Madrid v. San Diego, County of et al, No. 3:2015cv01262 - Document 14 (S.D. Cal. 2015)
Court Description: ORDER Denying 13 Motion for Appointment of Counsel; Dismissing 11 First Amended Complaint; and Denying 8 Motion for Extension of Time to File First Amended Complaint as Moot. Plaintiff is granted sixty (60) days leave from the date of this O rder in which to file a Second Amended Complaint. The Clerk of Court is directed to mail a copy of a court approved civil rights complaint form. Signed by Judge Gonzalo P. Curiel on 11/16/15.(All non-registered users served via U.S. Mail Service)1983 complaint form mailed to Plaintiff. (dlg)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Mario Richard Madrid, Case No.: 3:15-CV-01262-GPC-WVG Plaintiff, 12 13 14 17 County of San Diego; Pamela Gayle Iacher; Judge Peter Deddeh; Thomas Byrne; John Gehris; Sean Tafreshi; San Diego Police Dep't; Bonnie Dumanis; San Diego Sheriff's Office; Sal Campos; Steven Moe; L. Acuzena-Martinez, 18 ORDER: v. Defendant. 15 16 (1) DENYING MOTION FOR APPOINTMENT OF COUNSEL; (2) DISMISSING FIRST AMENDED COMPLAINT; AND (3) DENYING MOTION FOR EXTENSION OF TIME TO FILE FIRST AMENDED COMPLAINT AS MOOT 19 20 21 (ECF Nos. 8, 11, 13) 22 23 24 25 26 27 28 I. Procedural History On June 4, 2015, Mario Richard Madrid (“Plaintiff”), an inmate currently incarcerated at Corcoran State Prison located in Corcoran, California filed this civil action pursuant to 42 U.S.C. § 1983, along with a Motion to Proceed In Forma Pauperis (“IFP). (ECF No. 1.) On July 15, 2015, this Court granted Plaintiff’s Motion to Proceed IFP and dismissed some of Plaintiff’s claims for failing to state a claim upon which relief could be granted 1 3:15-CV-01262-GPC-WVG 1 and for seeking money damages against immune defendants pursuant to 28 U.S.C. 2 §1915(e)(2)(B) and § 1915A. (ECF No. 5.) 3 Plaintiff was granted the option to either: (1) file a First Amended Complaint which 4 cures all the deficiencies of pleading identified in the Court’s Order; or (2) notify the 5 Court of the intent to proceed with the claims that the Court found survived the screening 6 process. (Id. at 8.) Plaintiff later filed a motion for extension of time to file a First 7 Amended Complaint (ECF No. 8 ), however, before the Court could rule on this motion, 8 Plaintiff filed his First Amended Complaint (“FAC”). (ECF No. 11.) Therefore, 9 Plaintiff’s “Motion for Extension of Time” is DENIED as moot. In addition, Plaintiff has 10 filed a “Motion to Appoint Counsel.” (ECF No. 13.) 11 In the Court’s July 15, 2015 Order, Plaintiff was informed that any “[d]efendants not 12 named and all claims not re-alleged in the [FAC] will be considered waived.” (See July 13 15, 2015 Order at 8; citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). In his 14 FAC, Plaintiff no longer names as defendants Pamela Gayle Iacher, Judge Peter Deddeh, 15 or Sean Tafreshi. (FAC at 1-3.) Therefore, these defendants are DISMISSED from this 16 action and the Clerk of Court is directed to terminate these defendants from the Court’s 17 docket. 18 II. 19 Plaintiff requests the appointment of counsel to assist him in prosecuting this civil Motion for Appointment of Counsel 20 action. The Constitution provides no right to appointment of counsel in a civil case, 21 however, unless an indigent litigant may lose his physical liberty if he loses the litigation. 22 Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 23 U.S.C. § 1915(e)(1), district courts are granted discretion to appoint counsel for indigent 24 persons. This discretion may be exercised only under “exceptional circumstances.” 25 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional 26 circumstances requires an evaluation of both the ‘likelihood of success on the merits and 27 the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 28 legal issues involved.’ Neither of these issues is dispositive and both must be viewed 2 3:15-CV-01262-GPC-WVG 1 together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 2 1331 (9th Cir. 1986)). 3 The Court DENIES Plaintiff’s request without prejudice, as neither the interests of 4 justice nor exceptional circumstances warrant appointment of counsel at this time. 5 LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. 6 III. 7 As the Court previously informed Plaintiff, the Prison Litigation Reform Act Sua Sponte Screening Pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A 8 (“PLRA”) obligates the Court to review complaints filed by all persons proceeding IFP 9 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] 10 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 11 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as 12 soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under 13 these provisions of the PLRA, the Court must sua sponte dismiss complaints, or any 14 portions thereof, which are frivolous, malicious, fail to state a claim, or which seek 15 damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; 16 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes 17 v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 18 All complaints must contain “a short and plain statement of the claim showing that the 19 pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are not 20 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 21 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 22 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 23 whether a complaint states a plausible claim for relief [is] ... a context-specific task that 24 requires the reviewing court to draw on its judicial experience and common sense.” Id. 25 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 26 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 27 28 “When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 3 3:15-CV-01262-GPC-WVG 1 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[W]hen 2 determining whether a complaint states a claim, a court must accept as true all allegations 3 of material fact and must construe those facts in the light most favorable to the 4 plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 5 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 6 However, while the court “ha[s] an obligation where the petitioner is pro se, 7 particularly in civil rights cases, to construe the pleadings liberally and to afford the 8 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 9 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not, in so 10 doing, “supply essential elements of claims that were not initially pled.” Ivey v. Board of 11 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 12 A. 42 U.S.C. § 1983 13 “Section 1983 creates a private right of action against individuals who, acting under 14 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 15 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 16 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 17 Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks and citations 18 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a 19 right secured by the Constitution and laws of the United States, and (2) that the 20 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 21 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 22 23 B. Monell Liability In his FAC, Plaintiff names the San Diego Police Department, the San Diego Sheriff’s 24 Office and the County of San Diego as Defendants. First, to the extent Plaintiff alleges 25 that the “San Diego County Sheriff’s Department,” and the “San Diego Police 26 Department” have violated his constitutional rights, his FAC fails to state a claim because 27 these entities are not “persons” subject to suit under § 1983. A local law enforcement 28 department, like the San Diego County Sheriff’s Office or the San Diego Police 4 3:15-CV-01262-GPC-WVG 1 Department, is not a proper defendant under § 1983. See Vance v. County of Santa 2 Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (“Naming a municipal department as a 3 defendant is not an appropriate means of pleading a § 1983 action against a 4 municipality.”) (citation omitted); Powell v. Cook County Jail, 814 F. Supp. 757, 758 5 (N.D. Ill. 1993) (“Section 1983 imposes liability on any ‘person’ who violates someone’s 6 constitutional rights ‘under color of law.’ Cook County Jail is not a ‘person.’). 7 While Plaintiff’s Amended Complaint again names the County of San Diego as a 8 Defendant, and the County may be considered a “person” properly subject to suit under 9 § 1983, see Monell v. Dept. of Social Servs., 436 U.S. 658, 691 (1978); Hammond v. 10 County of Madera, 859 F.2d 797, 801 (9th Cir. 1988), he has still failed to allege 11 plausible facts to show that any constitutional deprivation he may have suffered was 12 caused by the implementation or execution of “a policy statement, ordinance, regulation, 13 or decision officially adopted and promulgated” by the County of San Diego, or a “final 14 decision maker” for the municipality. Monell, 436 U.S. at 690; Bd. of Cnty. Comm’rs of 15 Bryan Cnty. Okl. v. Brown, 520 U.S. 397, 402-04 (1997). 16 To state a claim for relief based on municipal liability, Plaintiff’s Amended 17 Complaint “must contain sufficient allegations of underlying facts to give fair notice and 18 to enable the opposing party to defend itself effectively,” and those facts must “plausibly 19 suggest an entitlement to relief.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) 20 (citing Twombly, 550 U.S. 544; Iqbal, 556 U.S. 662); see also AE ex rel. Hernandez v. 21 County of Tulare, 666 F.3d 631, 640 (9th Cir. 2012) (applying Starr to municipal liability 22 claims, holding that “plausible facts supporting a policy or custom . . . could cure [ ] the 23 deficiency in [a] Monell claim.”). 24 As this Court advised Plaintiff in its July 15, 2015 Order, under 42 U.S.C. § 1983, 25 a public entity “cannot be held liable solely because it employs a tortfeasor.” See ECF 26 Doc. No. 5 (citing Monell, 436 U.S. at 691). “This means that a municipality is not liable 27 under § 1983 based on the common-law tort theory of respondeat superior.” Castro v. 28 Cnty. of Los Angeles, 797 F.3d 654, 670 (9th Cir., 2015). Here, while Plaintiff was 5 3:15-CV-01262-GPC-WVG 1 previously granted an opportunity to plead plausible facts that his “arrest was effected 2 pursuant to any municipal custom, policy or practice,” see July 15, 2015 Order (ECF 3 Doc. No. 5) at 7 (citing Hernandez, 666 F3d. at 637), his Amended Complaint offers no 4 factual content to show what policies existed, how the Court might plausibly infer that 5 any such policies caused, or were the “moving force” behind any injury he may have 6 suffered, or why any policies may arguably be described as evidencing “deliberate 7 indifference” to any constitutional right. See Clouthier v. County of Contra Costa, 591 8 F.3d 1232, 1249-50 (9th Cir. 2010); Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 9 (9th Cir. 1996); see also Iqbal, 556 U.S. at 678. “[I]t is not enough for a § 1983 plaintiff 10 merely to identify conduct properly attributable to the municipality . . . [t]he plaintiff 11 must also demonstrate that, through its deliberate conduct, the municipality was the 12 ‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal 13 action was taken with the requisite degree of culpability and must demonstrate a causal 14 link between the municipal action and the deprivation of federal rights.” Brown, 520 U.S. 15 at 404. 16 Thus, as currently pleaded, the Court finds Plaintiff’s Amended Complaint 17 contains only “unadorned, the defendant-unlawfully-harmed-me accusation[s],” and 18 “formulaic recitations of the elements of a cause of action” based on municipal liability 19 that Iqbal clearly dictates “will not do.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 20 at 555). 21 22 C. Strip Search In his FAC, Plaintiff claims that “Defendants openly utilized an unconstitutional body 23 strip search of Plaintiff.” (FAC at 8.) Plaintiff claims that he was strip searched “upon 24 exiting his cell to go to court.” (Id.) It appears that Plaintiff is claiming, although it is 25 not entirely clear, that a strip search was unnecessary because “as an [Administrative 26 Segregation (“Ad-Seg”)] inmate he was “under constant escort at all times.” (Id.) 27 28 The Fourth Amendment applies to a jail or prison’s policy of strip searches of inmates. See Bull v. City of San Francisco, et al., 595 F.3d 964, 974-75 (9th Cir. 2010) 6 3:15-CV-01262-GPC-WVG 1 (en banc). When determining whether Plaintiff has stated a Fourth Amendment claim for 2 an unreasonable search, the Court looks to whether the strip search was “reasonably 3 related to legitimate penological interests.” Id. (citing Turner v. Safley, 482 U.S. 78, 89 4 (1987). “The reasonableness of a search is determined by reference to its context.” Bull, 5 595 F.3d at 971 (citing Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988)). Plaintiff does not allege with any specificity that there were no “legitimate penological 6 7 interests.” Bull, 595 F.3d at 974. Prison officials must be accorded “wide-ranging 8 deference in the adoption and execution of policies and practices that in their judgment 9 are needed to preserve internal order and discipline and to maintain institutional 10 security.” (Id.); see also Florence v. Bd. of Chose Freeholders of Cnty. of Burlington, __ 11 U.S. __, 132 S.Ct. 1510 (2012). There are no facts from which the Court could find that 12 the strip search itself was unreasonable. The Court finds that Plaintiff’s claims do not 13 rise to the level of a strip search that was “excessive, vindictive, harassing or unrelated to 14 any legitimate penological interest.” Michenfelder, 860 F.3d at 332. Therefore, the 15 Court finds that Plaintiff has failed to state a Fourth Amendment claim based on the strip 16 searches allegedly conducted by Defendants. 17 D. Cell Searches Plaintiff claims that his constitutional rights were violated when he “endured upwards 18 19 of 50 cell searches while detained.” (FAC at 8.) However, “the Fourth Amendment’s 20 prohibition on unreasonable searches does not apply in prison cells.” Hudson v. Palmer, 21 468 U.S. 517, 526 (1984). Even if Plaintiff was a pretrial detainee at the time, which is 22 not clear from the facts alleged, “there is no basis for concluding that pretrial detainees 23 pose any lesser security risk to society than convicted inmates.” Bell v. Wolfish, 441 24 U.S. 520, 547 n. 28 (1979) (internal quotation marks omitted.); Mitchell v. Dupnik, 75 25 F.3d 517, 522 (9th Cir. 1996) (holding that pretrial detainees have no reasonable 26 expectation of privacy in cells.) Therefore, the Court finds that Plaintiff has failed to 27 allege a Fourth Amendment claim arising from the cell searches. 28 // 7 3:15-CV-01262-GPC-WVG 1 E. Heck Bar 2 Plaintiff alleges, without specificity, that all the named Defendants gathered evidence 3 in violation of his constitutional rights that was used against him in criminal proceedings. 4 Specifically, Plaintiff alleges that Defendants illegally recorded conversations while he 5 was housed in the San Diego Central Jail that were used “against Plaintiff in criminal 6 proceedings and without a Court Order.” (FAC at 9.) Plaintiff also alleges that 7 Defendants acted in a conspiracy to manufacture “fabricated evidence” to use against him 8 in his criminal proceedings. (Id. at 10.) Plaintiff alleges that he was ultimately convicted 9 with the use of this evidence. (Id.) 10 “In any § 1983 action, the first question is whether § 1983 is the appropriate avenue to 11 remedy the alleged wrong.” Haygood v. Younger, 769 F.2d 1350, 1353 (9th Cir. 1985) 12 (en banc). A prisoner in state custody simply may not use a § 1983 civil rights action to 13 challenge the “fact or duration of his confinement.” Preiser v. Rodriguez, 411 U.S. 475, 14 489 (1973). He must seek federal habeas corpus relief instead. Wilkinson v. Dotson, 544 15 U.S. 74, 78 (2005) (quoting Preiser, 411 U.S. at 489). Thus, a § 1983 action “is barred 16 (absent prior invalidation)–no matter the relief sought (damages or equitable relief), no 17 matter the target of his suit (state conduct leading to conviction or internal prison 18 proceedings)–if success in that action would necessarily demonstrate the invalidity of 19 confinement or its duration.” Wilkinson, 544 U.S. at 82. 20 In this case, Plaintiff’s claims “necessarily imply the invalidity” of his criminal 21 conviction. Heck, 512 U.S. at 487. In creating a favorable termination rule in Heck, the 22 Supreme Court relied on “the hoary principle that civil tort actions are not appropriate 23 vehicles for challenging the validity of outstanding criminal judgments.” Heck, 511 U.S. 24 at 486. This is precisely what Plaintiff attempts to accomplish here. Therefore, to satisfy 25 Heck’s “favorable termination” rule, Plaintiff must allege facts in his FAC which show 26 that the conviction which forms the basis of his claims has already been: (1) reversed on 27 direct appeal; (2) expunged by executive order; (3) declared invalid by a state tribunal 28 authorized to make such a determination; or (4) called into question by the grant of a writ 8 3:15-CV-01262-GPC-WVG 1 2 of habeas corpus. Heck, 512 U.S. at 487 (emphasis added. Plaintiff has alleged no facts sufficient to satisfy Heck. Because some of Plaintiff’s § 3 1983 claims challenge and necessarily imply the invalidity of his current term of 4 confinement, they must be dismissed without prejudice. See Trimble v. City of Santa 5 Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (finding that an action barred by Heck has not yet 6 accrued and thus, must be dismissed without prejudice so that the plaintiff may reassert 7 his § 1983 claims if he succeeds in invalidating the underlying conviction or sentence); 8 accord Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997). 9 10 F. Respondeat Superior Plaintiff also seeks to hold Defendant Dumanis liable in her supervisory capacity. 11 (See FAC at 6.) However, there is no respondeat superior liability under 42 U.S.C. 12 § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993); see also Iqbal, 556 13 U.S. at 676 (“[V]icarious liability is inapplicable to . . . § 1983 suits.”). Instead, a 14 plaintiff “must plead that each government-official defendant, through the official’s own 15 individual actions, has violated the Constitution.” Id.; see also Jones v. Community 16 Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even 17 pro se plaintiff must “allege with at least me degree of particularity overt acts which 18 defendants engaged in” in order to state a claim). “The inquiry into causation must be 19 individualized and focus on the duties and responsibilities of each individual defendant 20 whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. 21 Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 22 (1976)); see also Starr, 652 F.3d at 1207-08. 23 Supervisory prison officials may only be held liable for the allegedly unconstitutional 24 violations of a subordinate if Plaintiff sets forth allegations which show: (1) how or to 25 what extent they personally participated in or directed a subordinate’s actions, and (2) in 26 either acting or failing to act, they were an actual and proximate cause of the deprivation 27 of Plaintiff’s constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978); 28 Starr, 652 F.3d at 1207-08. As currently pleaded, however, Plaintiff’s FAC fails to 9 3:15-CV-01262-GPC-WVG 1 include any “factual content that [would] allow[] the court to draw [a] reasonable 2 inference” in support of an individualized constitutional claim against Defendant 3 Dumanis. Iqbal, 556 U.S. a 678. For this reason, Plaintiff’s FAC fails to state a claim 4 upon which section 1983 relief can be granted as to Defendant Dumanis. 5 IV. 6 Good cause appearing, IT IS HEREBY ORDERED that: 7 1. Defendants Iacher, Deddeh and Tafreshi are DISMISSED from this action. Conclusion and Order 8 See London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.1981) (all 9 causes of action alleged in an original complaint which are not alleged in an 10 11 12 13 14 amended complaint are waived). 2. Plaintiff’s Motion for Extension of Time to File a First Amended Complaint is DENIED as moot. (ECF Doc. No. 8.) 3. Plaintiff’s Motion to Appoint Counsel is DENIED without prejudice. (ECF Doc. No. 13.) 15 4. Plaintiff’s First Amended Complaint is DISMISSED for failing to state a claim 16 upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 17 § 1915A(b)(1). However, Plaintiff is GRANTED sixty (60) days leave from 18 the date of this Order in which to file a Second Amended Complaint which 19 cures all the deficiencies of pleading noted above. Plaintiff’s Amended 20 Complaint must be complete in itself without reference to his original pleading. 21 See S.D. CAL. CIVLR. 15.1. Defendants not named and all claims not re-alleged 22 in the Amended Complaint will be considered waived. See King, 814 F.2d at 23 567. 24 25 26 5. The Clerk of Court is directed to mail a copy of a court approved civil rights complaint form. Dated: November 16, 2015 27 28 10 3:15-CV-01262-GPC-WVG
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