Eller v. Almond ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 KENNETH WAYNE ELLER, 11 Case No. 19-06886 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH v. LEAVE TO AMEND 13 14 TOM ALMOND, Sherriff, 15 Defendant. 16 17 18 Plaintiff, who appears to be a pretrial detainee currently being held at the 19 Mendocino County Jail, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 20 1983 against Sheriff Tom Almond of Mendocino County. Dkt No. 1, “Compl.” Plaintiff’s 21 motion for leave to proceed in forma pauperis shall be addressed in a separate order. 22 DISCUSSION 23 A. Standard of Review 24 A federal court must conduct a preliminary screening in any case in which a 25 prisoner seeks redress from a governmental entity or officer or employee of a 26 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 27 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 1 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 2 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 3 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 4 elements: (1) that a right secured by the Constitution or laws of the United States was 5 violated, and (2) that the alleged violation was committed by a person acting under the 6 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 7 B. Plaintiff’s Claims 8 Plaintiff claims that on September 6, 2019, he was arrested, and that he spent 9 several days in a cold hard holding cell without socks or shoes and in a jumpsuit that was 10 too big. Compl. at 3. Plaintiff claims he was refused medical treatment and no shower, 11 among other things. Id. He was then placed in a medical observation cell with no food or 12 access to a doctor after complaining of cramps and constipation. Id. It was at least two 13 weeks before he was seen by a nurse who then gave him stool softener. Id. Plaintiff states 14 that he is “not asking for any money,” but does not describe what type of relief he is 15 seeking. Id. 16 When a pretrial detainee1 challenges conditions of his confinement, the proper 17 inquiry is whether the conditions amount to punishment in violation of the Due Process 18 Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). 19 Here, even if we assume that the alleged conditions – several days in a cold cell without 20 shoes and socks – amount to punishment, Plaintiff fails to show that the named defendant, 21 Sheriff Almond, was responsible. Nowhere in statement of claim does Plaintiff mention 22 Sheriff Almond by name, or any individual in fact, nor is there any indication that Sheriff 23 24 1 There is an important distinction between the status of an arrestee and a pretrial detainee. 25 An arrestee has not yet undergone the judicial determination of probable cause that has been applied to the pretrial detainee. See Carlo v. City of Chino, 105 F.3d 493, 499-500 26 (9th Cir. 1997). An arrestee, therefore, “is entitled at least to the protections afforded 1 Almond is liable in a supervisory capacity.2 Plaintiff shall be given leave to file an 2 amended complaint to attempt to set forth sufficient facts to state a Fourteenth Amendment 3 claim against Sheriff Almond or any other specific individual. 4 Plaintiff also alleges that he was denied medical treatment for the first few days he 5 was being held, and that he did not have access to a doctor or nurse for at least two weeks. 6 A claim for a violation of a pretrial detainee’s right to adequate medical care arises under 7 the Fourteenth Amendment rather than the Eighth Amendment. See Gordon v. County of 8 Orange, 888 F.3d 1118, 1122 & n.4 (9th Cir. 2018). The claim is evaluated under an 9 objective deliberate indifference standard. 10 [T]he elements of a pretrial detainee's medical care claim against an individual defendant under the due process clause of the 11 Fourteenth Amendment are: (i) the defendant made an intentional decision with respect to the conditions under which 12 the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant 13 did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would 14 have appreciated the high degree of risk involved—making the consequences of the defendant's conduct obvious; and (iv) by 15 not taking such measures, the defendant caused the plaintiff's injuries. 16 Id. at 1125. With regard to the third element, the defendant’s conduct must be objectively 17 unreasonable -- “a test that will necessarily turn[] on the facts and circumstances of each 18 particular care.” Id. (citations and internal quotation marks omitted). The four-part test 19 articulated in Gordon requires the plaintiff to prove more than negligence, but less than 20 subjective intent --something akin to reckless disregard. Id. Here, Plaintiff fails to explain 21 how Defendant Sheriff Almond was responsible for the denial of medical treatment. In 22 23 2 A supervisor may be liable under section 1983 upon a showing of (1) personal 24 involvement in the constitutional deprivation or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation. Henry A. v. Willden, 25 678 F.3d 991, 1003-04 (9th Cir. 2012). However, under no circumstances is there respondeat superior liability under section 1983. Or, in layman's terms, under no 26 circumstances is there liability under section 1983 solely because one is responsible for the 1 filing an amended complaint, Plaintiff may attempt to set forth sufficient factual 2 allegations to establish a denial of adequate medical treatment under the Fourteenth 3 Amendment against Sheriff Almond or a newly named defendant. 4 Lastly, Plaintiff fails to set forth an adequate form or relief. He simply states that he 5 is “not asking for money.” Compl. at 2. The instructions for “Relief” state that he must 6 “[s]tate briefly exactly what you want the court to do for you.” (Coml. at 3.) Plaintiff 7 must include an explanation as to what form of relief he seeks in order for this action to 8 proceed against any defendant. 9 In preparing an amended complaint, Plaintiff should keep the following principles 10 in mind. Liability may be imposed on an individual defendant under § 1983 only if 11 Plaintiff can show that the defendant proximately caused the deprivation of a federally 12 protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of 13 Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a 14 constitutional right within the meaning of section 1983 if he does an affirmative act, 15 participates in another’s affirmative act or omits to perform an act which he is legally 16 required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 17 F.2d at 633. Accordingly, Plaintiff must allege sufficient facts describing each named 18 defendant’s actions or failure to act that caused the violation of his constitutional rights. 19 20 CONCLUSION 21 For the reasons state above, the Court orders as follows: 22 The complaint is DISMISSED with leave to amend. Within twenty-eight (28) 23 days from the date this order is filed, Plaintiff shall file an amended complaint using the 24 court’s form complaint. The amended complaint must include the caption and civil case 25 number used in this order, i.e., Case No. C 19-06886 BLF (PR), and the words 26 “AMENDED COMPLAINT” on the first page. Plaintiff must answer all the questions on 1 || complaint supersedes the original, and Plaintiff may not make references to the original 2 || complaint. Claims not included in the amended complaint are no longer claims and 3 || defendants not named in an amended complaint are no longer defendants. See Ferdik v. 4 || Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). 5 Failure to respond in accordance with this order by filing an amended 6 || complaint in the time provided will result in the dismissal of this action without 7 || prejudice and without further notice to Plaintiff. 8 The Clerk shall include two copies of the court’s form complaint with a copy of this 9 || order to Plaintiff. 10 IT IS SO ORDERED. hh hn 11 || Dated: _March 17, 2020 / bo | ( neh) BETH LABSON FREEMAN United States District Judge 13 14 o 15 16 («17 Oo Z 18 19 20 21 22 23 24 25 Order of Dismissal with Leave to Amend PRO-SE\BLF\CR.19\06886Eller_dwlta 26 27