(PC) Knanishu v. McGinness et al, No. 2:2010cv00005 - Document 50 (E.D. Cal. 2010)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 11/15/10 ORDERING plaintiff's motion for extension of time 45 is denied. Plaintiff's motion to amend 46 is granted. Plaintiff's motion for leave to file a second amended complaint 49 is granted. Also, RECOMMENDING that defendant Jacoby's motion to dismiss be denied; and this action be dismissed without leave to amend. MOTION to DISMISS 47 referred to Judge John A. Mendez. Objections due within 20 days. (Plummer, M)
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(PC) Knanishu v. McGinness et al Doc. 50 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 KENNETH KNANISHU, 10 Plaintiff, 11 12 13 No. 2:10-cv-0005 JAM JFM (PC) vs. SACRAMENTO SHERIFF’S DEPT., et al., Defendants. / 14 ORDER AND FINDINGS & RECOMMENDATIONS Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 15 16 42 U.S.C. § 1983. Plaintiff is presently housed at Salinas Valley State Prison in Soledad, 17 California. Before the court are plaintiff’s motion for an extension of time; motion to amend; 18 and “motion for leave to file a second amended complaint”1. Also before the court is defendant 19 Jacoby’s motion to dismiss plaintiff’s second amended complaint. PROCEDURAL HISTORY 20 21 On December 31, 2009, plaintiff filed a complaint against defendants Sheriff John 22 McGinness, Lt. Brelji, Deputy Jacoby and Sacramento County Sheriff’s Department. On July 2, 23 2010, defendants filed a motion to dismiss. On August 5, 2010, plaintiff filed an opposition. 24 ///// 25 1 26 Plaintiff’s request to file a second amended complaint is erroneous in that plaintiff in fact seeks leave to file a third amended complaint. 1 Dockets.Justia.com 1 The undersigned filed findings and recommendations on August 25, 2010, which 2 were adopted in their entirety by the Honorable John A. Mendez on September 22, 2010 and 3 plaintiff was granted leave to file an amended complaint. Prior to their adoption, however, 4 plaintiff filed a motion for leave to file an amended complaint alleging deliberate indifference 5 against defendant Jacoby. Also prior to their adoption, Jacoby filed a motion to dismiss 6 plaintiff’s amended complaint. On October 18, 2010, the undersigned dismissed plaintiff’s 7 amended complaint for failure to state a claim and granted plaintiff leave to file a second 8 amended complaint. 9 On October 20, 2010, plaintiff filed a motion to amend and a copy of a proposed 10 second amended complaint. On October 28, 2010, defendant filed a motion to dismiss. On 11 November 5, 2010, plaintiff filed a “motion for leave to file a second amended complaint.” The 12 complaint attached to the motion is plaintiff’s third amended complaint. 13 14 SCREENING REQUIREMENT The court is required to screen complaints brought by prisoners seeking relief 15 against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. 16 § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised 17 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may 18 be granted, or that seek monetary relief from a defendant who is immune from such relief. See 19 28 U.S.C. § 1915A(b)(1) & (2). 20 A claim is legally frivolous when it lacks an arguable basis either in law or in 21 fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 22 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based 23 on an indisputably meritless legal theory or where the factual contentions are clearly baseless. 24 Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however 25 inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 26 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. 2 Rule 8(a) (2) of the Federal Rules of Civil Procedure “requires only ‘a short and 1 2 plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 3 defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atlantic 4 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 5 (1957)). However, in order to survive dismissal for failure to state a claim a complaint must 6 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 7 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 8 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 9 allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 10 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and 11 resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 12 13 14 DISCUSSION 1. Second Amended Complaint In the second amended complaint, plaintiff, a protective custody inmate, alleges 15 that, while he was housed at Sacramento County Jail, defendant Deputy Jacoby, the control 16 booth officer, opened plaintiff’s cell door and allowed an inmate named Caudle into the cell. 17 Plaintiff claims Caudle beat him, causing numerous injuries. He further claims that despite calls 18 for help from inmates in surrounding cells, aid did not arrive in a timely manner. In the second 19 amended complaint, plaintiff seeks to add two individual defendants: Deputy H. Covington and 20 Lieutenant Fitch. The only charging allegation as to Covington is that he was on duty with 21 Jacoby on the morning of the attack. As to Fitch, plaintiff states only that he was the commander 22 at the main jail. Plaintiff also brings forth a claim against Sacramento County as the employing 23 agency of the three individual defendants. 24 The allegations of plaintiff’s second amended complaint remain so conclusory 25 that the court determines that plaintiff again fails to state a claim for relief. Although the Federal 26 Rules adopt a flexible pleading policy, a complaint must give fair notice to the defendants and 3 1 must allege facts that support the elements of the claim plainly and succinctly. Jones v. 2 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). In this regard, plaintiff must 3 allege, with at least some degree of particularity, overt acts which the defendants engaged in that 4 support his claims. Id. Other than conclusory allegations, plaintiff again fails to state a claim 5 against Jacoby. Plaintiff’s claim similarly fails as to Covington. 6 Further, supervisory personnel are generally not liable under § 1983 for the 7 actions of their employees under a theory of respondeat superior and, therefore, when a named 8 defendant holds a supervisory position, the causal link between him and the claimed 9 constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 10 (9th Cir.1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 11 (1979). A supervisory defendant must either: personally participate in the alleged deprivation of 12 constitutional rights; know of the violations and fail to act to prevent them; or promulgate or 13 implement a policy “so deficient that the policy itself is a repudiation of constitutional rights” 14 and is “the moving force of the constitutional violation.” Hansen v. Black, 885 F.2d 642, 646 15 (9th Cir. 1989); Taylor v. List, 880 F .2d 1040, 1045 (9th Cir. 1989). Here, plaintiff fails to state 16 any facts as to Fitch. Lastly, as to defendant Sacramento County, “[a] municipality may be held liable 17 18 under a claim brought under § 1983 only when the municipality inflicts an injury, and it may not 19 be held liable under a respondeat superior theory.” Gibson v. County of Washoe, 290 F.3d 1175, 20 1187 (9th Cir. 2002) (citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 21 694 (1978)). Plaintiff’s second amended complaint fails to state any facts as to Sacramento 22 County. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 23 24 8(a), the second amended complaint must be dismissed. 25 ///// 26 ///// 4 1 2. Third Amended Complaint 2 In the third amended complaint, plaintiff states substantially identical facts as in 3 the second amended complaint. Again, plaintiff’s allegations fail as to all defendants. There are 4 simply no facts upon which this court may make a finding that any of the defendants knew of 5 and disregarded an excessive risk to plaintiff’s safety when the cell door was opened for Caudle. 6 Plaintiff also fails to state a claim for deliberate indifference for the alleged delay in providing 7 medical care. 8 Once again, the court has found that plaintiff’s allegations are insufficient to state 9 a claim on which relief may be granted for violation of plaintiff’s federal civil rights. Moreover, 10 it is now is clear from plaintiff’s latest ineffectual attempt that plaintiff simply is incapable of 11 curing by amendment the deficiencies identified and discussed in the court’s prior dismissal 12 orders. Consequently, there is no need for the court to prolong this litigation by permitting 13 further amendment. See, e.g., Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 14 2002); In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 991 (9th Cir. 1999). 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Plaintiff’s motion for extension of time is denied; 17 2. Plaintiff’s motion to amend is granted; 18 3. Plaintiff’s “motion for leave to file a second amended complaint” is granted; 19 and 20 IT IS HEREBY RECOMMENDED that 21 4. Defendant Jacoby’s motion to dismiss be denied; and 22 5. This action be dismissed without leave to amend. 23 These findings and recommendations are submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 25 days after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 5 1 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised 2 that failure to file objections within the specified time may waive the right to appeal the District 3 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 DATED: November 15, 2010. 5 6 7 8 /014;knan0005.mtd3 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6
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