit, including a statement of all assets he 28 possesses, that shows he is unable to pay the required filing fee. See 28 U.S.C. § 1915(a). I:\Everyone\_EFILE-PROSE\LAB\14cv1965-grt-IFP&dsm.wpd -2- 14cv1965 LAB (WVG) 1 The determination of indigency falls within the court’s discretion. See Cal. Men’s 2 Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 U.S. 3 194 (1993). See also Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) 4 (noting that while a civil litigant need not “be absolutely destitute to enjoy the benefit of 5 the [28 U.S.C. § 1915],” his affidavit must nevertheless demonstrate to the court that he 6 cannot, because of poverty, pay or give security for the costs of suit “and still be able to 7 provide himself and dependents with the necessities of life.”) (internal quotations 8 omitted). The facts as to the affiant’s poverty must be stated with “some particularity, 9 definiteness, and certainty,” however. United States v. McQuade, 647 F.2d 938, 940 (9th 10 Cir. 1981) (citation omitted). 11 Here, the Court finds that Plaintiff has now submitted an affidavit sufficient to 12 satisfy both 28 U.S.C. § 1915(a)(1) and S.D. CAL. CIVLR 3.2. Plaintiff claims he is a 13 “poor person” and has “no way to pay the full filing fee for this case.” See Pl.’s Mot. 14 (ECF Doc. No. 4) at 1. He further claims to receive a monthly income of only $194 in 15 food stamps and $307 in cash relief, and has attached photocopies of his monthly Notice 16 of Benefits under the County of San Diego’s General Relief and CalFresh Benefits 17 Program. Plaintiff’s General Relief Notice also indicates he has been “found 18 unemployable through 02/28/2015.” Id. at 2. 19 From this supplemental accounting, the Court finds Plaintiff has insufficient 20 available funds from which to pay any filing fees at this time. See 28 U.S.C. 21 § 1915(b)(4). Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF 22 Doc. No. 4). 23 III. 24 Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A(b) 25 A. 26 As Plaintiff is also aware, the Prison Litigation Reform Act’s amendments to 28 Standard 27 U.S.C. § 1915 also require that the Court review complaints filed by all persons 28 proceeding IFP and by those, like Plaintiff, who file while “incarcerated or detained in I:\Everyone\_EFILE-PROSE\LAB\14cv1965-grt-IFP&dsm.wpd -3- 14cv1965 LAB (WVG) 1 any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of 2 criminal law or the terms or conditions of parole, probation, pretrial release, or 3 diversionary program,” “as soon as practicable after docketing.” See 28 U.S.C. 4 §§ 1915(e)(2) and 1915A(b). Under these statutes, the Court must sua sponte dismiss 5 complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, 6 or which seek damages from defendants who are immune. See 28 U.S.C. 7 §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en 8 banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 9 (discussing 28 U.S.C. § 1915A(b)). 10 Every complaint must contain “a short and plain statement of the claim showing 11 that the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations 12 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 13 by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there 15 are well-pleaded factual allegations, a court should assume their veracity, and then 16 determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. 17 “Determining whether a complaint states a plausible claim for relief [is] . . . a context18 specific task that requires the reviewing court to draw on its judicial experience and 19 common sense.” Id. The “mere possibility of misconduct” falls short of meeting this 20 plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th 21 Cir. 2009). 22 While a plaintiff’s factual allegations are taken as true, courts “are not required to 23 indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th 24 Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have 25 an obligation where the petitioner is pro se, particularly in civil rights cases, to construe 26 the pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. 27 Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 28 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements of claims that were not I:\Everyone\_EFILE-PROSE\LAB\14cv1965-grt-IFP&dsm.wpd -4- 14cv1965 LAB (WVG) 1 initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 2 (9th Cir. 1982). Even before Iqbal, “[v]ague and conclusory allegations of official 3 participation in civil rights violations” were not “sufficient to withstand a motion to 4 dismiss.” Id. 5 B. 6 In his Complaint, Plaintiff alleges the County of San Diego, its Sheriff William D. Plaintiff’s Complaint 7 Gore, and the Vista Detention Facility itself, violated his constitutional rights in 8 December 2013, January 2014, and April 2014, by exposing him to unsanitary cell 9 conditions and polluted air. See Compl. at 2-5. Plaintiff seeks injunctive relief as well 10 as $700,000 in both compensatory and punitive damages.2 Id. at 7. 11 C. 12 First, the Court finds Plaintiff’s Complaint requires sua sponte dismissal pursuant Defendant Vista Detention Facility 13 to 28 U.S.C. § 1915(e)(2)(B)(1) and § 1915A(b)(1) to the extent it seeks relief under 14 § 1983 against the “Vista Detention Facility.” See Compl. at 1, 2. 15 “To state a claim under 42 U.S.C. § 1983, the plaintiff must allege two elements: 16 (1) that a right secured by the Constitution or laws of the United States was violated; and 17 (2) that the alleged violation was committed by a person acting under color of state law.” 18 Campbell v. Washington Dep’t of Soc. Servs., 671 F.3d 837, 842 n.5 (9th Cir. 2011) 19 (citing Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). A county jail 20 or detention facility (like VDF) is not a proper defendant under § 1983. See Vance v. 21 County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (“Naming a municipal 22 department as a defendant is not an appropriate means of pleading a § 1983 action against 23 24 25 26 27 28 2 Plaintiff’s release from custody has rendered moot his claims for injunctive relief related to conditions at VDF. See Preiser v. Newkirk, 422 U.S. 395 (1975) (inmate’s request for declaratory judgment rendered moot by his transfer to another prison). When an inmate has been released from custody or transferred to another prison and there is no reasonable expectation or demonstrated probability that he will again be subjected to the conditions from which he seeks injunctive relief, his claim for injunctive relief should be dismissed as moot. See Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995). The possibility that an inmate might be transferred back to the prison where the injury occurred is too speculative to overcome mootness. Id.; see also Wiggins v. Rushen, 760 F.2d 1009 (9th Cir. 1985). I:\Everyone\_EFILE-PROSE\LAB\14cv1965-grt-IFP&dsm.wpd -5- 14cv1965 LAB (WVG) 1 a municipality.”) (citation omitted); Powell v. Cook County Jail, 814 F. Supp. 757, 758 2 (N.D. Ill. 1993) (“Section 1983 imposes liability on any ‘person’ who violates someone’s 3 constitutional rights ‘under color of law.’ Cook County Jail is not a ‘person.’). 4 Therefore, Plaintiff’s Complaint fails to state a claim upon which § 1983 relief can 5 be granted against VDF and any purported claims against VDF must be dismissed 6 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 191A(b)(1). 7 D. 8 Second, while Plaintiff’s Complaint also names the County of San Diego as a Municipal Liability 9 Defendant, and the County may be considered a “person” properly subject to suit under 10 § 1983, see Monell v. Dept. of Social Services, 436 U.S. 658, 691 (1978); Hammond v. 11 County of Madera, 859 F.2d 797, 801 (9th Cir. 1988), the County may be held liable only 12 where the Plaintiff alleges facts to show that a constitutional deprivation was caused by 13 the implementation or execution of “a policy statement, ordinance, regulation, or decision 14 officially adopted and promulgated” by the municipality, or a “final decision maker” for 15 the municipality. Monell, 436 U.S. at 690; Board of the County Comm’rs v. Brown, 520 16 U.S. 397, 402-04 (1997); Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995). In other 17 words, “respondeat superior and vicarious liability are not cognizable theories of recovery 18 against a municipality.” Miranda v. Clark County, Nevada, 279 F.3d 1102, 1109-10 (9th 19 Cir. 2002). 20 Plaintiff’s Complaint seeks to hold the County liable based on claims that 21 unidentified “local prison officials” at VDF failed to provide “humane conditions of 22 confinement.” See Compl. at 3. However, “a municipality cannot be held liable solely 23 because it employs a tortfeasor.” Monell, 436 U.S. at 691; Navarro, 72 F.3d at 714. 24 Instead, to allege a claim of municipal liability, Plaintiff must include in his pleading 25 enough “factual content” to support a reasonable inference to show that: (1) he was 26 deprived of a constitutional right; (2) the county had a policy; (3) the policy amounted 27 to deliberate indifference to his constitutional right; and (4) the policy was the “moving 28 force behind the constitutional violation.” Van Ort v. Estate of Stanewich, 92 F.3d 831, I:\Everyone\_EFILE-PROSE\LAB\14cv1965-grt-IFP&dsm.wpd -6- 14cv1965 LAB (WVG) 1 835 (9th Cir. 1996); see also Iqbal, 556 U.S. at 678; Trevino v. Gates, 99 F.3d 911, 918 2 (9th Cir. 1996). 3 As currently pleaded, however, Plaintiff’s Complaint fails to state a claim under 4 28 U.S.C. §§ 1915(e)(2) and § 1915A(b) because he has failed to allege any facts which 5 “might plausibly suggest” that he was subject to unsanitary or unsafe conditions pursuant 6 to any municipal custom, policy, or practice implemented or promulgated with deliberate 7 indifference to his constitutional rights, or that such a policy was the “moving force”or 8 cause of his injury. See Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 9 2012) (applying Iqbal’s pleading standards to Monell claims); Brown, 520 U.S. at 404 10 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable 11 to the municipality . . . [t]he plaintiff must also demonstrate that, through its deliberate 12 conduct, the municipality was the ‘moving force’ behind the injury alleged. That is, a 13 plaintiff must show that the municipal action was taken with the requisite degree of 14 culpability and must demonstrate a causal link between the municipal action and the 15 deprivation of federal rights.”). 16 E. 17 Third, as to the only individual person currently named as a Defendant, William Vicarious Liability 18 D. Gore, the San Diego County Sheriff, Plaintiff’s Complaint also fails to state a claim 19 upon which § 1983 relief can be granted, because it contains no individualized allegations 20 of wrongdoing by Sheriff Gore, and instead only describes him as the “local prison 21 official” presumably responsible for failing to provide him with “humane conditions.” 22 See Compl. at 2, 3. 23 “Because vicarious liability is inapplicable to . . . § 1983 suits,” Plaintiff “must 24 plead that each Government-official defendant, though the official’s own individual 25 actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Plaintiff’s Complaint, 26 however, contains no further “factual enhancement” to describe what Gore did, or failed 27 to do with regard to his overflowing toilet on January 21, 2014, or his alleged exposure 28 to “toxic fumes” on April 6, 2014. See Compl. at 3, 5; Estate of Brooks v. United States, I:\Everyone\_EFILE-PROSE\LAB\14cv1965-grt-IFP&dsm.wpd -7- 14cv1965 LAB (WVG) 1 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required element of a § 2 1983 claim.”). “The inquiry into causation must be individualized and focus on the duties 3 and responsibilities of each individual defendant whose acts or omissions are alleged to 4 have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 5 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)); Berg v. Kincheloe, 794 F.2d 6 457, 460 (9th Cir. 1986). 7 A person deprives another “of a constitutional right, within the meaning of section 8 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to 9 perform an act which he is legally required to do that causes the deprivation of which [the 10 plaintiff complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). There is no 11 respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 12 1437-38 (9th Cir. 1993). 13 Thus, without some specific “factual content” that might allow the Court to “draw 14 the reasonable inference” that Sheriff Gore may be held personally liable for any 15 unconstitutional conduct directed at Plaintiff, the Court finds his Complaint, as currently 16 pleaded, contains only the type of “defendant-unlawfully-harmed-me accusations,” which 17 Iqbal makes clear, fail to “state a claim to relief that is plausible on its face.” Iqbal, 556 18 U.S. at 568. 19 F. 20 Finally, the Court finds that Plaintiff’s claims of being exposed to “polluted” air Duplicative Claims 21 that “c[ame] out of the vents” while he was housed not at VDF, but rather, at George 22 Bailey Detention Facility on December 23, 2013, see Compl. at 4, must be dismissed as 23 frivolous pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b)(1). These allegations are 24 simply duplicative of claims he has previously alleged in a separate civil rights case 25 currently pending before Judge Sammartino. See Turner v. County of San Diego, et al., 26 S.D. Cal. Civil Case No. 13cv2729 JLS (PCL) (ECF Doc. No. 4), “Amend. Compl.” at 27 1, 3. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (court “‘may take notice 28 of proceedings in other courts, both within and without the federal judicial system, if I:\Everyone\_EFILE-PROSE\LAB\14cv1965-grt-IFP&dsm.wpd -8- 14cv1965 LAB (WVG) 1 those proceedings have a direct relation to matters at issue.’”) (quoting Bennett v. 2 Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). A prisoner’s complaint is 3 considered frivolous under 28 U.S.C. § 1915A(b)(1) if it “merely repeats pending or 4 previously litigated claims.” Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 5 1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal quotations 6 omitted). 7 IV. 8 Conclusion and Order 9 Good cause appearing, IT IS HEREBY ORDERED that: 10 1. Plaintiff’s Supplemental Motion to Proceed IFP pursuant to 28 U.S.C. 11 § 1915(a) (ECF Doc. No. 4) is GRANTED. 12 2. Plaintiff’s duplicative claims are DISMISSED as frivolous pursuant to 28 13 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) and without leave to amend. See Lopez v. 14 Smith, 203 F.3d 1122, 1127 n.8 (9th Cir. 2000) (en banc) (“When a case may be classified 15 as frivolous or malicious, there is, by definition, no merit to the underlying action and so 16 no reason to grant leave to amend.”). 17 3. Plaintiff’s remaining claims are DISMISSED without prejudice and with 18 leave to amend for failing to state a claim upon which relief may be granted pursuant to 19 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). Plaintiff is GRANTED thirty (30) 20 days leave from the date this Order is filed in which to re-open this case by filing a 21 Amended Complaint which cures the deficiencies of pleading described above. 22 Plaintiff’s Amended Complaint must be complete by itself without reference to his 23 original complaint. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 24 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes 25 the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that 26 claims dismissed with leave to amend which are not re-alleged in an amended pleading 27 may be “considered waived if not repled.”). 28 / / / I:\Everyone\_EFILE-PROSE\LAB\14cv1965-grt-IFP&dsm.wpd -9- 14cv1965 LAB (WVG) 1 Should Plaintiff elect not to proceed by filing a Amended Complaint within the 2 time provided, the Court will enter a final Order of dismissal of this civil action as 3 frivolous, for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii) and 4 § 1915A(b)(1), and based on Plaintiff’s failure to prosecute in compliance with a Court 5 Order requiring amendment. 6 7 DATED: March 13, 2015 8 9 HONORABLE LARRY ALAN BURNS United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I:\Everyone\_EFILE-PROSE\LAB\14cv1965-grt-IFP&dsm.wpd -10- 14cv1965 LAB (WVG)
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