ANDREW DECKER, No. 2:22-CV-0258-DAD-DMC Plaintiff, v. ORDER SHANNAH JOHNSON, et al., Defendants. Plaintiff, who is proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s complaint, ECF No. 1. The Court is required to screen complaints brought by litigants who have been granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under this screening provision, the Court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B). Moreover, pursuant to Federal Rule of Civil Procedure 12(h)(3), this Court must dismiss an action if it determines that it lacks subject matter jurisdiction. Because Plaintiff has been granted leave to proceed in forma pauperis, the Court will screen the complaint pursuant to § 1915(e)(2). Pursuant to Rule 12(h)(3), the Court will also consider as a threshold matter whether it has subject-matter jurisdiction. Plaintiff names the following as Defendants: (1) City of Redding (“City”), (2) City of Redding Police Department (“Department”), (3) Shannah Johnson, Police Officer with Department, (4) Jacob Ruiz, Police Officer with Department, (5) Kristen Schreder, Mayor of City, (6) William Shueller, Chief of Police of Department for City, and (7) Does 1 through 10. See ECF No. 1, pgs. 4-5. Plaintiff claims (1) violations of Fourth, Fifth, and Fourteenth Amendments and California Constitution, Art. I, § 7; (2) violations of California State Unruh Civil Rights Act, Civil Code §§ 52 and 52.1; (3) violations of Fourth, Fifth, and Fourteenth Amendments and California Constitution, Art. I, § 7 pursuant to 42 U.S.C. § 1983, (4) unreasonable force by law enforcement officer in arrest or other seizure (5) excessive use of force, unreasonable arrest or other seizure (6) battery by peace officer, (7) intentional infliction of emotional distress, and (8) negligence. See ECF No. 1, pgs. 10-15. Plaintiff seeks compensatory, general, and special damages, punitive damages, at least $4,000 for each violation of California Civil Code section 52.1 and 52, and declaratory and injunctive relief. See ECF No. 1, pg. 16. Plaintiff claims that Defendants Johnson and Ruiz used unreasonable and unlawful force in effectuating Plaintiff’s arrest for an outstanding warrant and that probable cause for additional charges of resisting arrest were based on false statements by Defendant Johnson made in violation of Plaintiff’s constitutional rights. See generally, ECF No. 1; see also id., pgs. 21- 24.1 Plaintiff alleges he was “attacked without warning or provocation” by Defendants Johnson and Ruiz and that Plaintiff’s right arm was “grabbed and put into a painful hold.” See ECF No. 1, pg. 5. Plaintiff claims he was then “shoved onto the hood” of the police vehicle, which caused mental and physical pain and injury. See id. / / / / / /
1 Plaintiff attaches to his complaint copies of the officer incident report and the warrantless arrest probable cause statement, prepared by Defendant Johnson, which details the events on which Plaintiff bases his allegations. The Court takes judicial notice of both documents because each is a document upon which the complaint necessarily relies. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). As to Plaintiff’s claims against the City and Department, the complaint alleges that, despite the City receiving money for implementation of a body-camera program in 2017, Department allegedly refuses to use such recording devices. See id. at 7. According to Plaintiff, Department has a “culture of ‘Back the Blue,’” which is depicted in its use of a modified U.S. flag; the modified flag is a custom in a “‘thin blue line’” culture in which “police see themselves as gatekeeper or checkpoint, to social order.” Id. at 8. Plaintiff claims Department operates under policies and customs that are “intended to veil and shield their conduct” and has a policy of refusing to use any recording devices in performance of law enforcement duties. Id. at 7. Plaintiff alleges that it is an “officer’s statement on a piece of paper that can lead to prosecution, and nothing else.” Id. There alleges that there is a “long-standing public perception of [the Department] engaging in a practice of biased enforcement against lower-income persons” and “targeting people. . . .” Id. at 8. Plaintiff states that he “has no reasonable doubt” that if he drove a nice car or had been wearing a shirt and tie, he “likely would not have even been pulled over for expired registration.” Id. Finally, in support of his state law claims for battery and intentional infliction of emotional distress, Plaintiff alleges that when Defendants Johnson and Ruiz used excessive force in effecting Plaintiff’s arrest, such force constituted harmful and/or offensive conduct. See id. at 13. In considering whether a complaint states a claim, the Court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). However, in order to survive dismissal for failure to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). The mere possibility of misconduct will not suffice to meet this standard. See id. at 679. As to Defendants Johnson and Ruiz, the Court finds that the complaint states a cognizable claim for excessive force. Plaintiff alleges that after exiting the vehicle, Defendant Ruiz “came from behind” and “grabbed [Plaintiff’s] right arm in an excruciatingly painful hold” and that, at the time, Plaintiff was under doctor’s care for an injured shoulder. Thereafter, Defendant Johnson “grabbed” Plaintiff’s “left arm to put in a cuff” as Plaintiff was “begging [Defendants Johnson and Ruiz] to “stop assaulting” him. Instead of releasing pressure on his injured shoulder, Defendant Ruiz applied more pressure and Plaintiff screamed in pain. Further, Plaintiff asserts that the handcuffs were applied so tightly “as to cause [Plaintiff] pain and distress” and that “it was impossible to put anything between the cuffs and his wrists, let alone a finger,” which caused tingling and numbing and left marks on his skin. Plaintiff was then placed in the back of the squad car and all demands for medical care resulting from the alleged excessive force in arresting Plaintiff and application of tight-fitting handcuffs by Defendants were denied. Because Plaintiff has failed to allege any specific facts as to any of the named defendants other than Johnson and Ruiz, the Court finds Plaintiff’s complaint deficient under Rule 8(a). Except for Defendants Johnson and Ruiz, Plaintiff fails to plead facts sufficient to allow the Court to draw reasonable inferences that each named defendant is liable for the alleged wrongdoing and that Plaintiff is entitled to relief beyond mere speculation. The complaint also fails to contain sufficiently specific facts to put the other named defendants on notice of the nature of Plaintiff’s claims against them. The Court discusses these and other deficiencies in more detail below. A. Link to Named Defendants To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual connection or link between the actions of the named defendants and the alleged deprivations. See Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to each individual defendant’s causal role in the alleged constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Here, Plaintiff’s vague and conclusory statements are insufficient. Plaintiff has failed to allege specific facts as to how each named Defendant, other than Defendants Johnson and Ruiz, are involved as to each alleged wrongdoing, how the conditions complained of have resulted in a deprivation of his constitutional rights, or set forth some link or connection between each Defendant and the claimed deprivation. / / / / / / / / / B. Municipal Liability Plaintiff has named the City of Redding and City of Redding Police Department as Defendants. Municipalities and other local government units are among those “persons” to whom § 1983 liability applies. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). Counties and municipal government officials are also “persons” for purposes of § 1983. See id. at 691; see also Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989), overruled on other grounds by Bull v. City & Cnty. of San Francisco, 595 F.3d 964, 981 (9th Cir. 2010). A local government unit, however, may not be held responsible for the acts of its employees or officials under a respondeat superior theory of liability. See Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997). Thus, municipal liability must rest on the actions of the municipality, and not of the actions of its employees or officers. See id. To assert municipal liability, the plaintiff must allege that the constitutional deprivation complained of resulted from a policy or custom of the municipality. See id. Official policy includes “the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). Generally, a claim against a local government unit for municipal or county liability requires an allegation that “a deliberate policy, custom, or practice . . . was the ‘moving force’ behind the constitutional violation . . . suffered.” Galen v. County of Los Angeles, 477 F.3d 652, 667 (9th Cir. 2007); City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). Alternatively, municipal liability may be imposed where an omission led to the constitutional violation by its employee. See Nathaniel v. City of Redding, No. 2:19-CV- 00388-CKD-P, 2019 WL 2410510, at *2 (E.D. Cal. June 7, 2019). To establish municipal liability under this theory, the “plaintiff must show that the municipality’s deliberate indifference led to its omission and that the omission caused the employee to commit the constitutional violation.” Id. (citation and quotations omitted). Deliberate indifference requires Plaintiff to show that the municipality had either actual or constructive notice that its omissions would likely result in a constitutional violation. See id. / / / Under either theory, “to be entitled to the presumption of truth,” Plaintiff must establish an affirmative causal link between the municipal policy or practice and the alleged constitutional violation. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011); See Canton, 489 U.S. at 385, 391-92; Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996); Oviatt v. Pearce, 954 F.2d 1470, 1473-74 (9th Cir. 1992)). Plaintiff must allege with particularity those acts which defendants engaged in that support plaintiff’s claims. See Jones v. Cmty. Redv. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff’s complaint is deficient as to the named municipal defendants. Plaintiff makes no allegations regarding any municipal policy, custom, or practice that could support a municipal liability claim. Instead, Plaintiff’s factually supported allegations are only against the individual officers whom he claims used excessive force against him. Plaintiff makes vague and conclusory statements that the Department operates under policies and customs that are “intended to veil and shield their conduct” and has a policy of “refusing to use any recording devices in performance of law enforcement duties.” Plaintiff also pleads no facts regarding any City policy, custom, or practice that deprived Plaintiff of his constitutional rights. Plaintiff’s general contentions are insufficient. Plaintiff must plead with specificity how: (1) Plaintiff’s constitutional deprivation resulted from a particular policy, custom, or practice of the local government (2) that policy was based on the actual decisions and acts of its policymakers, and (3) those practices are persistent and widespread. Alternatively, Plaintiff must show that the municipality was deliberately indifferent as to Plaintiff’s constitutional rights due to either actual or constructive notice that its omissions would likely result in unlawful conduct. At this time, Plaintiff’s complaint fails to state a claim of municipal liability against the City of Redding and the Redding Police Department. / / / / / / / / / / / / C. Supervisor Liability To the extent that Defendants Schreder, Mayor with City of Redding and Defendant William Shueller, Chief of Police with City of Redding, are named in the complaint as supervisory personnel, supervisory personnel are generally not liable under § 1983 for the actions of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no respondeat superior liability under § 1983); Ashcroft, 556 U.S. at 677 (In a § 1983 suit, “masters do not answer for the torts of their servants”). A supervisor is only liable for the constitutional violations of subordinates if the supervisor participated in or directed the violations. See id.; see also Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989) (dismissing supervisory liability claim where the complaint included “no allegation that the police chief was personally involved in the incident”); Rodriguez v. City of Modesto, 535 F. App’x 643, 646 (9th Cir. 2013) (finding supervisor liability claim dismissed in error because the supervisor was the ranking officer on the scene and personally directed the arresting officers). A supervisory defendant cannot be liable based only on knowledge and acquiescence in a subordinate’s unconstitutional conduct because government officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct and not the conduct of others. See Ashcroft, 556 U.S. at 676. Supervisory personnel who implement a policy so deficient that the policy itself is a repudiation of constitutional rights and the moving force behind an alleged constitutional violation may be liable, even where such personnel do not overtly participate in the offensive act. See Redman v. Cty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994). When a defendant holds a supervisory position, the causal link between such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey, 673 F.2d at 268. “[A] plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the constitution.” Ashcroft, 662 U.S. at 676. Plaintiff’s complaint fails to contain any allegations to support the liability of either Defendant Schreder, as Mayor, or Defendant Shueller, as Chief of Police. Plaintiff’s complaint is empty of specific facts showing Defendants’ personal involvement, either by way of their own actions or implementation of a constitutionally deficient policy, which caused Plaintiff harm or violated his rights. D. State Law Claims Under California Civil Code sections 52 and 52.1 Plaintiff asserts state law claims under the California State Unruh Civil Rights Act, California Civil Code sections 52 and 52.1 against all Defendants. The California Unruh Civil Rights Act prohibits the denial of access to “the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever” based on protected classifications of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.” Cal. Civ. Code § 51(b). To succeed on an Unruh Act claim, a plaintiff must allege facts that demonstrate “willful, affirmative misconduct” and provide more than “the disparate impact of a facially neutral policy on a particular group.” Cullen v. Netflix, 880 F. Supp. 2d 1017, 1024 (N.D. Cal. 2012); see Ashcroft, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”); see also Rodriguez v. City of Modesto, 535 F. App’x 643, 645 (9th Cir. 2013) (affirming dismissal of state law civil rights claim as conclusory for failing to plead facts sufficient to support a claim for relief); Divino Group LLC v. Google LLC, No. 19-CV-04749-VKD, 2022 WL 4625076, at *8 (N.D. Cal. Sept. 30, 2022) (“[A] plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act.”) (citation and quotation marks omitted). Here, Plaintiff alleges only that there is a “long-standing public perception of [the Department] engaging in a practice of biased enforcement against lower-income persons” and “targeting people without anywhere else to go. . . .”; Plaintiff “has no reasonable doubt” that if he drove a nice looking car or had been wearing a shirt and tie, he “likely would not have even been pulled over for expired registration.” Wealth is not a protected classification and Plaintiffs allegations are conclusory. Thus, Plaintiff has failed to plead facts sufficient to state a claim for relief under California State Unruh Civil Rights Act. Il. CONCLUSION Because it is possible that the deficiencies identified in this order may be cured by amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (th Cir. 2000) (en banc). Plaintiff □□ informed that, as a general rule, an amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be complete in itself without reference to any prior pleading. See id. If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of Plaintiffs constitutional nghts. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how each named defendant is involved, and must set forth some affirmative link or connection between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Because the complaint appears to otherwise state cognizable claims, if no amended complaint is filed within the time allowed, the Court will issue findings and recommendations that the claims identified herein as defective be dismissed, as well as such further orders as are necessary for service of process as to the cognizable claims. Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a first amended complaint within 30 days of the date of service of this order. Dated: October 17, 2022 Co UNITED STATES MAGISTRATE JUDGE 10