(PC) Kamilchu v. Sacramento County Sheriff's

Opinion

1 2 3 4 5 6 9 10 EDUARD KAMILCHU, No. 2:18-cv-3266 DB P 11 Plaintiff, 12 v. ORDER et al., 14 Defendants. 15 16 Plaintiff is a county inmate proceeding pro se with a civil rights action pursuant to 42 17 U.S.C. § 1983. Plaintiff claims his rights were violated in connection with a 2010 driving under 18 the influence (“DUI”) arrest and related court proceedings. Presently before the court is 19 plaintiff’s amended complaint for screening. (ECF No. 14.) For the reasons set forth below, the 20 court will dismiss the amended complaint with leave to amend. 22 I. Legal Standards 23 The court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 25 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 26 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 27 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 28 U.S.C. § 1915A(b)(1) & (2). 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 3 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 6 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 7 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 8 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 9 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 10 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 11 However, in order to survive dismissal for failure to state a claim a complaint must contain more 12 that “a formulaic recitation of the elements of a cause of action;” it must contain factual 13 allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 14 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 15 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 16 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 17 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 18 The Civil Rights Act under which this action was filed provides as follows: 19 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 20 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 21 or other proper proceeding for redress. 22 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 23 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 24 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 25 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 26 1983, if he does an affirmative act, participates in another’s affirmative acts or omits to perform 27 an act which he is legally required to do that causes the deprivation of which complaint is made.” 28 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 1 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 2 their employees under a theory of respondeat superior and, therefore, when a named defendant 3 holds a supervisorial position, the causal link between him and the claimed constitutional 4 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 5 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 6 concerning the involvement of official personnel in civil rights violations are not sufficient. See 7 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 8 II. Allegations in the Complaint 9 Plaintiff has named Sacramento County as the only defendant in his amended complaint. 10 (ECF No. 14 at 1-2.) As set forth in detail below, plaintiff has identified three separate claims in 11 the amended complaint. Claim one repeats the allegations presented in the original complaint and 12 claims two and three contain new allegations that were not alleged in the original complaint. 13 A. Claim I – August 15, 2010 Arrest 14 Plaintiff states that on August 15, 2010 he was driving his older brother in rental car 15 because his car was being serviced at the dealership. (Id. at 4.) He alleges that he lost control of 16 the car and hit a curb. He called a tow truck and a family member to pick him and his brother up. 17 He states two CHP officers arrived and made a report. He claims officer Blankenship was 18 holding his driver’s license and asked him if he was Russian. Plaintiff stated, “What difference 19 would it make.” Plaintiff claims that after his reply Blankenship accused him of driving under the 20 influence. Plaintiff states that he passed a field sobriety test and breathalyzer, but Blankenship 21 decided plaintiff needed to be taken to jail for a blood draw and that his brother would be arrested 22 for being drunk in public. 23 Plaintiff claims that while he was in the back of the car, Blankenship turned off his 24 recording device and made racist and threatening statements. (Id. at 5.) He claims that after 25 arriving at the jail and having his blood drawn he was led into a room where he was searched. He 26 states he was then assaulted by approximately seven deputies. He alleges that while this was 27 happening the CHP officer that ordered the assault was looking through the window with a grin 28 //// 1 on his face. Plaintiff also claims officers stated, “‘You’re lucky we didn’t bring you to a back 2 room with no cameras and killed you.’” 3 He further states that he had an attorney subpoena video footage of several incidents that 4 night, including footage of the CHP officer’s handling the blood draw. He claims his blood vial 5 was tossed into the trash bin, another one was picked up, and plaintiff’s name label was stuck 6 onto the other vial. 7 Plaintiff claims that his public defender Sunny Paley told him his trial was set on March 7, 8 2014. (Id. at 6.) Plaintiff alleges he moved out of California after the arrest and returned to 9 Sacramento for the trial. When he arrived, he did not see his attorney, he was not able to reach 10 her by phone, and his name was not on the calendar. He claims a bailiff instructed him to wait. 11 He alleges that once he was the last person left in the courtroom, several deputies blocked 12 the exit. (Id.) He claims the judge stepped down and a new judge sat down. He claims he does 13 not recall if the district attorney or other court personnel were ordered to leave or replaced by 14 others. He was told to stand in front of the judge without his attorney. He also claims the judge 15 stated, “‘Mr. Kamilchu you have no rights, you won[’]t be getting a jury trial, we can incarserate 16 you indefinitely without a cause. If you don’t plead guilty to these charges.’” Plaintiff alleges 17 that he was forced and intimidated by the county to plead guilty to the charges. 18 B. Claim II and III 19 Plaintiff alleges that on November 13, 2018, he was transported from jail to family court. 20 (Id. at 7.) Plaintiff states he was shackled by his ankles and wrists and left “in a cold/hard holding 21 tank for about three hours.” Plaintiff alleges he was never called out to court. Plaintiff states: “I 22 feel like the sheriff’s department has cast [judgment] on me do to my charges and prior incidents 23 with sheriffs department and by the sheriffs department staff ‘using my physical disabilities for 24 retaliation harassment purposes’ to keep me from my rights to attend my family court hearings.” 25 Plaintiff states on July 15, 2019, he was again called out for court and placed in a holding 26 tank. (Id. at 8.) He alleges that he was one of the last ones to be called out to court because he 27 had to limp up two flights of stairs. He states that by the time he arrived his mind was on his pain 28 rather than the court proceedings. Plaintiff states that because he was forced to sit on a metal 1 bench in tiny crowded cells for approximately seven or eight hours and climb two flights of stairs 2 on July 15, 2019 he was unable to go to court on July 17, 2019 because of his pain and 3 immobility. 4 Plaintiff claims jail officials know he should not use the stairs because he has a spinal 5 injury, a hernia, and foot injuries. Plaintiff also claims jail officials are using information from 6 the grievance process, that should be confidential, to harass and manipulate rather than provide 7 help. 8 C. Claim III 9 Plaintiff claims he requires to be housed on a lower tier and have a lower bunk. (Id. at 9.) 10 Plaintiff states that at some point he was housed with another inmate that also required a lower 11 bunk. Plaintiff informed officers but was not moved to a different cell. Plaintiff later fell out of 12 the bunk. He was seen by a doctor; however, he claims that he did not receive the prescribed 13 treatment. Plaintiff alleges “the SCSD or Sac County has been using” his injuries to manipulate, 14 harass, and torture him. He also claims they have used his injury to restrict his access to the 15 courts. 16 III. Does Plaintiff State a Claim under § 1983? 17 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) the defendant 18 acted under color of state law, and (2) the defendant deprived him of rights secured by the 19 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 20 2006); West v. Atkins, 487 U.S. 42, 48 (1988) (to state a claim under § 1983, a plaintiff “must 21 allege a violation of a right secured by the Constitution and laws of the United States, and must 22 show that the alleged deprivation was committed by a person acting under color of state law”). 23 A. Monell Claim 24 In the amended complaint, plaintiff has named only Sacramento County as a defendant. 25 (ECF No. 12 at 1-2.) 26 The U.S. Supreme Court has held that local governmental entities, e.g., cities, counties, 27 and local officers sued in their official capacity, are “persons” for purposes of section 1983, 28 rendering them directly liable for constitutional violations if carried out pursuant to local policies 1 or customs. McMillian v. Monroe County, 520 U.S. 781, 784-85 (1997); Monell v. New York 2 City Dept. of Social Services, 436 U.S. 658, 690-92 (1978). Accordingly, the County may be 3 considered a person under § 1983. However, “a municipality cannot be held liable under § 1983 4 on a respondeat superior theory.” Monell, 436 U.S. at 691. “[A] municipality can be found liable 5 under § 1983 only where the municipality itself causes the constitutional violation at issue. 6 Respondeat superior or vicarious liability will not attach under § 1983.” Collins v. City of 7 Harker Heights, 503 U.S. 115, 123 (1992) (original emphasis), citing Monell, 436 U.S. at 694-5. 8 Accordingly, “a local government may not be sued under § 1983 for an injury inflicted solely by 9 its employees or agents. Instead, it is when execution of a government’s policy or custom, 10 whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent 11 official policy, inflicts the injury that the government as an entity is responsible under §1983.” 12 Monell, 436 U.S. at 694. A local government entity may also “be liable if it had a policy or 13 custom of failing to train its employees and that failure to train caused the constitutional 14 violation.” Collins, 503 U.S. at 123. 15 “Proof of a single incident of unconstitutional activity is not sufficient to impose liability 16 under Monell, unless proof of the incident includes proof that it was caused by an existing, 17 unconstitutional municipal policy, which can be attributed to a municipal policymaker. 18 Otherwise the existence of the unconstitutional policy, and its origin, must be separately proved.” 19 City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). 20 Plaintiff’s complaint fails to identify any official policy or custom that caused the alleged 21 constitutional violations. Plaintiff has claimed that his rights were violated by various individual 22 employees, but he has not presented any allegations showing there was an existing policy or 23 custom those employees were following that caused the violations. Thus, the allegations fail to 24 state a claim against Sacramento County. Davis v. City of Ellensburg, 869 F.2d 1230, 1233 (9th 25 Cir. 1989) (“A plaintiff cannot prove the existence of a municipal policy or custom based solely 26 on the occurrence of a single incident of a municipal policy or custom based solely on the 27 occurrence of a single incident of unconstitutional action by a non-policymaking employee.”). 28 //// 1 B. New Claims Regarding Allegations Related to Conditions of Confinement 2 For the first time in the amended complaint plaintiff has stated allegations related to his 3 current confinement. (ECF No. 14 at 7-9.) Plaintiff claims he was subjected to harsh conditions 4 while waiting to attend family court and he was injured when he fell out of bed and has not 5 received proper medical treatment. 6 Plaintiff may not change the nature of his suit by alleging new, unrelated claims. George 7 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Additionally, separate claims against different 8 defendants belong in different suits. See Id. (“Unrelated claims against different defendants 9 belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple 10 defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees—for the 11 Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner 12 may file without prepayment of the required fees.) (citing 28 U.S.C. § 19195(g)). 13 Accordingly, the court will not address the allegations presented in claims two and three. 14 They were not mentioned in his original complaint and they do not relate to the events described 15 in the original complaint and repeated again in claim one of amended complaint. If plaintiff feels 16 that his rights have been violated based on the allegations contained in claims two and three he 17 may file a separate civil rights action. 18 IV. Filing an Amended Complaint 19 As set forth above, plaintiff has failed to state a cognizable claim. However, he will be 20 given the opportunity to file an amended complaint. In any amended complaint, plaintiff must 21 adhere to the following standards for stating claims for relief under § 1983. 22 • Plaintiff’s claims must be set forth in short and plain terms, simply, concisely and 23 directly. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Fed. R. 24 Civ. P. 8. 25 • Plaintiff must clearly identify each defendant and describe just what that defendant 26 did that violated his constitutional rights. To state a claim for relief under §1983, 27 plaintiff must link each named defendant with some affirmative act or omission 28 that demonstrates a violation of plaintiff’s federal rights. 1 • Plaintiff must identify as a defendant only persons who personally participated in a 2 substantial way in depriving plaintiff of a federal constitutional right. Johnson v. 3 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 4 deprivation of a constitutional right if he does an act, participates in another’s act 5 or omits to perform an act he is legally required to do that causes the alleged 6 deprivation). “Vague and conclusory allegations of official participation in civil 7 rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 268 8 (9th Cir. 1982) (citations omitted). 9 • Plaintiff must make a short, plain statement of the facts supporting each claim. 10 See Fed. R. Civ. P. 8(a). The complaint must contain more that a formulaic 11 recitation of the elements of a cause of action. Bell Atlantic Corp., 550 U.S. at 12 555. 13 • Plaintiff may allege multiple claims against a single defendant. Fed. R. Civ. P. 14 18(a). Each separate claim should be contained in a separate, numbered set of 15 paragraphs. However, Rule 20(a)(2) permits a plaintiff to sue multiple defendants 16 in the same action only if “any right to relief is asserted against them jointly, 17 severally, or in the alternative with respect to or arising out of the same 18 transaction, occurrence, or series of transactions or occurrences,” and there is a 19 “question of law or fact common to all defendants.” “Thus, multiple claims against 20 a single party are fine, but Claim A against Defendant 1 should not be joined with 21 unrelated Claim B against Defendant 2. Unrelated claims against different 22 defendants belong in different suits.” George, 507 F.3d at 607 (citing 28 U.S.C. § 23 1915(g)). Simply alleging a “conspiracy” does not transform unrelated claims 24 into related claims. 25 • Any amended complaint must show the federal court has jurisdiction, the action is 26 brought in the right place, and plaintiff is entitled to relief if plaintiff’s allegations 27 are true. It must contain a request for particular relief. 28 //// 1 e Anamended complaint must be complete in itself without reference to any prior 2 pleading. E.D. Cal. R. 220. Once plaintiff files an amended complaint, the 3 original pleadings are superseded. 4 e Plaintiff must exhaust his administrative remedies before filing suit. 42 U.S.C. § 5 1997e(a). 6 e Finally, plaintiff is advised that by signing an amended complaint, he certifies he 7 has made reasonable inquiry and has evidentiary support for his allegations, and 8 for violation of this rule the court may impose sanctions sufficient to deter 9 repetition by plaintiff or others. Fed. R. Civ. P. 11. 11 In accordance with the above, IT IS HEREBY ORDERED that: 12 1. Plaintiff's amended complaint (ECF No. 14) is dismissed with leave to amend. 13 2. Plaintiff is granted thirty days from the date of service of this order to file an amended 14 complaint that complies with the requirements of the Civil Rights Act, the Federal 15 Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint 16 must bear the docket number assigned to this case and must be labeled “Second 17 Amended Complaint.” 18 3. Failure to comply with this order will result in a recommendation that this action be 19 dismissed. 20 | Dated: November 4, 2019

22 3 .B ORAH BARNES UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 OndenPrsonesCivil Rightkami3266 smn

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