(PS) Boutros v. Hony

Opinion

1 2 3 4 5 6 7 10 11 GEORGE BOUTROS, No. 2:19-CV-1080-JAM-DMC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CORY HONY, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding pro se, brings this civil rights action. Pending before 18 the court are: (1) plaintiff’s motion for an “emergency restraining order” (ECF No. 8); (2) 19 defendants’ motion to strike (ECF No. 23); and (3) defendants’ motion to dismiss (ECF No. 20 24). 21 23 This action proceeds on plaintiff’s original complaint.1 Plaintiff names the 24 following as defendants: (1) Cory Hony, the Butte County Sheriff; (2) J.D. Jones, the Butte 25 County Undersheriff; (3) Smith, a Butte County Deputy Sheriff; and (4) Dick Ramsey, the 26 Butte County District Attorney. 27 1 The court was not required to screen plaintiff’s pro se complaint because he paid 28 the filing fees and is not proceeding in forma pauperis. 1 Plaintiff states that he was attacked by his “angry white” neighbor on August 2 18, 2018. Plaintiff claims he was “creatively made a suspect by introducing the mental illness 3 factor.” According to plaintiff, he complained and requested an internal investigation. 4 Plaintiff states that, “shortly thereafter” he was arrested in a “51/50” hold for mental illness. 5 Plaintiff claims this was done in retaliation for requesting an internal investigation regarding 6 the August 2018 incident. 7 Next, plaintiff alleges that he reported “another incident” to the Butte County 8 Sheriff on September 2, 2018. According to plaintiff, he was threatened by a neighbor with a 9 gun. Plaintiff states there was no follow-up on his report. 10 Plaintiff further asserts that his residence was robbed several times and his 911 11 calls for emergency assistance went unanswered. Plaintiff states he gave Butte County 12 Sheriff’s Department officer Cooper a meth pipe that was left by the robber and that plaintiff 13 was later arrested for possession of the pipe. 14 According to plaintiff, he was denied protection and falsely arrested by the 15 Butte County Sheriff’s Department. 16 Plaintiff’s complaint makes no specific references to any of the named 17 defendants. 18 20 A. Motion to Dismiss 21 In considering a motion to dismiss, the court must accept all allegations of material 22 fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must 23 also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 24 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 25 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or 26 doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 27 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, 28 need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se 1 pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. 2 Kerner, 404 U.S. 519, 520 (1972). 3 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 4 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 5 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 6 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 7 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 8 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 9 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 10 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 11 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 12 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 13 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 14 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 15 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 16 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 17 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 18 In deciding a Rule 12(b)(6) motion, the court generally may not consider materials 19 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 20 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) 21 documents whose contents are alleged in or attached to the complaint and whose authenticity no 22 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 23 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 24 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 25 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 26 1994). 27 / / / 28 / / / 1 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 2 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 3 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 4 Defendants here contend that the plaintiff’s complaint must be dismissed because: 5 (1) defendant Ramsey is entitled to absolute prosecutorial immunity; (2) the Butte County 6 Sheriff’s Department defendants owed plaintiff no duty of protection; and (3) plaintiff’s 7 allegations fail to state a cognizable claim for relief against any named defendant. Defendants’ 8 last argument is dispositive. 9 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 10 connection or link between the actions of the named defendants and the alleged deprivations. See 11 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 12 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 13 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 14 an act which he is legally required to do that causes the deprivation of which complaint is made.” 15 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 16 concerning the involvement of official personnel in civil rights violations are not sufficient. See 17 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 18 specific facts as to each individual defendant’s causal role in the alleged constitutional 19 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 20 Supervisory personnel are generally not liable under § 1983 for the actions of their 21 employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no 22 respondeat superior liability under § 1983). A supervisor is only liable for the constitutional 23 violations of subordinates if the supervisor participated in or directed the violations. See id. The 24 Supreme Court has rejected the notion that a supervisory defendant can be liable based on 25 knowledge and acquiescence in a subordinate’s unconstitutional conduct because government 26 officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct 27 and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory 28 personnel who implement a policy so deficient that the policy itself is a repudiation of 1 constitutional rights and the moving force behind a constitutional violation may, however, be 2 liable even where such personnel do not overtly participate in the offensive act. See Redman v. 3 Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). When a defendant holds a 4 supervisory position, the causal link between such defendant and the claimed constitutional 5 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 6 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 7 Here, the allegations of plaintiff’s complaint make no reference to any of the four 8 named defendants. Mere designation of defendants in the caption of the complaint, without 9 specific allegations connecting the alleged wrongful acts to specified defendants, doses not satisfy 10 the requirements for a proper pleading under Monell. As such, the complaint here fails to 11 establish a causal connection between any defendant and a violation of plaintiff’s civil rights. 12 Plaintiff’s complaint should be dismissed, with leave to correct the deficiencies through an 13 amended pleading. 14 B. Motion for Injunctive Relief and Motion to Strike 15 Plaintiff seeks an “emergency restraining order” requiring the “Criminal DA of 16 Butte County . . . to remove all my pending legal matters from his jurisdiction. . . .” Defendants 17 seek an order striking plaintiff’s motion. 18 The legal principles applicable to requests for injunctive relief, such as a 19 temporary restraining order or preliminary injunction, are well established. To prevail, the 20 moving party must show that irreparable injury is likely in the absence of an injunction. See 21 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. 22 Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser 23 standard by focusing solely on the possibility of irreparable harm, such cases are “no longer 24 controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 25 1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is 26 likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an 27 injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public 28 interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374). The court cannot, 1 however, issue an order against individuals who are not parties to the action. See Zenith Radio 2 Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). Moreover, if an inmate is seeking 3 injunctive relief with respect to conditions of confinement, the prisoner’s transfer to another 4 prison renders the request for injunctive relief moot, unless there is some evidence of an 5 expectation of being transferred back. See Prieser v. Newkirk, 422 U.S. 395, 402-03 (1975); 6 Johnson v. Moore, 948 F.3d 517, 519 (9th Cir. 1991) (per curiam). 7 Here, plaintiff has not made a showing that he is entitled to injunctive relief. As 8 discussed above, plaintiff has no current likelihood of success on the merits of his case because he 9 has not stated any cognizable claims against any named defendant. Moreover, plaintiff has not 10 articulated the possibility of any irreparable harm. For these reasons, plaintiff’s motion for 11 injunctive relief should be denied on the merits and defendants’ motion to strike should be denied 12 as moot. 13 15 Based on the foregoing, the undersigned recommends that: 16 1. Defendants’ motion to dismiss (ECF No. 24) be granted; 17 2. Plaintiff’s motion for injunctive relief (ECF No. 8) be denied; 18 3. Defendants’ motion to strike (ECF No. 23) be denied as moot; and 19 4. Plaintiff’s complaint be dismissed with leave to amend. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 These findings and recommendations are submitted to the United States District 2 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 3 | after being served with these findings and recommendations, any party may file written objections 4 | with the court. Responses to objections shall be filed within 14 days after service of objections. 5 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 6 | Ylst, 951 F.2d 1153 (th Cir. 1991). 7 8 9 | Dated: November 22, 2019 Ssvcqo_ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28