(PC) Leeper v. County of Sacramento ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DALE LEEPER, No. 2:20-cv-0960 AC P 12 Plaintiff, 13 v. ORDER 14 COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff Dale Leeper is a Sacramento County prisoner currently incarcerated at Rio 19 Cosumnes Correctional Center. Plaintiff proceeds pro se with a request to proceed in forma 20 pauperis and a putative civil rights complaint filed pursuant to 42 U.S.C. § 1983. 21 This action is referred to the undersigned United States Magistrate Judge pursuant to 28 22 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons that follow, the undersigned grants 23 plaintiff’s request to proceed in forma pauperis and dismisses the complaint with leave to amend. 24 II. In Forma Pauperis Application 25 Plaintiff has submitted an affidavit and prison trust account statement that make the 26 showing required by 28 U.S.C. § 1915(a). See ECF No. 2. Accordingly, plaintiff’s request to 27 proceed in forma pauperis will be granted. Plaintiff must nevertheless pay the statutory filing fee 28 of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be 1 assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). 2 By separate order, the court will direct the appropriate agency to collect the initial partial filing 3 fee from plaintiff’s trust account and forward it to the Clerk of the Court. Thereafter, plaintiff 4 will be obligated to make monthly payments of twenty percent of the preceding month’s income 5 credited to plaintiff’s trust account. These payments will be forwarded by the appropriate agency 6 to the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the 7 filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 8 III. Screening of Plaintiff’s Complaint 9 A. Legal Standards 10 The court is required to screen complaints brought by prisoners seeking relief against a 11 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 12 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 13 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 14 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 15 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 16 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 17 1984). 18 Rule 8 of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement 19 of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair 20 notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. 21 Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 22 “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it 23 demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 24 Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly at 555). To survive dismissal for failure to 25 state a claim, “a complaint must contain sufficient factual matter, accepted as true, to “state a 26 claim to relief that is plausible on its face.’” Iqbal at 678 (quoting Twombly at 570). “A claim 27 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 28 reasonable inference that the defendant is liable for the misconduct alleged. 1 “A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however 2 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 3 lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 4 106 (1976) (internal quotation marks omitted)). See also Fed. R. Civ. P. 8(e) (“Pleadings shall be 5 so construed as to do justice.”). Additionally, a pro se litigant is entitled to notice of the 6 deficiencies in the complaint and an opportunity to amend, unless the complaint’s deficiencies 7 cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 8 B. The Complaint 9 Plaintiff’s complaint seeks 5 million dollars from defendants Sacramento County and Rio 10 Cosumnes Correctional Center on the following grounds: 11 The lawsuit is in reference to COVID-19 and that the CDC recommendations are not being met. Social distancing, masks, 12 uncleanly environment and that I am innocent until proven guilty without any medical testing being done. This is a violation of 13 California Constitution article 1 and 6 being violated especially the 6th 8th and 14th Amendments without due process of law. 14 Subjecting me to cruel and unusual punishment. 15 ECF No. 1 at 3. 16 The complaint contains no other allegations. Plaintiff seeks “damages of five million 17 dollars.” Id. C. Analysis: Failure to State a Cognizable Claim 18 The complaint reflects plaintiff’s generalized concerns that he may be exposed to 19 COVID-19 while incarcerated at Sacramento County’s Rio Cosumnes Correctional Center due to 20 the alleged and/or anticipated failure of correctional officials to adhere to protocols that can 21 reduce such risk. A pretrial detainee’s right to be protected by jail officials is grounded in the 22 Fourteenth Amendment’s Due Process Clause. The following standards apply: 23 The elements of a pretrial detainee’s Fourteenth Amendment failure- 24 to-protect claim against an individual officer are: 25 (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 26 (2) Those conditions put the plaintiff at substantial risk of suffering 27 serious harm; 28 1 (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances 2 would have appreciated the high degree of risk involved – making the consequences of the defendant's conduct obvious; and 3 (4) By not taking such measures, the defendant caused the plaintiff’s 4 injuries. 5 With respect to the third element, the defendant’s conduct must be objectively unreasonable, a test that will necessarily turn on the facts 6 and circumstances of each particular case. 7 Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (footnote, internal 8 citations and punctuation omitted). 9 To state a claim against a local governmental entity (e.g. Sacramento County), a plaintiff 10 must allege that a specific “policy or custom” of the agency was the “moving force” causing the 11 alleged constitutional violation, Monell v. Dept. of Social Services, 436 U.S. 658, 694 (1978), 12 demonstrating deliberate indifference to plaintiff’s constitutional rights, City of Canton v. Harris, 13 489 U.S. 378, 392 (1989). Accord, Castro, 833 F.3d at 1073. A local governmental entity may 14 not be held liable under a respondeat superior theory premised on the individual conduct of its 15 subordinates. Monell, 436 U.S. at 694. 16 “[N]o one questions that [COVID-19] poses a substantial risk of serious harm” to 17 prisoners. Plata v. Newsom, __ F.3d. __, 2020 WL 1908776, at *1, 2020 U.S. Dist. LEXIS 18 70271 (N.D. Cal. Apr. 17, 2020). Nevertheless, state and county officials are striving to reduce 19 that risk. See id. at *4-5 (noting measures implemented to reduce infection and transmission of 20 COVID-19 among state prisoners, including through increased sanitation, testing and social 21 distancing). Such efforts must be specifically considered in determining whether a defendant’s 22 response to the COVID-19 pandemic is objectively unreasonable. 23 The instant complaint alleges that plaintiff’s place of detention is not meeting CDC 24 recommendations in responding to the COVID-19 threat, and generally identifies “social 25 distancing, masks, uncleanly environment and . . . without any medical testing being done.” ECF 26 No. 1 at 3. These allegations are insufficient to state a cognizable Fourteenth Amendment claim. 27 A cognizable claim must be more specific in identifying defendant’s challenged conduct, explain 28 how that conduct is unreasonable under the circumstances, and describe how defendant’s conduct 1 has harmed plaintiff. “A person ‘subjects’ another to the deprivation of a constitutional right, 2 within the meaning of § 1983, if he does an affirmative act, participates in another’s affirmative 3 acts or omits to perform an act which he is legally required to do that causes the deprivation of 4 which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 5 A cognizable claim must be specific to plaintiff alone; plaintiff cannot represent the 6 general or perceived interests of other detainees. “A litigant appearing in propria persona has no 7 authority to represent anyone other than himself” in the action. Russell v. United States, 308 F.2d 8 78, 79 (9th Cir. 1962). 9 For these reasons, the court will not direct service of the complaint. However, plaintiff 10 will be accorded the opportunity to file an amended complaint that states a cognizable claim 11 subject to the standards set forth above. 12 IV. Leave to File an Amended Complaint 13 Plaintiff will be granted leave to file a proposed First Amended Complaint (FAC) within 14 thirty days, in which he may attempt to state a cognizable federal claim subject to the legal 15 standards set forth herein. The FAC must be on the form provided herewith, labeled “First 16 Amended Complaint,” and provide the case number assigned this case. The FAC must be 17 complete in itself without reference to the original complaint. See Local Rule 15-220; Loux v. 18 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). 19 The FAC will be screened by the court pursuant to 28 U.S.C. § 1915A. Failure to timely 20 file a FAC will result in a recommendation that this action be dismissed without prejudice. 21 V. Conclusion 22 For the foregoing reasons, IT IS HEREBY ORDERED that: 23 1. Plaintiff’s request to proceed in forma pauperis, ECF No. 2, is granted. 24 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 25 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 26 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 27 Sheriff of Sacramento County filed concurrently herewith. 28 wOAOe 2 OU VOY PU RENN MUO I Oe POY VV 1 3. The complaint, ECF No. 1, is found not to state a claim upon which relief may be 2 || granted. 3 4. Plaintiff is granted leave to file a First Amended Complaint (FAC) within thirty (30) 4 | days after service of this order, subject to the legal standards set forth herein. Failure to timely 5 || file a FAC will result in a recommendation that this action be dismissed without prejudice. 6 5. The Clerk of Court is directed to send plaintiff, together with a copy of this order, a 7 | copy of the form complaint used by prisoners in this district to pursue a civil rights action under 8 | 42 U.S.C. § 1983. 9 IT IS SO ORDERED. 10 | DATED: July 7, 2020 ~ u Chthien—Chare ALLISON CLAIRE 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28