(PC) Risenhoover v. Tulare County Sheriff's Dept., et al., No. 1:2017cv01696 - Document 17 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss for Failure/Inability to State a Claim signed by Magistrate Judge Jennifer L. Thurston on 11/15/2018. Referred to Judge Lawrence J. O'Neill. Objections to F&R due within Twenty-One (21) Days. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL ALLEN RISENHOOVER, 12 13 14 15 Plaintiff, v. TULARE COUNTY SHERIFF’S DEPARTMENT, et al., FINDINGS AND RECOMMENDATION TO DISMISS FOR FAILURE/INABILITY TO STATE A CLAIM (Doc. 10) 21-DAY DEADLINE Defendants. 16 17 Case No. 1:17-cv-01696-LJO-JLT (PC) Plaintiff alleges that while he was restrained in a hospital bed after a suicide attempt, 18 Deputy Davalos lifted his hospital gown and took pictures of Plaintiff’s upper legs and genitals 19 and thereafter sat by Plaintiff’s bedside and “texted the photos.” The Court screened the First 20 Amended Complaint and dismissed it with leave to amend. Despite the Court providing him the 21 applicable standards, Plaintiff fails to state any cognizable claims in the Second Amended 22 Complaint. It suffers from the same defects as identified by the Court in the First Amended 23 Complaint and Plaintiff’s factual allegations have become sparse. Thus, further leave to amend 24 would be futile and this action should be DISMISSED. 25 B. Screening Requirement 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 1 1 frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary 2 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. 3 § 1915(e)(2)(B)(i)-(iii). A complaint will be dismissed if it lacks a cognizable legal theory or fails 4 to allege sufficient facts under a cognizable legal theory. See Balistreri v. Pacifica Police 5 Department, 901 F.2d 696, 699 (9th Cir. 1990). Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or 6 7 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 8 Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source 9 of substantive rights, but merely provides a method for vindicating federal rights conferred 10 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 11 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a 12 right secured by the Constitution or laws of the United States was violated and (2) that the alleged 13 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 14 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). A 15 complaint will be dismissed if it lacks a cognizable legal theory or fails to allege sufficient facts 16 under a cognizable legal theory. See Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 17 (9th Cir. 1990). “Notwithstanding any filing fee, or any portion thereof, that may have been paid, 18 the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . 19 fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 20 B. Summary of the Second Amended Complaint 21 Though currently incarcerated at Salinas Valley State Prison, Plaintiff’s complaint is 22 based on events that occurred in April of 2014, while he was in the custody of the Tulare County 23 Sheriff.1 Plaintiff names the Tulare County Sheriff’s Department (TCSD) and Deputy Davalos as 24 defendants and seeks monetary damages. 25 26 27 28 1 Though not specifically stated, it appears that Plaintiff was a state inmate when the events at issue occurred as the CDCR Inmate Locator reflects that he was admitted into CDCR custody on April 5, 2013. The Court may take judicial notice of undisputed matters of public record. Fed.Rules Evid.Rule 201, 28 U.S.C.A.; Harris v. County of Orange, 682 F.3d 1126, 1131-32 (2012). Thus, though Plaintiff was in the Sheriff’s custody at the time, the Court evaluates the Plaintiff’s allegations under the standards for prisoners and not for pretrial detainees. 2 1 Plaintiff alleges that in April of 2014, he was hospitalized at Kaweah Delta Hospital in 2 Visalia while in the custody of the TCSD. Plaintiff was admitted to the hospital and placed under 3 mental health observation after he cut his neck in a suicide attempt while in the back of a TCSD 4 vehicle during transport for a court appearance. TCSD detectives interviewed Plaintiff and took 5 pictures of his wounds for their official records. Deputy Davalos was then assigned to watch 6 Plaintiff that night in the hospital. Plaintiff knew Deputy Davalos and the other deputies because 7 he used to be a deputy in the same department -- from 2003 to 2012. 8 Plaintiff alleges that Deputy Davalos lifted Plaintiff’s hospital gown and, with Davalos’ 9 personal cell phone, took pictures of Plaintiff’s upper thigh and groin area. Deputy Davalos knew 10 the detectives had already taken photos and department policy does not allow personal cell phone 11 usage on duty. Deputy Davalos then sat in a chair next to Plaintiff’s bed and began texting out 12 the pictures. Plaintiff seeks to proceed against Deputy Davalos for violation of his rights under 13 the Equal Protection Clause and against TCSD for violation of his rights to privacy under the 14 Fourteenth Amendment. 15 Despite the Court previously providing the applicable standards for the claims, and 16 informing him of the deficiencies in his factual allegations, the Second Amended Complaint 17 suffers from the same defects as the First Amended Complaint. For the reasons discussed in 18 detail below, Plaintiff’s claims are not cognizable. Thus, this action should be dismissed. 19 20 C. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 21 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 22 exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 23 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain 24 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a). 25 “Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and 26 the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. 27 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 28 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 3 1 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 2 Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is 3 plausible on its face.’” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual 4 allegations are accepted as true, but legal conclusions are not. Iqbal, at 678; see also Moss v. U.S. 5 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 6 Though “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. 7 Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed 8 liberally and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 9 2010). However, “the liberal pleading standard . . . applies only to a plaintiff’s factual 10 allegations,” Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil 11 rights complaint may not supply essential elements of the claim that were not initially pled,” 12 Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of 13 Regents, 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted 14 inferences, Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 15 marks and citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 16 sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of 17 satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 18 19 D. Plaintiff’s Claims 1. Deputy Davalos - Equal Protection 20 In Claim 1, Plaintiff alleges that Deputy Davalos engaged in the acts alleged in 21 discrimination of Plaintiff’s mental illness. The Equal Protection Clause requires that persons 22 who are similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 23 U.S. 432, 439(1985); Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th 24 Cir. 2013); Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 25 878, 891 (9th Cir. 2008). To state a claim, Plaintiff must show that Defendants intentionally 26 discriminated against him based on his membership in a protected class. Hartmann, 707 F.3d at 27 1123; Furnace, 705 F.3d at 1030; Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); 28 Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005); Lee v. City of Los 4 1 Angeles, 250 F.3d 668, 686 (9th Cir. 2001). 2 Cognitive impairment is a protected class. See City of Cleburne, Tex. V. Cleburne Living 3 Center, 473 U.S. 432, 443 (1985) (noting that, in compliance with the Equal Protection Clause, 4 the Federal Government has “outlawed discrimination against the mentally retarded in federally 5 funded programs, see § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, but it has also 6 provided the retarded with the right to receive ‘appropriate treatment, services, and habilitation’ 7 in a setting that is ‘least restrictive of [their] personal liberty.’ Developmental Disabilities 8 Assistance and Bill of Rights Act, 42 U.S.C. §§ 6010(1), (2).”) Further, to establish a violation of 9 the Equal Protection Clause, the prisoner must show discriminatory intent by prison personnel. 10 See Washington v. Davis, 426 U.S. 229, 239-240 (1976); Serrano, 345 F.3d at 1081-82; Freeman 11 v. Arpio, 125 F.3d 732, 737 (9th Cir. 1997). 12 Plaintiff does not state a cognizable Equal Protection claim. Though Plaintiff’s allegations 13 show his protected class membership, he does not show discriminatory intent by Deputy Davalos. 14 Plaintiff’s allegations that he “was discriminated against because he was mentally impaired” is 15 nothing more than a threadbare recital of the elements of an equal protection claim which does 16 not suffice. Iqbal, 556 U.S. at 678. Such “‘bare assertions . . . amount[ing] to nothing more than 17 a “formulaic recitation of the elements” of a constitutional discrimination claim, “for the purposes 18 of ruling on a motion to dismiss [and thus also for screening purposes], are not entitled to an 19 assumption of truth.” Moss 572 F.3d at 969 (quoting Iqbal, 556 U.S. at 1951 (quoting Twombly, 20 550 U.S. at 555)). “Such allegations are not to be discounted because they are ‘unrealistic or 21 nonsensical,’ but rather because they do nothing more than state a legal conclusion, even if that 22 conclusion is cast in the form of a factual allegation.” Id. The clear implication of Plaintiff’s allegations in this action is that Deputy Davalos took 23 24 the embarrassing photographs of Plaintiff and sent them around to other deputies whom they both 25 knew because Plaintiff used to be a sheriff’s deputy and work with all of them -- i.e. to let 26 everyone know how far Plaintiff had fallen from grace. Though mean-spirited, such actions do 27 not violate the Equal Protection Clause. 28 /// 5 1 2 2. TCSD - Right to Privacy In Claim 2, Plaintiff alleges that the TCSD violated his right to privacy under the 3 Fourteenth Amendment: (1) by not ensuring adherence to their policy on personal cell phone 4 usage; (2) by not ascertaining who viewed the photos of Plaintiff; (3) by not taking “adequate 5 steps in minimizing the gratuitous invasion of Plaintiff’s privacy”; and (4) by not taking any steps 6 to alleviate Plaintiff’s fears and emotional distress by failing to inform him of the photos 7 distribution or results of any investigation into the matter. (Doc. 15, pp. 4-5.) 8 9 As stated in the prior screening order, the privacy rights of prisoners are “severely curtailed” by their confinement. United States v. Van Poyck, 77 F.3d 285, 291 (9th Cir. 1996). 10 Nevertheless, “[i]t is clearly established that the Fourteenth Amendment protects a sphere of 11 privacy, and the most ‘basic subject of privacy [is] the naked body.’ ” Hydrick v. Hunter, 500 12 F.3d 978, 1000 (9th Cir. 2007) (quoting Grummett v. Rushen, 779 F.2d 491, 494 (9th Cir. 1985)). 13 “While the circumstances of institutional life demand that privacy be limited, it is clearly 14 established that gratuitous invasions of privacy violate the Fourteenth Amendment.” Id. 15 However, “this calls for a highly factual inquiry.” Id. Factors the Court has considered include: 16 (1) the gender of those prison officials who viewed inmates; (2) the angle and duration of 17 viewing; and (3) the steps taken to minimize invasions of privacy.” Id., citing Grummett, 779 18 F.2d at 494-95. 19 For example, in Grummett, the Court considered a claim by male inmates that their right 20 to privacy was violated by female officers viewing them while dressing, showering, being strip 21 searched, or using the toilet. Id., 779 F.2d at 492. The Ninth Circuit assumed “the interest in not 22 being viewed naked by members of the opposite sex is protected by the right of privacy.” Id., 779 23 F.2d at 494. Unfortunately, the prison context diminishes the expectation of privacy which means 24 that any privacy claim that Plaintiff might intend to assert based on Deputy Davalos’ conduct is 25 not cognizable since they are the same gender. Further, Plaintiff’s allegations are not cognizable 26 against TCSD for municipal liability. 27 Although 42 U.S.C. § 1983 imposes liability only on “persons” who, under color of law, 28 deprive others of their constitutional rights, the Supreme Court has construed the term “persons” 6 1 to include municipalities such as Tulare County and its Sheriff Department. See Monell v. Dep’t 2 of Soc. Servs., 436 U.S. 658, 690-91 (1978). However, a municipality is responsible for a 3 constitutional violation only when an “action [taken] pursuant to [an] official municipal policy of 4 some nature” caused the violation. Id. at 691. This means that a municipality is not liable under 5 § 1983 based on the common-law tort theory of respondeat superior. Id. 6 The offending municipal policy in question may be either formal or informal. City of St. 7 Louis v. Praprotnik, 485 U.S. 112, 131 (1988) (plurality opinion) (acknowledging that a plaintiff 8 could show that “a municipality’s actual policies were different from the ones that had been 9 announced”); id. at 138 (Brennan, J., concurring) (stating that municipal policies may be formal 10 or informal). A formal policy exists when “a deliberate choice to follow a course of action is 11 made from among various alternatives by the official or officials responsible for establishing final 12 policy with respect to the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 13 469, 483 (1986) (plurality opinion). When pursuing a Monell claim stemming from a formal 14 policy, a plaintiff must allege and ultimately prove that the municipality “acted with the state of 15 mind required to prove the underlying violation.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 16 1143-44 (9th Cir. 2012) (explaining that the plaintiff must prove that the municipal defendants 17 acted with deliberate indifference, the same standard that a plaintiff has to establish in a § 1983 18 claim against an individual defendant). 19 An informal policy, on the other hand, exists when a plaintiff can prove the existence of a 20 widespread practice that, although not authorized by an ordinance or an express municipal policy, 21 is “so permanent and well settled as to constitute a custom or usage with the force of law.” 22 Praprotnik, 485 U.S. at 127. Such a practice, however, cannot ordinarily be established by a 23 single constitutional deprivation, a random act, or an isolated event. Christie v. Iopa, 176 F.3d 24 1231, 1235 (9th Cir. 1999). Instead, a plaintiff must show a pattern of similar incidents in order 25 for the factfinder to conclude that the alleged informal policy was “so permanent and well settled” 26 as to carry the force of law. See Praprotnik, 485 U.S. at 127. Plaintiff fails to state any fact upon 27 which to find that a policy, formal or informal, existed within the TCSD that condoned Deputy 28 Davalos’ conduct, or that condoned minimization of his allegations against Deputy Davalos by 7 1 the investigating detective. Further, for the reasons discussed in the preceding section, Deputy 2 Davalos’ actions did not violate Plaintiff’s federal rights upon which to base a policy claim 3 against TCSD. 4 II. 5 CONCLUSION Plaintiff’s Second Amended Complaint fails to state any cognizable claims upon which to 6 proceed in this Court. Given that the Second Amended Complaint suffers from the same defects 7 as the First Amended Complaint, it appears futile to allow further amendment and Plaintiff need 8 not be granted leave to amend. 9 10 11 Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). Accordingly, the Court RECOMMENDS that this entire action be dismissed based on Plaintiff’s failure to state a cognizable claim. These Findings and Recommendations will be submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 21 13 days after being served with these Findings and Recommendations, Plaintiff may file written 14 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 15 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 16 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 17 839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 20 21 IT IS SO ORDERED. Dated: November 15, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 8