John Archer v. Stephen Retter

• Court: District Court, C.D. California
• Decided: March 18, 2020
• Docket: 2:20-cv-00759
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 JOHN ARCHER, JOVAN NEALY, ) Case No. 2:20-cv-00759-DSF (JDE) ) 12 an MARCUS DIGGS, and 42 ) Absent Unamed Plaintiffs, ) MEMORANDUM AND ORDER 13 ) OF DISMISSAL ) 14 Plaintiffs, ) ) v. ) 15 ) STEPHEN RETTER, DOE’s 1 thru ) 16 10, and CCHCS et al., ) ) 17 ) Defendants. ) 18 19 I. 20 INTRODUCTION 21 On January 24, 2020, John Archer and Marcus Diggs (“Plaintiffs”), 22 prisoners in the custody of the California Department of Corrections and 23 Rehabilitation (“CDCR”) at California State Prison in Lancaster, California 24 (the “Prison”), proceeding pro se, presented for filing a “Civil Rights 25 Complaint,” citing 42 U.S.C. § 1983 (“Section 1983” or “§ 1983”), identifying 26 themselves, Jovan Nealy and “42 Absent Un[n]amed” persons as plaintiffs, 27 although only Plaintiffs signed the Complaint, and Stephen Retter, Does 1-10, 28 and “CCHCS” as defendants. Dkt. 1 (“Complaint”) at 1, 12. 1 On January 29, 2020, after being advised of the defects set forth herein, 2 Plaintiffs were ordered to, within 30 days, either file an amended complaint or 3 file a notice of an intent to proceed with the Complaint as alleged. Dkt. 5 4 (“Order”). Although Plaintiff Archer requested and received additional time to 5 pay the unpaid filing fee (Dkt. 12, 13), Plaintiffs did not seek additional time to 6 otherwise comply with the Order and did not file an amended complaint or a 7 notice of intent within 30 days of the Order. 8 Under 28 U.S.C. § 1915(A)(b), the Court must dismiss the Complaint if 9 it is frivolous or malicious, fails to state a claim on which relief may be 10 granted, or seeks monetary relief against a defendant who is immune from 11 such relief. For the reasons set forth below, the Court finds that the Complaint 12 fails to state a claim upon which relief may be granted and seeks damages from 13 a defendant who is immune from such relief and therefore must be dismissed. 14 II. 15 SUMMARY OF PLAINTIFF’S ALLEGATIONS 16 Plaintiffs filed the Complaint on their own behalf and purportedly on 17 behalf of “500 similarly situated” and seek a declaration “that they have a right 18 not to have their personal and families[’] private Doctor[-]patient privileged 19 information of Health care randomly stored in one place of practice that can be 20 easily sought after and stolen and/or hacked for fraud[u]lent schemes in 21 iden[t]ity fraud used for criminal activities, and further . . . enjoin the 22 enforcement in cooperation of investigation, related to business activities and 23 job procedures that need be ‘Ceased’ because security protocols ha[d] been and 24 [are] a failure.” Complaint, ¶ 1 (ellipsis in original). Plaintiffs seek to proceed 25 “as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure 26 on behalf of themselves and others similarly situated . . . who are incarcerated 27 across the State of California’s 34 prisons.” Id. ¶ 3. Plaintiffs allege defendant 28 Retter is CCHCS’s “CEO Administrator,” Doe #1 is a medical records 1 director, Doe #2 is a health care records technician supervisor, and DOE #3 is 2 a health care records technician. Id. ¶¶ 7-10, 15. Plaintiffs assert that on or 3 about May 20, 2016, CCHCS mailed a letter to members of the class stating 4 that health care and other sensitive information may have been stolen from an 5 unattended laptop. Id. ¶ 14. Plaintiffs claim: “Defendants craft[i]ness has been 6 misleading by fraud[u]lent explanations . . . about how this whole situation 7 came about in the seriousness of security breach in its carelessness to follow 8 work policy and procedures . . .” causing Plaintiffs to, although suffering no 9 physical injury or illness, but instead “fear of fraud” and a “threat of fear by 10 identity theft/fraud.” Id. ¶¶ 16-18. 11 Plaintiffs allege three “causes of action”: (1) “defendants” breached “it’s 12 [sic] duty of security to protect health care information”; (2) “Defendants with 13 malice intent and careless disregard in that of foreseeability and certainty of 14 plaintiffs and others in class similarly situated are in and uneasy position of 15 future risk of identity fraud; and (3) Defendants Stephen Retter CEO and 16 designee administrator of CCHCS” and Does 1-3 “caused injury” to Plaintiffs 17 by not properly monitoring employees and security. Complaint, ¶¶ 19-27. 18 Plaintiffs seek a restraining order, injunctive relief prohibiting “defendants” 19 from “harassment to become a [nuisance] for filing the lawsuit” and damages, 20 among other things. Id. at pp. 11-12. 21 III. 22 STANDARD OF REVIEW 23 Under 28 U.S.C. § 1915(A)(b), a district court must dismiss a complaint 24 by a prisoner seeking redress against a governmental entity or official when 25 such a complaint fails to state a claim upon which relief may be granted or 26 seeks damages from a defendant immune from such relief. A complaint may 27 be dismissed for failure to state a claim for two reasons: (1) lack of a cognizable 28 legal theory, or (2) insufficient facts under a cognizable legal theory. Balistreri 1 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (as amended). 2 When screening a complaint to determine whether it states a viable claim, 3 courts apply the same standard used to evaluate a motion to dismiss under 4 Federal Rules of Civil Procedure Rule 12(b)(6) (“Rule 12(b)(6)”). See Rosati v. 5 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (per curiam). 6 A complaint must allege enough facts to provide both “fair notice” of the 7 claim being asserted and “the grounds upon which it rests.” Bell Atl. Corp. v. 8 Twombly, 550 U.S. 544, 555 & n.3 (2007) (citation omitted); see Fed. R. Civ. 9 P. 8(a). While detailed factual allegations are not required, a complaint with 10 “unadorned, the-defendant-unlawfully-harmed-me accusation[s]” and “naked 11 assertion[s] devoid of further factual enhancement” would not suffice. Ashcroft 12 v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Instead, 13 “a complaint must contain sufficient factual matter, accepted as true, to state a 14 claim to relief that is plausible on its face. A claim has facial plausibility when 15 the plaintiff pleads factual content that allows the court to draw the reasonable 16 inference that the defendant is liable for the misconduct alleged.” Id. (citation 17 and internal quotation marks omitted). 18 In reviewing a complaint, factual allegations are accepted as true and 19 construed in the light most favorable to the plaintiff. See Lazy Y Ranch Ltd. v. 20 Behrens, 546 F.3d 580, 588 (9th Cir. 2008). But, “the tenet that a court must 21 accept as true all of the allegations contained in a complaint is inapplicable to 22 legal conclusions.” Iqbal, 556 U.S. at 678. Pro se complaints are “liberally 23 construed” and held to a less stringent standard than those drafted by lawyers. 24 See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also Jackson v. 25 Carey, 353 F.3d 750, 757 (9th Cir. 2003). But “a liberal interpretation of a civil 26 rights complaint may not supply essential elements of the claim that were not 27 initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th 28 Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 1 If a complaint is found deficient, a court has discretion to dismiss with or 2 without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 3 2000) (en banc). Leave to amend should be granted if it is possible the defects 4 can be corrected, especially if the plaintiff is pro se. Id. at 1130-31; see also 5 Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that “[a] pro 6 se litigant must be given leave to amend his or her complaint, and some notice 7 of its deficiencies, unless it is absolutely clear that the deficiencies of the 8 complaint could not be cured by amendment”). If, after careful consideration, 9 it is clear that a complaint cannot be cured by amendment, the Court may 10 dismiss without leave to amend. Cato, 70 F.3d at 1105-06; see, e.g., Chaset v. 11 Fleer/Skybox Int’l, LP, 300 F.3d 1083, 1087-88 (9th Cir. 2002) (holding that 12 “there is no need to prolong the litigation by permitting further amendment” 13 where an amendment would not cure the “basic flaw” in the pleading). 14 IV. 15 DISCUSSION 16 A. The Civil Rights Act (42 U.S.C. § 1983) 17 Section 1983 creates a civil right of action for violations of constitutional 18 or other federal rights committed by persons acting under color of law. See 19 Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). It “is not itself a 20 source of substantive rights, but merely provides a method for vindicating 21 federal rights elsewhere conferred.” Crowley v. Nev. ex rel. Nev. Sec’y of 22 State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v. Connor, 490 U.S. 23 386, 393-94 (1989)) (quotation marks omitted). To state a claim, a plaintiff 24 must allege a defendant, acting under color of state law, caused a deprivation 25 of the plaintiff’s federal rights. West v. Atkins, 487 U.S. 42, 48 (1988). 26 A defendant is not liable under Section 1983 absent a causal connection 27 between the defendant’s wrongful conduct and the deprivation. See Iqbal, 556 28 U.S. at 676; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). A 1 plaintiff must “set forth specific facts” establishing the defendant’s “individual 2 fault.” Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988) (“A person 3 deprives another of a constitutional right, within the meaning of section 1983, 4 if he does an affirmative act, participates in another’s affirmative acts, or omits 5 to perform an act which he is legally required to do that causes the deprivation 6 of which [the plaintiff complains].” (alterations in original)). 7 Thus, in a civil rights action, a supervisor is not liable for a subordinate’s 8 conduct under a theory of respondeat superior. See Iqbal, 556 U.S. at 676. 9 Instead, a plaintiff must show there is “sufficient causal connection between 10 the supervisor’s wrongful conduct and the constitutional violation.” Hansen v. 11 Black, 885 F.2d 642, 646 (9th Cir. 1989). To hold a supervisor officer liable, a 12 plaintiff must allege facts showing that the supervisor: (1) personally 13 participated in or directed the alleged violations; (2) knew of the alleged 14 violations and failed to prevent them; or (3) promulgated or “implemented a 15 policy so deficient that the policy ‘itself is a repudiation of constitutional rights’ 16 and is ‘the moving force of the constitutional violation.’” Id. (quoting 17 Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987)). 18 Lastly, “‘liability for negligently inflicted harm is categorically beneath 19 the threshold of constitutional due process.’” Kingsley v. Hendrickson, 135 S. 20 Ct. 2466, 2472 (2015) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 21 849 (1998)); see also Daniels v. Williams, 474 U.S. 327, 331 (1986) 22 (“Historically, this guarantee of due process has been applied to deliberate 23 decisions of government officials to deprive a person of life, liberty, or 24 property”). Negligence is not actionable under Section 1983 as a negligent act 25 by a public official is not an abuse of governmental power but merely a “failure 26 to measure up to the conduct of a reasonable person.” Id. at 332. 27 / / / 28 1 B. The Complaint Fails to State a Claim Upon Which Relief Can Be 2 Granted and Seeks Damages from a Party Immune from Such Relief 3 Here, the Complaint fails for several reasons. First, the three “causes of 4 action” do not, in a non-conclusory fashion, allege what federal statutory or 5 constitutional rights were violated. As noted, to state a claim under Section 6 1983, a plaintiff must allege that a defendant, acting under color of state law, 7 caused a deprivation of the plaintiffs’ federal rights. West, 487 U.S. at 48. The 8 three “causes of action” do not a violation of the Constitution or any federal 9 statute. Further, although the Complaint purports to “incorporate by 10 reference” prior allegations, the nature of any alleged underlying constitutional 11 or statutory claim is unclear. Plaintiffs claim that someone allowed prisoners’ 12 sensitive medical, financial, and personal information to be exposed and 13 possibly stolen, and CDCR or CCHCS officials did not do enough to secure 14 the information or properly advise prisoners of the potential theft. Although 15 the Complaint occasionally makes conclusory references to the First, Eighth, 16 and Fourteenth Amendments, it is unclear how any conduct alleged would 17 violate those provisions. The allegations in the Complaint, other than labels 18 and conclusions, do not raise a right to relief above the speculative level and do 19 not provide “fair notice” of the claim being asserted or “the grounds upon 20 which [that claim] rests” and thus fail to state a claim. See Iqbal, 556 U.S. at 21 678; Twombly, 550 U.S. at 555 & n.3. 22 23 Second, although the Complaint identifies five defendants, one entity 24 and four individuals, it repeatedly makes allegations against collective 25 “defendants” without specifying which defendants did what. In so doing, the 26 Complaint does not provide notice to each defendant of what action or 27 inaction by that defendant caused any alleged constitutional harm. See Leer, 28 844 F.2d at 633. Such vague and conclusory allegations, untethered to the 1 conduct of any specific defendant, are insufficient to state a claim. See Iqbal, 2 556 U.S. at 678; see also Ivey, 673 F.2d at 268. 3 Third, the California Correctional Health Care Services and its officials 4 sued in their official capacities are not subject to claims for damages under 5 Section 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64–66 6 (1989). The CDCR and CCHCS as state agencies are entitled to Eleventh 7 Amendment immunity as to claims for damages. See Brown v. Cal. Dep’t of 8 Corrections, 554 F.3d 747, 752 (9th Cir. 2009). To overcome such immunity, 9 Plaintiffs must show either the State has “unequivocally expressed” its consent 10 to waive its sovereign immunity or Congress must have abrogated it. See 11 Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99–100 (1984). 12 California has consented to be sued in its own courts pursuant to the California 13 Tort Claims Act, but such consent does not constitute consent to suit in federal 14 court. See BV Engineering v. Univ. of Cal., Los Angeles, 858 F.2d 1394, 1396 15 (9th Cir. 1988). And Congress has not abrogated State sovereign immunity 16 against suits under Section 1983. Peltier-Ochoa v. Miele, 2012 WL 4107924, 17 at *1 (C.D. Cal. Aug. 28, 2012). Thus, to the extent the Complaint asserts 18 claims for damages against CCHCS or official capacity claims for damages 19 against CCHCS employees, those claims are barred. 20 Fourth, although the Complaint is sometimes contradictory, the essence 21 22 of Plaintiffs’ claims sound in negligence, with assertions of “carelessness,” a 23 “negligent act,” a “breach of duty,” “careless disregard.” Such allegations are 24 insufficient to show a constitutional violation under Section 1983. See 25 Kingsley, 135 S. Ct. at 24725; County of Sacramento, 523 U.S. at 849 (1998); 26 Daniels, 474 U.S. at 331-32. 27 As the Complaint seeks damages from a party immune from such relief 28 and fails to state a claim on which relief may be granted, it must be dismissed. 1 C. The Complaint’s Class Allegations Are Improper 2 Plaintiffs purport to bring this action as a “class action” on behalf of 3 other inmates as well as themselves. However, “[a] litigant appearing in 4 propria persona has no authority to represent anyone other than himself” in a 5 civil rights action. Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962); see 6 also Weaver v. Wilcox, 650 F.2d 22, 27 (3rd Cir. 1981) (“[A]n inmate does not 7 have standing to sue on behalf of his fellow prisoners. Rather, the prisoner 8 must allege a personal loss and seek to vindicate a deprivation of his own 9 constitutional rights.” (citations omitted)). Further, “[a]lthough a non-attorney 10 may appear in propria persona in his own behalf, that privilege is personal to 11 him. He has no authority to appear as an attorney for others than himself.” 12 C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) 13 (citations omitted); see also McShane v. United States, 366 F.2d 286, 288 (9th 14 Cir. 1966) (same); see also Local Civil Rule 83-2.2.1 (“Any person representing 15 himself or herself in a case without an attorney must appear pro se for such 16 purpose. That representation may not be delegated to any other person -- even 17 a spouse, relative, or co-party in the case.”). 18 Thus, Plaintiffs here may not appear on behalf of or purport to represent 19 the interests of anyone other than themselves. That includes on behalf of Jovan 20 Nealy, who is named as a plaintiff but did not sign the Complaint. 21 Plaintiffs suggested that they would “opt to bowing out” of pro se status 22 23 if the Court appointed counsel. Complaint, ¶ 12. The Court denies Plaintiffs’ 24 suggestion. There is no constitutional right to appointed counsel in a civil 25 rights case. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). 26 Pursuant to 28 U.S.C. § 1915(e)(1), the Court may request an attorney to 27 represent a party who is unable to afford counsel. However, Plaintiffs request 28 that counsel be “appoint[ed].” Section 1915(e)(1) does not authorize 1 appointment of counsel to involuntary service. See Mallard v. U.S. Dist. Court 2 for Southern Dist. of Iowa, 490 U.S. 296, 310 (1989); United States v. 30.64 3 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986). If Plaintiffs are seeking funds 4 from the Court to pay counsel, “[t]he Supreme Court has declared that ‘the 5 expenditure of public funds [on behalf of an indigent litigant] is proper only 6 when authorized by Congress.’” Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 7 1989) (citing United States v. MacCollom, 426 U.S. 317, 321 (1976)). Congress 8 has not provided funds to pay counsel secured under 28 U.S.C. § 1915(e). See 9 30.64 Acres of Land, 795 F.2d at 801. Thus, the Court treats Plaintiffs’ 10 suggestion as a request that the Court request an attorney to represent Plaintiffs 11 without compensation. After an evaluation of both “the likelihood of success 12 on the merits” and Plaintiffs’ abilities “to articulate [their] claims pro se in light 13 of the complexity of the legal issues involved,” Wilborn v. Escalderon, 789 14 F.2d 1328, 1331 (9th Cir. 1986), the Court finds no such exceptional 15 circumstances here. As a result, the request to appoint counsel is denied. 16 The purported class claims are improper, as is Plaintiffs’ effort to act on 17 behalf of Jovan Nealy, who did not sign the Complaint or otherwise appear in 18 this action. The dismissal here is against Plaintiffs John Archer and Marcus 19 Diggs only, as Jovan Nealy never became a party to the action. 20 21 D. Leave to Amend Is Not Warranted Here As noted, although leave to amend a deficient pleading should be 22 granted if the defects could be corrected, especially if the plaintiff is pro se, 23 where it is absolutely clear that further amendment cannot cure the defects, 24 “there is no need to prolong the litigation by permitting further amendment.” 25 Chaset, 300 F.3d at 1088; Cato, 70 F.3d at 1105-06. Here, the Court finds that 26 further leave is not warranted as it is absolutely clear that further leave to 27 amend would not cure the defects. In support of this finding, the Court notes 28 1 Plaintiffs were afforded an opportunity to amend the Complaint (see 2 Order, Dkt. 5, at 8-9), but they chose not to do so. Further, Plaintiffs did not 3 ||ttmely respond to the Order to either file an amended complaint or file a notice 4 ||of an intent to stand on the Complaint, despite a warning that such a failure 5 ||could result in a dismissal of the action. As the Court finds further amendment 6 || would be futile, dismissal will be without leave to amend and with prejudice. 7 V. 8 CONCLUSION AND ORDER 9 For the foregoing reasons, IT IS HEREBY ORDERED THAT: (1) the 10 || action is dismissed with prejudice; and (2) Judgment be entered in accordance 11 || with the foregoing. 12 13 || DATED: March 18, 2020 ) □ Py

15 UNITED STATES DISTRICT JUDGE 16 17 || Presented By: 18 19 : 20 J □□□ D. EARLY : hited States Magistrate Judge 21 22 23 24 25 26 27 28 11