(PC) Turner v. Guibord ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY DEWAYNE LEE TURNER, No. 2:19-cv-0416 DB P 12 Plaintiff, 13 v. ORDER 14 SACRAMENTO CITY FIRE DEPT., et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with this civil rights action pursuant to 42 18 U.S.C. § 1983. Together with his complaint, he has filed an application to proceed in forma 19 pauperis. 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 21 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 I. Screening Requirements 5 “[T]he court shall dismiss the case at any time if the court determines that ... the action or 6 appeal (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or 7 (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 8 1915(e)(2)(B)(i)–(iii). This provision applies to all actions filed in forma pauperis, whether or not 9 the plaintiff is incarcerated. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000); see also 10 Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam). 11 II. Pleading Standard 12 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or 13 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 14 Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of 15 substantive rights, but merely provides a method for vindicating federal rights conferred 16 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 17 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a 18 right secured by the Constitution or laws of the United States was violated and (2) that the alleged 19 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 20 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). 21 A complaint must contain “a short and plain statement of the claim showing that the 22 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 23 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 24 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 25 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 26 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial 27 plausibility demands more than the mere possibility that a defendant committed misconduct and, 28 while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78. 1 III. Plaintiff’s Allegations 2 As best as the Court can determine, plaintiff’s claims arose prior to his incarceration. He 3 brings this action for damages and injunctive relief against the “Sacramento City Police Dispatch 4 Unit” of the “Sacramento City Police Officers,” “fire men” of the “Sacramento [City and/or 5 County] Fire Department,” and “ambulance paramedics” of “Sacramento Ambulance 6 Transportation.” 7 Plaintiff’s allegations may be fairly summarized as follows: 8 Plaintiff’s first claim is for “false imprisonment.” In support of this claim, plaintiff alleges 9 that, on an unspecified date, he was arrested for driving under the influence (“DUI”) even though 10 he was not driving his car or even inside of a parked car at the time. The arresting officers 11 dispatched the fire department and paramedics, who took plaintiff to Kaiser Hospital. Plaintiff 12 remained at the hospital for one hour before he was discharged. Several months later, plaintiff 13 went to court for a misdemeanor and, there, first learned of the DUI charge. Because of this 14 charge, his license was suspended, and he was “wrongfully sentenced.” 15 Plaintiff’s second claim is for “victim of false identity.” He alleges that he did not enable 16 or abet “a police officer to have a label of false identity upon my arrest or criminal record. It’s 17 because I was incarcerated at the time of the identity theif [sic]. I’m a victim of false identity.” 18 Plaintiff’s third and final claim is for “disciplinary proceedings.” He claims that he had a 19 “2620 P.C. Proceedings Hearing in the Sacramento courthouse” to determine if he was a danger 20 to himself or others. Plaintiff was not released to the community “[due] to the attorney only and 21 by his words I was sent to the hospital of mental health restraints.” 22 IV. Discussion 23 A. “Short and Plain Statement of the Claim” 24 Rule 8 of the Federal Rules of Civil Procedure mandates that a complaint include a “short 25 and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), and that each allegation “be simple, 26 concise, and direct.” Fed. R. Civ. P. 8(d)(1). A complaint that is so confusing that its “'true 27 substance, if any, is well disguised’” may be dismissed for failure to satisfy Rule 8. Hearns v. San 28 Bernardino Police Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (quoting Gillibeau v. City of 1 Richmond, 417 F.2d 426, 431 (9th Cir. 1969)); see also McHenry v. Renne, 84 F.3d 1172, 1180 2 (9th Cir. 1996) (“Something labeled a complaint but written ... prolix in evidentiary detail, yet 3 without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails 4 to perform the essential functions of a complaint.”); Nevijel v. N. Coast Life Ins. Co., 651 F.2d 5 671, 673-74 (9th Cir. 1981) (affirming a dismissal with prejudice for failure to comply with Rules 6 8(a) and 8(e), finding that both the original complaint and an amended complaint were “verbose, 7 confusing and conclusory”). 8 Plaintiff’s complaint does not comply with the standards of Rule 8 in that it fails to clearly 9 articulate the facts giving rise to any claim. Because his allegations are vague and conclusory, the 10 complaint is subject to dismissal. 11 B. Linkage 12 Related to the foregoing, under § 1983, the plaintiff must demonstrate that each named 13 defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77 14 Simmons v. Navajo County, 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 15 588 F.3d 1218, 1235 (9th Cir. 2009). Liability may not be imposed on supervisory personnel 16 under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77. Supervisory personnel may 17 only be held liable if they “participated in or directed the violations, or knew of the violations and 18 failed to act to prevent them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. 19 Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012). 20 Plaintiff names several individual defendants—albeit not by name (e.g., “fire men”)—but 21 he has not alleged any facts indicating that the individual defendants personally participated in the 22 alleged deprivation of constitutional rights; knew of the violations and failed to act to prevent 23 them; or promulgated or “implemented a policy so deficient that the policy ‘itself is a repudiation 24 of constitutional rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. 25 Black, 885 F.2d 642, 646 (9th Cir. 1989). 26 Accordingly, plaintiff's allegations fall short of what is necessary to give rise to a 27 cognizable claim for relief under section 1983 against any of the individual defendants. 28 //// 1 C. Liability for Entity Defendants 2 In addition, plaintiff’s claims against the entity defendants are not cognizable as pled. 3 “Section 1983 creates a private right of action against individuals who, acting under color of state 4 law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 5 (9th Cir. 2001). “Persons” who may be sued under Section 1983 are state and local officials sued 6 in their individual capacities, private individuals and entities which act under color of state law, 7 and/or the local governmental entity itself. Vance v. Cty. of Santa Clara, 928 F. Supp. 993, 995- 8 96 (N.D. Cal. 1996). Departments of municipal entities, however, are not “persons” subject to suit 9 under Section 1983 and, therefore, a local law enforcement department is not a proper party. 10 Vance, 928 F. Supp. at 996 (“Naming a municipal department as a defendant is not an appropriate 11 means of pleading a § 1983 action against a municipality.”) (citation omitted); Powell v. Cook 12 Cty. Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes liability on any ‘person’ 13 who violates someone’s constitutional rights ‘under color of law.’ Cook County Jail is not a 14 ‘person.’”). 15 A county jail or a local police department is not a “person” subject to suit under Section 16 1983. See e.g., United States v. Kama, 394 F.3d 1236, 1239 (9th Cir. 2005) (“[M]unicipal police 17 departments and bureaus are generally not considered ‘persons’ within the meaning of section 18 1983.”); Rodriguez v. Cty. of Contra Costa, 2013 WL 5946112 at *3 (N.D. Cal. Nov. 5, 2013) 19 (citing Hervey v. Estes, 65 F.3d 784, 791 (9th Cir. 1995)) (“Although municipalities, such as 20 cities and counties, are amenable to suit under Monell [v. Dep't of Social Servs., 436 U.S. 658 21 (1978)], sub-departments or bureaus of municipalities, such as the police departments, are not 22 generally considered “persons” within the meaning of § 1983.”); Nelson v. Cty. of Sacramento, 23 926 F. Supp. 2d 1159, 1170 (E.D. Cal. 2013) (dismissing Sacramento Sheriff’s Department from 24 section 1983 action “with prejudice” because it “is a subdivision of a local government entity,” 25 i.e., Sacramento County). 26 A local government is liable for an injury under § 1983 under three possible theories. See 27 Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010), overruled on other 28 grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc)). First, a local 1 government may be liable if “execution of a government’s policy or custom, whether made by its 2 lawmakers or by those whose edicts or acts may fairly be said to represent official policy, 3 inflict[ed] the injury.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 4 (1978). Second, a local government can fail to train employees in a manner that amounts to 5 “deliberate indifference” to a constitutional right, such that “the need for more or different 6 training is so obvious, and the inadequacy so likely to result in the violation of constitutional 7 rights, that the policymakers of the city can reasonably be said to have been deliberately 8 indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989). Third, a local 9 government may be held liable if “the individual who committed the constitutional tort was an 10 official with final policy-making authority or such an official ratified a subordinate’s 11 unconstitutional decision or action and the basis for it.” Gravelet-Blondin v. Shelton, 728 F.3d 12 1086, 1097 (9th Cir. 2013) (internal quotation marks and citation omitted). 13 D. Habeas v. Civil Rights 14 Finally, plaintiff’s allegations suggest that he is being confined in violation of his 15 constitutional rights. Federal law opens two main avenues to relief on complaints related to 16 imprisonment: a petition for habeas corpus and a civil rights complaint. See Muhammad v. Close, 17 540 U.S. 749, 750 (2004). “[H]abeas is the exclusive vehicle for claims brought by state prisoners 18 that fall within the core of habeas corpus, and such claims may not be brought in a § 1983 [civil 19 rights] action.” Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc). Nettles further 20 sets forth “the correlative rule that a § 1983 action is the exclusive vehicle for claims brought by 21 state prisoners that are not within the core of habeas corpus.” Id. That is, claims challenging “the 22 fact or duration of the conviction or sentence” are within the core of habeas, while claims 23 challenging “any other aspect of prison life” are properly brought as civil rights actions. Id. at 24 934. If success on a habeas petitioner’s claim would not necessarily lead to his immediate or 25 earlier release from confinement, the claim does not fall within “the core of habeas corpus” and 26 thus, is not cognizable under 28 U.S.C. § 2241. Id. at 935 (citing Skinner v. Switzer, 562 U.S. 521 27 (2012)). 28 1 Although not entirely clear, plaintiff’s allegations suggest that his sentence violates his 2 rights and that he should therefore be released. But insofar as plaintiff seeks speedier release as a 3 result of the defendants’ alleged constitutional violations, his claims must be brought in a petition 4 for writ of habeas corpus. 5 V. Conclusion 6 Plaintiff’s complaint fails to state a claim on which relief may be granted. The Court will 7 grant plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448- 8 49 (9th Cir. 1987). If plaintiff does not wish to amend, he may instead file a notice of voluntary 9 dismissal, and the action then will be terminated by operation of law. Fed. R. Civ. P. 41(a)(1)(A)(i). 10 Alternatively, plaintiff may forego amendment and notify the Court that he wishes to stand on his 11 complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may 12 elect to forego amendment). If the last option is chosen, the undersigned will issue findings and 13 recommendations to dismiss the complaint without leave to amend, plaintiff will have an 14 opportunity to object, and the matter will be decided by a District Judge. 15 If plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation 16 of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual 17 matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 18 555 (2007)). Plaintiff should note that although he has been granted the opportunity to amend his 19 complaint, it is not for the purposes of adding new and unrelated claims. George v. Smith, 507 F.3d 20 605, 607 (7th Cir. 2007). Plaintiff should carefully review this screening order and focus his efforts 21 on curing the deficiencies set forth above. 22 Finally, plaintiff is advised that Local Rule 220 requires that an amended complaint be 23 complete in itself without reference to any prior pleading. As a general rule, an amended complaint 24 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an 25 amended complaint is filed, the original complaint no longer serves a function in the case. Id. 26 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement 27 of each defendant must be sufficiently alleged. The amended complaint should be clearly titled, in 28 bold font, “First Amended Complaint,” reference the appropriate case number, and be an original 1 | signed under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P. 8(a). 2 | Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief 3 | above the speculative level... .” Twombly, 550 U.S. at 555 (citations omitted). 4 Accordingly, it is HEREBY ORDERED that: 5 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is granted; 6 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. 7 Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 8 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this 9 court’s order to the Director of the California Department of Corrections and 10 Rehabilitation filed concurrently herewith. 11 3. Within thirty (30) days from the date of service of this order, plaintiff must file either 12 a first amended complaint curing the deficiencies identified by the Court in this 13 order, a notice of voluntary dismissal, or a notice of election to stand on the 14 complaint; and 15 4. If plaintiff fails to file a first amended complaint or notice of voluntary dismissal, 16 the Court will recommend the action be dismissed, with prejudice, for failure to 17 obey a court order and failure to state a claim. 18 Dated: November 18, 2019 19 71 BORAH BARNES 22 UNITED STATES MAGISTRATE JUDGE 23 || DB/Inbox/Substantive/tum0416.scrn 24 25 26 27 28