1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM DAWES, Case No. 3:19-cv-02122-MMA-WVG Booking #19760125, 12 ORDER SCREENING FIRST Plaintiff, 13 AMENDED COMPLAINT vs. PURSUANT TO 28 U.S.C. § 14 1915(e)(2)(B) AND 28 U.S.C. § THE PEOPLE OF THE STATE OF 15 1915A(b) CALIFORNIA, et al. 16 Defendants. 17 18 19 On November 4, 2019, Plaintiff William Dawes, currently incarcerated at the San 20 Diego County Sheriff Department’s Central Jail (“SDCJ”) in San Diego, California, and 21 proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. See 22 Compl., Doc. No. 1. Plaintiff did not pay the fee required by 28 U.S.C. § 1914(a) when 23 he filed his Complaint; instead he filed a Motion to Proceed In Forma Pauperis (“IFP”) 24 pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. On December 20, 2019, the Court 25 granted Plaintiff’s Motion to Proceed IFP but simultaneously dismissed his Complaint for 26 failing to state a claim upon which relief may be granted. See Doc. No. 9. Plaintiff was 27 granted leave to file an amended pleading to correct the deficiencies of pleading 28 identified in the Court’s Order. See id. at 13-14. After requesting, and receiving, an 1 extension of time to file an amended pleading, Plaintiff filed his First Amended 2 Complaint (“FAC”) on February 4, 2020. See Doc. No. 13. 3 II. Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A 4 A. Standard of Review 5 As the Court previously informed Plaintiff, because Plaintiff is a prisoner and is 6 proceeding IFP, his FAC requires a pre-answer screening pursuant to 28 U.S.C. 7 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must review and sua sponte 8 dismiss an IFP complaint, and any complaint filed by a prisoner seeking redress from a 9 governmental entity, or officer or employee of a governmental entity, which is frivolous, 10 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 11 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 12 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 13 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of 14 frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. 15 Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health 16 Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 17 All complaints must contain “a short and plain statement of the claim showing that 18 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 19 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 20 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 21 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 22 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 23 requires the reviewing court to draw on its judicial experience and common sense.” Id. 24 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 25 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 26 “The standard for determining whether a plaintiff has failed to state a claim upon 27 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 28 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 1 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 2 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 3 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 4 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, 5 accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 6 678 (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 7 “When there are well-pleaded factual allegations, a court should assume their 8 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 9 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 10 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 11 allegations of material fact and must construe those facts in the light most favorable to 12 the plaintiff.”). However, while the court “ha[s] an obligation where the petitioner is pro 13 se, particularly in civil rights cases, to construe the pleadings liberally and to afford the 14 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 15 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 16 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 17 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 18 Finally, the “[c]ourt[] must consider the complaint in its entirety,” including 19 “documents incorporated into the complaint by reference” to be part of the pleading when 20 determining whether the plaintiff has stated a claim upon which relief may be granted. 21 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Fed. R. Civ. P. 22 10(c) (“A copy of a written instrument that is an exhibit to a pleading for all purposes.”); 23 Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 24 B. Plaintiff’s Allegations and Rule 8 25 Once again, the Court finds that Plaintiff generally fails to comply with Rule 8 of 26 the Federal Rules of Civil Procedure. Rule 8 provides that in order to state a claim for 27 relief in a pleading, it must contain “a short and plain statement of the grounds for the 28 court’s jurisdiction” and “a short and plain statement of the claim showing that the 1 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(1) & (2); see McHenry v. Renne, 84 2 F.3d 1172, 1178–80 (9th Cir. 1996) (upholding Rule 8(a) dismissal of complaint that was 3 “argumentative, prolix, replete with redundancy, and largely irrelevant”); Cafasso, 4 United States ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th 5 Cir. 2011) (citing cases upholding Rule 8 dismissals where pleadings were “verbose,” 6 “confusing,” “distracting, ambiguous, and unintelligible,” “highly repetitious,” and 7 comprised of “incomprehensible rambling,” while noting that “[o]ur district courts are 8 busy enough without having to penetrate a tome approaching the magnitude of War and 9 Peace to discern a plaintiff’s claims and allegations.”). With respect to many of his 10 claims, Plaintiff has not complied with these requirements, as his factual allegations are 11 vague and often disjointed. 12 C. 42 U.S.C. § 1983 13 “Section 1983 creates a private right of action against individuals who, acting 14 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 15 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 16 substantive rights, but merely provides a method for vindicating federal rights elsewhere 17 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 18 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 19 deprivation of a right secured by the Constitution and laws of the United States, and (2) 20 that the deprivation was committed by a person acting under color of state law.” Tsao v. 21 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 22 D. Public Defender 23 Once again, Plaintiff names attorneys who have been appointed to represent him, 24 see FAC at 1-3, he fails to state a claim upon which § 1983 relief can be granted. See 28 25 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). Plaintiff alleges that these 26 Defendants “allowed Plaintiff to be convicted without a trial and without evidence.” 27 FAC at 6. “[A] public defender does not act under color of state law when performing a 28 lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Polk 1 County v. Dodson, 454 U.S. 312, 325 (1981); Miranda v. Clark County, Nevada, 319 2 F.3d 465, 468 (9th Cir. 2003) (“[The public defender] was, no doubt, paid by government 3 funds and hired by a government agency. Nevertheless, [her] function was to represent 4 [her] client, not the interests of the state or county.”); Garnier v. Clarke, 332 Fed. App’x 5 416 (9th Cir. 2009) (affirming district court’s sua sponte dismissal of prisoner’s § 1983 6 claims against appointed counsel). 7 Thus, all claims against Defendants DeDrick, Kern, Roustan, Grossman, Manqarin 8 and Jayakumar are dismissed without leave to amend. Plaintiff fails to state a plausible 9 claim against any of these defendants. 10 E. Heck Bar 11 There are two methods for state prisoners to raise complaints related to their 12 imprisonment in federal court. See Muhammad v. Close, 540 U.S. 749, 750 (2004) 13 (“Federal law opens two main avenues to relief on complaints related to 14 imprisonment....”) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). In general, 15 claims of constitutional violations related to the “circumstances” of a prisoner’s 16 confinement must be brought in a civil rights action under Section 1983, see id., while 17 constitutional challenges to the validity or duration of a prisoner’s confinement must be 18 raised in a petition for federal habeas corpus under 28 U.S.C. § 2254, or through 19 appropriate state relief. Wilkinson v. Dotson, 544 U.S. 74, 78-79 (2005) (citations and 20 internal quotation marks omitted); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) 21 (en banc) (“The Court has long held that habeas is the exclusive vehicle for claims 22 brought by state prisoners that fall within the core of habeas, and such claims may not be 23 brought in a § 1983 action.”) (citing Dotson, 544 U.S. at 81-82). 24 Thus, to the extent Plaintiff seeks damages based on claims that he has been 25 unlawfully convicted, sentenced, and/or incarcerated due to his public defenders’ failing 26 to “establish a defense,” violating his “rights to a speedy trial,” and “working as a 27 28 1 prosecutor,” see FAC at 1-2; 7-8, he may not pursue those claims in a civil rights action 2 pursuant to 42 U.S.C. § 1983, without first showing his conviction has already been 3 invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). 4 In Heck, the Supreme Court held: 5 in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions 6 whose unlawfulness would render a conviction or sentence 7 invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by 8 executive order, declared invalid by a state tribunal authorized to 9 make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A 10 claim for damages bearing that relationship to a conviction or 11 sentence that has not been so invalidated is not cognizable under § 1983. 12 13 Id. at 486-87; Washington v. Los Angeles County Sheriff’s Dep’t, 833 F.3d 1048, 1054-55 14 (9th Cir. 2016). “Suits challenging the validity of the prisoner’s continued incarceration 15 lie within ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a 16 state prisoner who is making a constitutional challenge to the conditions of his prison life, 17 but not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th 18 Cir. 2003) (emphasis added), quoting Preiser, 411 U.S. at 498-99 (holding that a writ of 19 habeas corpus is “explicitly and historically designed” to provide a state prisoner with the 20 “exclusive” means to “attack the validity of his confinement” in federal court). 21 Because Plaintiff seeks damages based on alleged violations of his constitutional 22 rights during his criminal and appellate proceedings, he may not proceed pursuant to 23 § 1983, unless he alleges and can show that conviction has already been invalidated. 24 Heck, 512 U.S. at 486-87; Ramirez, 334 F.3d at 855-56 (“Absent such a showing, ‘[e]ven 25 a prisoner who has fully exhausted available state remedies has no cause of action under 26
27 1 Plaintiff also seeks to have “all my liberties restored due to theft of liberty under 13th Amendment.” 28 1 § 1983.’”), quoting Heck, 512 U.S. at 489. This is because an award of damages in his 2 favor would necessarily imply the invalidity of his conviction and consequently affect the 3 duration of his confinement. See Heck, 512 U.S. at 487; see also Pattillo v. Lombardo, 4 No. 2:17-CV-01849-JAD-VCF, 2017 WL 3622778, at *4 (D. Nev. Aug. 23, 2017) 5 (“When a prisoner challenges the legality or duration of his custody, raises a 6 constitutional challenge which could entitle him to an earlier release … or seeks damages 7 for purported deficiencies in his state court criminal case, which effected a conviction or 8 lengthier sentence, his sole federal remedy is the writ of habeas corpus.”); Toney v. Ruiz, 9 No. 3:10-CV-00405 BTM (PCL), 2010 WL 2383787, at *2 (S.D. Cal. June 9, 2010) 10 (noting that “ineffective assistance of counsel claims ‘necessarily imply the invalidity’ of 11 criminal proceedings.”) (citing Heck, 512 U.S. at 487; Strickland v. Washington, 466 U.S. 12 668, 688 (1984) (to succeed on ineffective assistance claim petitioner must show that 13 counsel’s performance fell below objective standard of reasonableness and that but for 14 counsel’s errors the result of the trial would have been different)). 15 Because Plaintiff does not allege to have already invalidated his conviction by way 16 of direct appeal, executive order, or through the issuance of either a state or federal court 17 writ of habeas corpus, Heck, 512 U.S. at 487, his claims must be dismissed for failing to 18 state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. 19 § 1915(e)(2)(B) and § 1915A(b). These claims are dismissed without leave to amend but 20 without prejudice to pursue these claims by way of direct appeal, executive order, or 21 through the issuance of either a state or federal court writ of habeas corpus. 22 F. Respondeat Superior 23 Plaintiff seeks to hold Gavin Newsome, Governor of California, liable because he 24 is “responsible to seeing to the U.S. Constitution and its citizens being protected by the 25 Constitution and state rules and regulations and laws that govern this state.” FAC at 6. 26 Plaintiff fails to state a plausible claim for relief under § 1983 because he fails to include 27 “further factual enhancement” which describes how or when Governor Newsome was 28 actually aware of any serious risk of harm to Plaintiff. Iqbal, 556 U.S. at 678 (citing 1 Twombly, 550 U.S. at 557). 2 There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. 3 Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). “Because vicarious liability is 4 inapplicable to ... § 1983 suits, [Plaintiff] must plead that each government-official 5 defendant, through the official’s own individual actions, has violated the Constitution.” 6 Iqbal, 556 at 676; see also Jones v. Community Redevelopment Agency of City of Los 7 Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at 8 least me degree of particularity overt acts which defendants engaged in” in order to state 9 a claim). 10 As currently pleaded, Plaintiff’s FAC offers no factual detail from which the Court 11 might reasonably infer a plausible claim for relief based on a violation of any 12 constitutional right on the part of Governor Newsome. Rule “demands more than an 13 unadorned, the-defendant-unlawfully-harmed-me accusation,” and in order “[t]o survive 14 a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, 15 to ‘state a claim for relief that is plausible on its face.’” Iqbal, 662 U.S. at 678 (quoting 16 Twombly, 550 U.S. at 555, 570). And a supervisory official may only be held liable 17 under § 1983 if Plaintiff alleges his “personal involvement in the constitutional 18 deprivation, or … a sufficient causal connection between the supervisor’s wrongful 19 conduct and the constitutional violation.” Keates v. Koile, 883 F.3d 1228, 1242-43 (9th 20 Cir. 2018); Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). 21 Plaintiff makes no such allegations in his FAC. Therefore, the Court sua sponte 22 dismisses Plaintiff’s claims against Governor Newsome without leave to amend based on 23 Plaintiff’s failure to state a plausible individual liability claim against him. See 28 U.S.C. 24 § 1915(e)(2)(B)(ii) and § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 25 1004. 26 G. San Diego Sheriff’s Department 27 To the extent that Plaintiff names the “San Diego Sheriff’s Department,” 28 (“SDSD”) as a Defendant, he fails to state a claim upon which § 1983 relief may be 1 granted. Departments of municipal entities are not “persons” subject to suit under 2 § 1983; therefore, a local law enforcement agency, like the SDSD, are not proper parties. 3 See Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (“Naming a 4 municipal department as a defendant is not an appropriate means of pleading a § 1983 5 action against a municipality.”) (citation omitted); Powell v. Cook County Jail, 814 F. 6 Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes liability on any ‘person’ who 7 violates someone’s constitutional rights ‘under color of law.’ Cook County Jail is not a 8 ‘person.’”). 9 “Persons” under § 1983 are state and local officials sued in their individual 10 capacities, private individuals and entities which act under color of state law, and/or the 11 local governmental entity itself. Vance, 928 F. Supp. at 995-96. The SDSD is a law 12 enforcement agency or department of the County of San Diego, but it is not a “person” 13 subject to suit under § 1983. See e.g., United States v. Kama, 394 F.3d 1236, 1239 (9th 14 Cir. 2005) (“[M]unicipal police departments and bureaus are generally not considered 15 ‘persons’ within the meaning of section 1983.”); Rodriguez v. Cnty. of Contra Costa, 16 2013 WL 5946112 at *3 (N.D. Cal. Nov. 5, 2013) (citing Hervey v. Estes, 65 F.3d 784, 17 791 (9th Cir. 1995)) (“Although municipalities, such as cities and counties, are amenable 18 to suit under Monell [v. Dep’t of Social Servs, 436 U.S. 658 (1978)], sub-departments or 19 bureaus of municipalities, such as the police departments, are not generally considered 20 “persons” within the meaning of § 1983.”); Nelson v. Cty. of Sacramento, 926 F. Supp. 21 2d 1159, 1170 (E.D. Cal. 2013) (dismissing Sacramento Sheriff’s Department from 22 section 1983 action “with prejudice” because it “is a subdivision of a local government 23 entity,” i.e., Sacramento County); Gonzales v. City of Clovis, 2013 WL 394522 (E.D. Cal. 24 Jan. 30, 2013) (holding that the Clovis Police Department is not a “person” for purposes 25 of section 1983); Wade v. Fresno Police Dep’t, 2010 WL 2353525 at *4 (E.D. Cal. June 26 9, 2010) (finding the Fresno Police Department to not be a “person” under section 1983). 27 Therefore, Plaintiff cannot pursue any § 1983 civil rights claims against the “San Diego 28 Sheriff’s Department.” See Boone v. Deutsche Bank Nat’l Tr. Co., No. 2:16-CV-1293- 1 GEB-KJN-PS, 2017 WL 117966, at *3 (E.D. Cal. Jan. 12, 2017) (“Because the Solano 2 County Sheriff’s Department is not a ‘person’ within the meaning of Section 1983, 3 plaintiffs cannot maintain their claims against it under that statute as a matter of law.”). 4 To the extent Plaintiff also asserts a claim against the County of San Diego itself, 5 his allegations are also insufficient. A municipal entity may be held liable under § 1983 6 only if he alleges facts sufficient to plausibly show that he was deprived of a 7 constitutional right by individually identified employees who acted pursuant to the 8 municipality’s policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 9 U.S. 274, 280 (1977); Monell, 436 U.S. at 691; Villegas v. Gilroy Garlic Festival Ass’n, 10 541 F.3d 950, 964 (9th Cir. 2008). The County of San Diego may not be held vicariously 11 liable under § 1983 simply because one of its employees is alleged to have acted 12 wrongfully. See Board of Cty. Comm’rs. v. Brown, 520 U.S. 397, 403 (1997); Monell, 13 436 U.S. at 691 (“[A] a municipality cannot be held liable solely because it employs a 14 tortfeasor.”); Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir. 2014). Instead, the 15 municipality may be held liable “when execution of a government’s policy or custom ... 16 inflicts [a constitutional] injury.” Monell, 436 U.S. at 694; Los Angeles Cty., Cal. v. 17 Humphries, 562 U.S. 29, 36 (2010). Accordingly, the Court sua sponte dismisses 18 Defendant San Diego Sheriff’s Department. See 28 U.S.C. § 1915(e)(2)(B)(ii) and 19 § 1915A(b)(1). 20 H. Rooker-Feldman 21 It is not entirely clear, but it appears that Plaintiff seeks relief from this Court for 22 rulings made in a state proceeding by Defendant Martinez. See FAC at 9. However, this 23 is not a viable form of relief in this action. The Rooker-Feldman doctrine provides that 24 “‘a losing party in state court is barred from seeking what in substance would be 25 appellate review of the state judgment in a United States District Court, based on the 26 losing party’s claim that the state judgment itself violates the loser’s federal rights.’” 27 Doe v. Mann, 415 F.3d 1038, 1041 (9th Cir. 2005) (quoting Johnson v. De Grandy, 512 28 U.S. 997, 1005-06 (1994)); see District of Columbia Court of Appeals v. Feldman, 460 1 U.S. 462, 476 & 486 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). 2 Review of state court decisions may only be conducted in the United States 3 Supreme Court. Feldman, 460 U.S. at 476 & 486; Rooker, 263 U.S. at 416; see 28 4 U.S.C. § 1257. The Rooker-Feldman jurisdictional bar applies even if the complaint 5 raises federal constitutional issues. Feldman, 460 U.S. at 483 n.16 & 486; Henrichs v. 6 Valley View Development, 474 F.3d 609, 613 (9th Cir. 2007). More specifically, the bar 7 applies if the challenge to the state court decision is brought as a § 1983 civil rights 8 action. See Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995); Worldwide Church of God 9 v. McNair, 805 F.2d 888, 893 n.4 (9th Cir. 1986). A complaint challenges a state court 10 decision if the constitutional claims presented to the district court are “inextricably 11 intertwined” with the state court’s decision in a judicial proceeding. Feldman, 460 U.S. 12 at 483 n.16. “[T]he federal claim is inextricably intertwined with the state court 13 judgment if the federal claim succeeds only to the extent that the state court wrongly 14 decided the issues before it.” Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 25 (1987) 15 (Marshall, J., concurring); see also Worldwide Church of God, 805 F.2d at 891-92. 16 Because Plaintiff appears to seek this Court’s assistance in overturning orders 17 made by state court judges, his claims are inextricably intertwined with the state court 18 proceedings and are barred by the Rooker-Feldman doctrine. 19 I. Due Process claims 20 Plaintiff also alleges that the Warden for the Richard J. Donovan Correctional 21 Facility (“RJD”), Daniel Paramo, held a “kangaroo court to convict [Plaintiff] of alleged 22 crimes.” FAC at 9. Plaintiff further claims Defendant Garza “violated his due process 23 rights by “falsifying” reports. Id. However, to the extent Plaintiff challenges the validity 24 of disciplinary proceedings, he fails to state a claim upon which § 1983 relief can be 25 granted. See 28 U.S.C. §§ 1915(e)(2), 1915A(b). 26 The Due Process Clause protects prisoners against deprivation or restraint of “a 27 protected liberty interest” and “atypical and significant hardship on the inmate in relation 28 to the ordinary incidents of prison life.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 1 2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)) (internal quotation marks 2 omitted). Although the level of the hardship must be determined in a case-by-case 3 determination, courts look to: 4 1) whether the challenged condition ‘mirrored those conditions imposed upon inmates in administrative segregation and protective custody,’ and thus 5 comported with the prison’s discretionary authority; 2) the duration of the 6 condition, and the degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence. 7
8 Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87). Only if an inmate has 9 alleged facts sufficient to show a protected liberty interest does the court next consider 10 “whether the procedures used to deprive that liberty satisfied Due Process.” Ramirez, 11 334 F.3d at 860. 12 As currently pleaded, Plaintiff’s FAC fails to allege facts which show that the 13 disciplinary punishment he faced subjected him to any “atypical and significant hardship 14 in relation to the ordinary incidents of prison life.” Id.; Sandin, 515 U.S. at 484. The 15 Court finds Plaintiff’s pleading contains no “factual content that allows the court to draw 16 the reasonable inference,” Iqbal, 556 U.S. at 678, that Defendants’ actions “presented a 17 dramatic departure from the basic conditions of [Plaintiff’s] indeterminate sentence,” or 18 caused him to suffer an “atypical” or “significant hardship.” Sandin, 515 U.S. at 584-85; 19 see also Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996), amended by 135 F.3d 20 1318 (9th Cir. 1998). Accordingly, Plaintiff’s Fourteenth Amendment due process 21 claims arising from disciplinary hearings are subject to dismissal with leave to amend. 22 J. Medical Care claims 23 Plaintiff also claims that Defendants Fowler, Barenchi, Manning, Kapadia, and 24 Malrick committed “psychiatric malpractice” when they “forced medication for a mental 25 illness [Plaintiff] does not have.” FAC at 10. The Supreme Court has held that inmates 26 have a liberty interest in freedom from involuntarily administration of antipsychotic or 27 psychotropic medication. See Washington v. Harper, 494 U.S. 210, 220-21, 236 (1990); 28 Chappell v. Mandeville, 706 F.3d 1052, 1063 (9th Cir. 2013) (“Only the most extreme 1 changes in the conditions of confinement have been found to directly invoke the 2 protections of the Due Process Clause [of the Fourteenth Amendment], such as … the 3 forced administration of psychotropic drugs[.]”). 4 “The extent of a prisoner’s right under the [Due Process] Clause to avoid the 5 unwanted administration of antipsychotic drugs must be defined in the context of the 6 inmate’s confinement.” Harper, 494 U.S. at 222. “[G]iven the requirements of the 7 prison environment, the Due Process Clause permits the State to treat a prison inmate 8 who has a serious mental illness with antipsychotic drugs against his will, if the inmate is 9 dangerous to himself or others and the treatment is in the inmate’s medical interests.” Id. 10 at 227. 11 While the Supreme Court has not determined the minimum procedural safeguards 12 necessary when administering involuntary medication, it did find that procedures are 13 adequate when an inmate is provided with “notice, the right to be present at an adversary 14 hearing, and the right to present and cross-examine witnesses.” Id. at 235 (citing Vitek v. 15 Jones, 445 U.S. 480, 494-96 (1980)). Here, Plaintiff’s factual allegations are too 16 scattered and inconsistent for the Court to determine the nature of Plaintiff’s claims with 17 regarding the allegations of the administration of involuntary medication. It is not clear 18 where or when many of the events giving right to Plaintiff’s claims occurred. 19 Accordingly, Plaintiff’s Fourteenth Amendment claims relating to his allegations of 20 involuntary administration of antipsychotic medications must be dismissed. 21 K. Property claims 22 Plaintiff also claims that on January 26, 2016, he was “removed from A yard” to 23 “B yard Ad-Seg for threats on inmate.” FAC at 13. When Plaintiff returned to his cell on 24 March 4, 2016, he was told that correctional officers had given his personal property to 25 another inmates. See id. Plaintiff began “demanding his property from officers” but they 26 told him “no paperwork, no proof” and would not return his property. See id. 27 The Due Process Clause protects against deprivations of property without due 28 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The United States 1 Supreme Court has also held, however, that “an unauthorized intentional deprivation of 2 property by a state employee does not constitute a violation of the procedural 3 requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful 4 post-deprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 5 (1984). California’s tort claim process provides an adequate post-deprivation remedy. 6 Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (per curiam) (“[A] negligent or 7 intentional deprivation of a prisoner’s property fails to state a claim under section 1983 if 8 the state has an adequate post deprivation remedy.”); see also Teahan v. Wilhelm, 481 F. 9 Supp. 2d 1115, 1120 (S.D. Cal. 2007). Accordingly, the Court dismisses Plaintiff’s 10 property claims without leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2) and 11 1915A(b). 12 L. Eighth Amendment claims 13 As to Defendants Bravo, Gene, Ugalde, Ausbury, Silva, Shellano, Ayala, Solis, 14 and Zuniga, however, the Court finds Plaintiff’s FAC contains Eighth Amendment 15 excessive force and failure to protect claims sufficient to survive the “low threshold” for 16 proceeding past the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 17 1915A(b). See Hudson v. McMillian, 503 U.S. 1, 5 (1992) (unnecessary and wanton 18 infliction of pain violates the Cruel and Unusual Punishments Clause of the Eighth 19 Amendment); Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (for claims arising 20 out of the use of excessive physical force, the issue is “whether force was applied in a 21 good faith effort to maintain or restore, or maliciously and sadistically to cause harm”) 22 (citing Hudson, 503 U.S. at 7) (internal quotation marks omitted); Wilhelm, 680 F.3d at 23 1123; see also Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 24 2013) (prison officials have a duty under the Eighth Amendment “to take reasonable 25 measures to guarantee the safety of inmates, which has been interpreted to include a duty 26 to protect prisoners”) (citing Farmer v. Brennan, 511 U.S. 825, 832-33 (1994)); Robins v. 27 Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995) (an officer’s failure to intervene and 28 protect can violate a prisoner’s Eighth Amendment rights). 1 M. Leave to Amend 2 Because the Court has determined that some of Plaintiff’s claims survive the sua 3 sponte screening process, the Court will give Plaintiff the opportunity to either: (1) 4 notify the Court of the intent to proceed with his Eighth Amendment claims against 5 Bravo, Gene, Ugalde, Ausbury, Silva, Shellano, Ayala, Solis, and Zuniga; or (2) file an 6 amended pleading correcting all the deficiencies of pleading identified by the Court in 7 this Order. 8 Plaintiff must choose one of these options within forty-five (45) days from the 9 date this Order is filed. If Plaintiff chooses to proceed as to his claims against Bravo, 10 Gene, Ugalde, Ausbury, Silva, Shellano, Ayala, Solis, and Zuniga only, the Court will 11 issue an Order directing the U.S. Marshal to effect service of his FAC on Defendants 12 Bravo, Gene, Ugalde, Ausbury, Silva, Shellano, Ayala, Solis, and Zuniga and dismiss the 13 remaining claims and defendants. 14 If Plaintiff chooses to file an amended pleading, he may not re-allege claims that 15 the Court has dismissed without leave to amend. In addition, Plaintiff may not add any 16 new defendants or claims in his amended pleading. 17 III. Conclusion and Orders 18 For the reasons explained, the Court: 19 1. The Court DISMISSES all claims against all Defendants, with the exception 20 of Plaintiff’s Eighth Amendment claims against Defendants Bravo, Gene, Ugalde, 21 Ausbury, Silva, Shellano, Ayala, Solis, and Zuniga, for failing to comply with Rule 8 and 22 for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). 23 2. The Court GRANTS Plaintiff forty-five (45) days leave from the date of this 24 Order in which to either: (1) Notify the Court of the intention to proceed with the Eighth 25 Amendment claims against Bravo, Gene, Ugalde, Ausbury, Silva, Shellano, Ayala, Solis, 26 and Zuniga only; or (2) File an Amended Complaint which cures all the deficiencies of 27 pleading noted. Plaintiff’s Amended Complaint must be complete in itself without 28 reference to his original pleading. Defendants not named and any claims not re-alleged 1 ||in the Amended Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; Hal 2 || Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 3 || (“[A]n amended pleading supersedes the original.”); Lacey, 693 F.3d at 928 (noting that 4 ||claims dismissed with leave to amend which are not re-alleged in an amended pleading 5 ||may be “considered waived if not repled.”’). 6 IT IS SO ORDERED. 7 || DATED: April 10, 2020 Lita tell 8 HON. MICHAEL M. ANELLO 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28