1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SYLVIA R. OLIVEIRA, No. 2: 23-cv-0661 KJN P 12 Plaintiff, 13 v. ORDER 14 SOLANO COUNTY SHERIFF’S CUSTODY DIVISION, et al., 15 Defendants. 16 17 18 Plaintiff is a county prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 19 U.S.C. § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 20 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 21 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 22 Accordingly, the request to proceed in forma pauperis is granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 24 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 27 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 28 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 1 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 2 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 9 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 12 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 13 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 14 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 15 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 16 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 17 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 18 1227. 19 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 20 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 21 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 22 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 23 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 24 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 25 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 26 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 27 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 28 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 1 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 2 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 3 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 4 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 5 Named as defendants are the Solano County Sheriff’s Custody Division and Wellpath. In 6 claim one, plaintiff alleges that she was exposed to lice and scabies while on lockdown. Plaintiff 7 also alleges that she was exposed to mold and mildew while showering. In claim two, plaintiff 8 alleges that defendant Wellpath did not give plaintiff instructions regarding how to protect herself 9 from contracting “this disease.” Plaintiff alleges that she was housed with “this person for the 10 duration of her sickness.” Plaintiff alleges that she had panic attacks out of fear of getting this 11 disease and developed itchy patches. 12 The undersigned first addresses claim one, which appears to be made against defendant 13 Solano County Sheriff’s Custody Division. 14 An agency or department of a municipal entity is not a proper defendant under Section 15 1983. Vance v. Cnty. of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996). Rather, the county 16 itself is the proper defendant. Id. Accordingly, claim one against defendant Solano County 17 Sheriff’s Custody Division is dismissed with leave to file an amended complaint naming Solano 18 County as a defendant. 19 In addition, “[a] municipality cannot be held liable solely because it employs a tortfeasor- 20 or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior 21 theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691(1978). Therefore, counties and 22 municipalities may be sued under § 1983 only upon a showing that an official policy or custom 23 caused the constitutional tort. Id. at 691. 24 “In order to state a claim under Monell, a party must: (1) identify the challenged policy or 25 custom; (2) explain how the policy or custom is deficient; (3) explain how the policy or custom 26 caused the plaintiff harm; and (4) reflect how the policy or custom amounted to deliberate 27 indifference, i.e.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SYLVIA R. OLIVEIRA, No. 2: 23-cv-0661 KJN P 12 Plaintiff, 13 v. ORDER 14 SOLANO COUNTY SHERIFF’S CUSTODY DIVISION, et al., 15 Defendants. 16 17 18 Plaintiff is a county prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 19 U.S.C. § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 20 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 21 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 22 Accordingly, the request to proceed in forma pauperis is granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 24 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 27 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 28 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 1 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 2 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 9 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 12 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 13 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 14 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 15 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 16 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 17 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 18 1227. 19 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 20 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 21 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 22 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 23 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 24 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 25 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 26 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 27 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 28 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 1 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 2 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 3 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 4 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 5 Named as defendants are the Solano County Sheriff’s Custody Division and Wellpath. In 6 claim one, plaintiff alleges that she was exposed to lice and scabies while on lockdown. Plaintiff 7 also alleges that she was exposed to mold and mildew while showering. In claim two, plaintiff 8 alleges that defendant Wellpath did not give plaintiff instructions regarding how to protect herself 9 from contracting “this disease.” Plaintiff alleges that she was housed with “this person for the 10 duration of her sickness.” Plaintiff alleges that she had panic attacks out of fear of getting this 11 disease and developed itchy patches. 12 The undersigned first addresses claim one, which appears to be made against defendant 13 Solano County Sheriff’s Custody Division. 14 An agency or department of a municipal entity is not a proper defendant under Section 15 1983. Vance v. Cnty. of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996). Rather, the county 16 itself is the proper defendant. Id. Accordingly, claim one against defendant Solano County 17 Sheriff’s Custody Division is dismissed with leave to file an amended complaint naming Solano 18 County as a defendant. 19 In addition, “[a] municipality cannot be held liable solely because it employs a tortfeasor- 20 or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior 21 theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691(1978). Therefore, counties and 22 municipalities may be sued under § 1983 only upon a showing that an official policy or custom 23 caused the constitutional tort. Id. at 691. 24 “In order to state a claim under Monell, a party must: (1) identify the challenged policy or 25 custom; (2) explain how the policy or custom is deficient; (3) explain how the policy or custom 26 caused the plaintiff harm; and (4) reflect how the policy or custom amounted to deliberate 27 indifference, i.e. show how the deficiency involved was obvious and the constitutional injury was 28 likely to occur.” Harvey v. City of S. Lake Tahoe, 2012 WL 1232420, at *3 (E.D. Cal. Apr. 12, 1 2012) (citing Young v. City of Visalia, 687 F. Supp. 2d 1141, 1148 (E.D. Cal. 2009). “In other 2 words, a plaintiff must plead (1) that the plaintiff ‘possessed a constitutional right of which [he or 3 she] was deprived; (2) that the municipality had a policy; (3) that this policy amounts to 4 deliberate indifference to the plaintiff’s constitutional right; and, (4) that the policy is the moving 5 force behind the constitutional violation.’” Bradley v. County of San Joaquin, 2018 WL 6 4026996, at *9 (E.D. Cal. Aug. 23, 2018) (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of 7 Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). 8 Assuming plaintiff named Solano County as a defendant in the complaint, the undersigned 9 would find that plaintiff failed to state a potentially colorable claim for relief against defendant 10 Solano County. The complaint does not allege that plaintiff’s exposure to the alleged unsanitary 11 and/or unsafe conditions alleged in claim one were caused by a policy or custom of Solano 12 County that reflected deliberate indifference to the inhabitants of the Solano County Jail. 13 Turning to claim two, the undersigned finds that this claim is made against defendant 14 Wellpath. It appear that defendant Wellpath is a private company contracted with Solano County 15 to provide medical care at the Solano County Jail. See Patino v. County of Monterey, 2023 WL 16 375349, at *1 (N.D. Cal. Jan. 24, 2023) (“The county contracts with defendant Wellpath, LLC 17 (“Wellpath”), a private company, to provide medical, mental health and dental services to inmates 18 at the Jail.”). A private entity under contract to provide medical services to a county jail may be 19 sued under § 1983. Estate of Miller v. County of Sutter, 2020 WL 6392565, at *10 (E.D. Cal. 20 Oct. 30, 2020). Private entities acting under color of law may be liable under Monell. Tsao v. 21 Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012). 22 For the following reasons, the undersigned finds that claim two fails to state a potentially 23 colorable claim for relief against defendant Wellpath. First, plaintiff does not identify the disease 24 she was allegedly exposed to. Second, plaintiff does not allege sufficient facts to state a Monell 25 claim against defendant Wellpath. Plaintiff does not allege that defendant Wellpath failed to 26 provide her with instructions regarding how to avoid contracting the disease pursuant to a policy 27 or custom of defendant Wellpath and that the policy or custom reflected deliberate indifference to 28 the inhabitants of the Solano County Jail. For these reasons, claim two is dismissed with leave to 1 amend. 2 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 3 about which she complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 4 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 5 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 6 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 7 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 8 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 9 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 10 268 (9th Cir. 1982). 11 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 12 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 13 complaint be complete in itself without reference to any prior pleading. This requirement exists 14 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 15 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 16 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 17 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 18 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 19 and the involvement of each defendant must be sufficiently alleged. 20 In accordance with the above, IT IS HEREBY ORDERED that: 21 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 22 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 23 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 24 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 25 Solano County Sheriff filed concurrently herewith. 26 3. Plaintiff’s complaint is dismissed. 27 4. Within thirty days from the date of this order, plaintiff shall complete the attached 28 Notice of Amendment and submit the following documents to the court: ] a. The completed Notice of Amendment; and 2 b. An original of the Amended Complaint. 3 || Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the 4 || Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 5 || also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 6 Failure to file an amended complaint in accordance with this order may result in the 7 || dismissal of this action. 8 | Dated: April 17, 2023 Foci) Aharon 10 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 1] 12 3 Oliv661.14
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 SYLVIA R. OLIVEIRA, No. 2: 23-cv-0661 KJN P 11 Plaintiff, 12 v. NOTICE OF AMENDMENT 13 SOLANO COUNTY SHERIFF’S 14 CUSTODY DIVISION, et al., 15 Defendants. 16 Plaintiff hereby submits the following document in compliance with the court’s order 17 filed______________. 18 _____________ Amended Complaint 19 DATED:
20 ________________________________ 21 Plaintiff
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