1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES L. JOHNSON JR., No. 2:22–cv–02061–DAD–CKD PS 12 Plaintiff, ORDER GRANTING IFP REQUEST AND DISMISSING WITH LEAVE TO AMEND 13 v. 14 SOLANO COUNTY SHERRIFF, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding without counsel in this action, requests leave to proceed in 18 forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of 19 an action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 Plaintiff’s affidavit makes the required financial showing, and so plaintiff’s request is granted. 21 However, the determination that a plaintiff may proceed without payment of fees does not 22 complete the inquiry. Under the IFP statute, the court must screen the complaint and dismiss any 23 claims that are “frivolous or malicious,” fail to state a claim on which relief may be granted, or 24 seek monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2). Further, the federal 25 court has an independent duty to ensure it has subject matter jurisdiction in the case. See United 26 Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 27 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. 1 Legal Standards 2 To avoid dismissal for failure to state a claim, a complaint must contain more than “naked 3 assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of 4 action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 5 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 6 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, relief 7 cannot be granted for a claim that lacks facial plausibility. Twombly, 550 U.S. at 570. “A claim 8 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 9 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 10 678. When considering whether a complaint states a claim upon which relief can be granted, the 11 court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 12 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan v. 13 Allain, 478 U.S. 265, 283 (1986). 14 Pleadings by self-represented litigants are liberally construed. See Haines v. Kerner, 404 15 U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). 16 Unless it is clear that no amendment can cure the defects of a complaint, a self-represented 17 plaintiff proceeding IFP is ordinarily entitled to notice and an opportunity to amend before 18 dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other 19 grounds by statute as stated in Lopez, 203 F.3d 1122; Franklin v. Murphy, 745 F.2d 1221, 1230 20 (9th Cir. 1984). Nevertheless, leave to amend need not be granted when further amendment 21 would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 22 Complaint 23 Plaintiff’s complaint alleges Eighth Amendment excessive force violations against 24 officers at the Stanton Correction Facility in Fairfield, California. (ECF No. 1 at 4.) Plaintiff 25 names four defendants in this action: (1) “Solano County Sherriffs,” (2) Officer Cynthia Hill, (3) 26 Officer Adrian Torres, and (4) Officer Marc Avecilla. (Id. at 2-3.) Plaintiff alleges that while he 27 was handcuffed at the facility, he was beaten with a nightstick (by Officer Hill), spit on and 28 beaten (by Officer Torres), and uppercut multiple times (by Officer Avecilla). (Id. at 7.) Plaintiff 1 sustained bruises to his lower torso, legs, and back. (Id.) Plaintiff alleges that he was deprived of 2 medical treatment. (Id.) Plaintiff does not indicate whether he was being held as a pre-trial 3 detainee or whether he was serving a criminal sentence during the time of the alleged events. 4 Plaintiff seeks $150,000 in monetary damages for psychological counseling, lost wages, 5 emotional distress, and pain and suffering. (Id). Plaintiff brings this suit against each of the 6 defendants in an “official capacity.” (Id. at 2-3.) 7 Analysis 8 1. Damages are unavailable in actions brought against government officials in their “official 9 capacity.” 10 Plaintiff’s complaint fails to state a claim because damages are not available in actions 11 brought against government officials in their “official capacity.” The Eleventh Amendment bars 12 damages actions against government officials in their official capacity. See e.g., Flint v. 13 Dennison, 488 F.3d 816, 824–25 (9th Cir. 2007). In contrast, damages actions against 14 government officials in an “individual” or “personal” capacity are not barred. Here, plaintiff 15 seeks damages through this lawsuit, yet expressly indicates that the claims against the named 16 officers are brought in an “official capacity.” (Id. at 5 (stating that plaintiff seeks $150,000 for 17 “psychological counseling, lost wages, emotional distress, pain and suffering”), 2-3 (plaintiff 18 checked the “official capacity” box under each of the four named defendants)). Ordinarily, in the 19 absence of any express indication that plaintiff seeks to bring an “official capacity” suit, the court 20 would be inclined to construe this damages action as an “individual capacity” suit. See Mitchell 21 v. Washington, 818 F.3d 436, 442 (9th Cir. 2016) (stating that in situations where a pro se 22 plaintiff’s complaint against a state official seeks damages but fails to select whether the action is 23 an “individual” or “official” capacity suit, the court may presume personal-capacity because an 24 official-capacity suit for damages would be barred). However, because plaintiff expressly 25 indicates that he is bringing an “official capacity” suit, plaintiff’s action cannot be construed as an 26 “individual capacity” suit without further amendment. 27 Accordingly, the court dismisses plaintiff’s complaint for failure to state a claim upon 28 which relief can be granted. Fed. R. Civ. P. 12(b)(6).
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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 JAMES L. JOHNSON JR., No. 2:22–cv–02061–DAD–CKD PS 12 Plaintiff, ORDER GRANTING IFP REQUEST AND DISMISSING WITH LEAVE TO AMEND 13 v. 14 SOLANO COUNTY SHERRIFF, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding without counsel in this action, requests leave to proceed in 18 forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of 19 an action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 Plaintiff’s affidavit makes the required financial showing, and so plaintiff’s request is granted. 21 However, the determination that a plaintiff may proceed without payment of fees does not 22 complete the inquiry. Under the IFP statute, the court must screen the complaint and dismiss any 23 claims that are “frivolous or malicious,” fail to state a claim on which relief may be granted, or 24 seek monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2). Further, the federal 25 court has an independent duty to ensure it has subject matter jurisdiction in the case. See United 26 Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 27 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. 1 Legal Standards 2 To avoid dismissal for failure to state a claim, a complaint must contain more than “naked 3 assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of 4 action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 5 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 6 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, relief 7 cannot be granted for a claim that lacks facial plausibility. Twombly, 550 U.S. at 570. “A claim 8 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 9 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 10 678. When considering whether a complaint states a claim upon which relief can be granted, the 11 court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 12 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan v. 13 Allain, 478 U.S. 265, 283 (1986). 14 Pleadings by self-represented litigants are liberally construed. See Haines v. Kerner, 404 15 U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). 16 Unless it is clear that no amendment can cure the defects of a complaint, a self-represented 17 plaintiff proceeding IFP is ordinarily entitled to notice and an opportunity to amend before 18 dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other 19 grounds by statute as stated in Lopez, 203 F.3d 1122; Franklin v. Murphy, 745 F.2d 1221, 1230 20 (9th Cir. 1984). Nevertheless, leave to amend need not be granted when further amendment 21 would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 22 Complaint 23 Plaintiff’s complaint alleges Eighth Amendment excessive force violations against 24 officers at the Stanton Correction Facility in Fairfield, California. (ECF No. 1 at 4.) Plaintiff 25 names four defendants in this action: (1) “Solano County Sherriffs,” (2) Officer Cynthia Hill, (3) 26 Officer Adrian Torres, and (4) Officer Marc Avecilla. (Id. at 2-3.) Plaintiff alleges that while he 27 was handcuffed at the facility, he was beaten with a nightstick (by Officer Hill), spit on and 28 beaten (by Officer Torres), and uppercut multiple times (by Officer Avecilla). (Id. at 7.) Plaintiff 1 sustained bruises to his lower torso, legs, and back. (Id.) Plaintiff alleges that he was deprived of 2 medical treatment. (Id.) Plaintiff does not indicate whether he was being held as a pre-trial 3 detainee or whether he was serving a criminal sentence during the time of the alleged events. 4 Plaintiff seeks $150,000 in monetary damages for psychological counseling, lost wages, 5 emotional distress, and pain and suffering. (Id). Plaintiff brings this suit against each of the 6 defendants in an “official capacity.” (Id. at 2-3.) 7 Analysis 8 1. Damages are unavailable in actions brought against government officials in their “official 9 capacity.” 10 Plaintiff’s complaint fails to state a claim because damages are not available in actions 11 brought against government officials in their “official capacity.” The Eleventh Amendment bars 12 damages actions against government officials in their official capacity. See e.g., Flint v. 13 Dennison, 488 F.3d 816, 824–25 (9th Cir. 2007). In contrast, damages actions against 14 government officials in an “individual” or “personal” capacity are not barred. Here, plaintiff 15 seeks damages through this lawsuit, yet expressly indicates that the claims against the named 16 officers are brought in an “official capacity.” (Id. at 5 (stating that plaintiff seeks $150,000 for 17 “psychological counseling, lost wages, emotional distress, pain and suffering”), 2-3 (plaintiff 18 checked the “official capacity” box under each of the four named defendants)). Ordinarily, in the 19 absence of any express indication that plaintiff seeks to bring an “official capacity” suit, the court 20 would be inclined to construe this damages action as an “individual capacity” suit. See Mitchell 21 v. Washington, 818 F.3d 436, 442 (9th Cir. 2016) (stating that in situations where a pro se 22 plaintiff’s complaint against a state official seeks damages but fails to select whether the action is 23 an “individual” or “official” capacity suit, the court may presume personal-capacity because an 24 official-capacity suit for damages would be barred). However, because plaintiff expressly 25 indicates that he is bringing an “official capacity” suit, plaintiff’s action cannot be construed as an 26 “individual capacity” suit without further amendment. 27 Accordingly, the court dismisses plaintiff’s complaint for failure to state a claim upon 28 which relief can be granted. Fed. R. Civ. P. 12(b)(6). In light of plaintiff’s pro se status, the court 1 finds it appropriate to grant plaintiff an opportunity to amend the complaint and informs plaintiff 2 of the additional deficiencies that should be addressed in any amended complaint. See Lopez, 3 203 F.3d at 1130-31 (indicating that prior to dismissal, the court is to tell the plaintiff of 4 deficiencies in the complaint and provide an opportunity to cure––if it appears at all possible the 5 defects can be corrected). 6 2. Excessive force claim 7 Plaintiff’s complaint alleges Eighth Amendment excessive force violations. 42 U.S.C. § 8 1983 provides a cause of action for the deprivation of “rights, privileges, or immunities secured 9 by the Constitution or laws of the United States” against a person acting “under color of any 10 statute, ordinance, regulation, custom, or usage.” Gomez v. Toledo, 446 U.S. 635, 639 (1980). 11 To state a claim for relief under § 1983, a plaintiff must allege that the defendant (1) acted under 12 color of state law; and (2) caused a plaintiff to be deprived of a right secured by the Constitution 13 or laws of the United States. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). 14 The Eighth Amendment prohibits prison officials from inflicting cruel and unusual 15 punishment on inmates. Cruel and unusual punishment has been defined as “the unnecessary and 16 wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). “[W]henever prison 17 officials stand accused of using excessive physical force in violation of the Cruel and Unusual 18 Punishments Clause, the core judicial inquiry is… whether force was applied in a good-faith 19 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. 20 McMillan, 503 U.S. 1, 7 (1992). The court’s inquiry into an excessive force claim focuses on the 21 extent of the prisoner’s injury, the need for application of force, the relationship between that 22 need and the amount of force used, the threat reasonably perceived by the responsible officials, 23 and any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7 (1992) 24 (quotation marks and citations omitted). While the absence of a serious injury is relevant to the 25 Eighth Amendment inquiry, it does not end it. Id. 503 U.S. at 7. The malicious and sadistic use 26 of force to cause harm always violates contemporary standards of decency in violation of the 27 Eighth Amendment. Whitley, 475 U.S. at 327. 28 Here, plaintiff alleges physical harm by multiple officers. Officer Hill beat plaintiff with a 1 nightstick, Officer Torres spit on him, and Officer Avecilla upper-cut him multiple times, 2 resulting in bruises to his lower torso, legs, and back. (ECF No. 1 at 7.) Plaintiff was in 3 handcuffs during at least some of the alleged violations. (Id.) The complaint does not contain 4 any information about the context in which the alleged violation occurred. (Id.) 5 Importantly, plaintiff does not allege whether he was a pretrial detainee or a convicted 6 inmate at the time of the events alleged in his complaint. Plaintiff’s custody status affects the 7 constitutional provision under which his claims arise: a pretrial detainee's claims about conditions 8 of confinement arise under the Fourteenth Amendment's Due Process Clause, while 9 a convict's claims arise under the Eighth Amendment's Cruel and Unusual Punishment Clause. In 10 any amended complaint plaintiff should clarify whether he was a pretrial detainee or a convicted 11 inmate at the time of the use of force. 12 3. Deprivation of medical treatment claim 13 To state a claim for relief under § 1983, plaintiff must link each named defendant with 14 some affirmative act or omission that demonstrates a violation of plaintiff's federal rights. The 15 civil rights statute requires that there be an actual connection or link between the actions of the 16 defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. 17 Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 18 Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a constitutional 19 right, within the meaning of section 1983, if he does an affirmative act, participates in another's 20 affirmative acts or omits to perform an act which he is legally required to do that causes the 21 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) 22 (citation omitted). Here, plaintiff alleges that he was deprived of medical treatment but does not 23 link the alleged deprivation to any affirmative act or omission by any named defendant. (ECF 24 No. 1 at 5.) Therefore, plaintiff does not meet pleading standard for alleging a § 1983 violation 25 based on deprivation of medical treatment. 26 4. “Solano County Sherriffs” is not a proper defendant. 27 Finally, the court takes the opportunity to inform plaintiff that the Solano County 28 Sherriff’s department is not a proper defendant because a sheriff’s department is not a “person” 1 within the meaning of § 1983. Section 1983 provides a cause of action for the deprivation of 2 “rights, privileges, or immunities secured by the Constitution or laws of the United States” 3 against a person acting “under color of any statute, ordinance, regulation, custom, or usage.” 4 Gomez, 446 U.S. at 639 (emphasis added). But the term “persons” encompasses state and local 5 officials sued in their individual capacities, private individuals and entities which acted under 6 color of state law, and local governmental entities for purposes of § 1983 action. See Vance v. 7 Cnty. of Santa Clara, 928 F. Supp. 993 (N.D. Cal. 1996). The term “persons” does not 8 encompass municipal departments. As noted in Vance, “[t]he County is a proper defendant in a § 9 1983 claim, an agency of the County is not”). 10 Although there is split authority on this subject, the undersigned continues to hold that a 11 California sheriff's department or police department is not a “person” under § 1983 and therefore 12 not a proper defendant for § 1983 claims. See Gunn v. Stanton Corr. Facility, No. 2: 21-CV- 13 0456-KJN-P, 2021 WL 1402141, at *2 (E.D. Cal. Apr. 14, 2021) (citing Cantu v. Kings Cty., No. 14 1:20-CV-00538-NONE-SAB, 2021 WL 411111, at *1-2 (E.D. Cal. Feb. 5, 2021) (discussing split 15 authority in this district)). This is because the sheriff's department is a subdivision of a local 16 government entity, in this case Solano County. Nelson v. County of Sacramento, 926 F. Supp. 2d 17 1159, 1170 (E.D. Cal. Feb. 26, 2013) (“Under § 1983, ‘persons’ includes municipalities. It does 18 not include municipal departments.”). 19 If plaintiff brings a claim against Solano County in any amended complaint, he will need 20 to meet the standard set forth in Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978) 21 (holding that liability under 42 U.S.C. § 1983 may be imposed on local governments when their 22 official policies or customs cause their employees to violate an individual's constitutional rights). 23 Summary and Leave to Amend 24 In summary, plaintiff’s complaint seeks damages against government officials in an 25 official capacity and therefore fails to state a claim. Fed. R. Civ. P. 12(b)(6). However, the court 26 grants plaintiff an opportunity to amend the complaint. See Lopez, 203 F.3d at 1130-31. The 27 court informs plaintiff that the following deficiencies should be addressed in any amended 28 complaint: (1) if seeking damages under § 1983, plaintiff must check the “individual capacity” 1 box under the officers’ names on any complaint form, and not the “official capacity” box; (2) 2 plaintiff should indicate whether he was a pretrial detainee or a convicted inmate at the time of 3 the use of force against him; (3) any constitutional claim based on deprivation of medical 4 treatment must be linked to an alleged act or omission by a named defendant; and (4) “Solano 5 County Sheriffs” is not a proper defendant. 6 STANDARDS FOR AMENDMENT 7 If plaintiff elects to file an amended complaint, this new pleading shall:
8 i. be captioned “First Amended Complaint”; 9 ii. be limited to 20 pages, with text utilizing a font size of 12 Times New Roman or equivalent and double spacing (pages exceeding the 20-page limit will be summarily 10 stricken and will not be considered part of plaintiff’s operative pleading); iii. use numbered paragraphs; 11 iv. set forth his various claims in separate sections and clearly identify which defendants are allegedly at fault for each claim (e.g., Claim I against defendants X, Y, and Z, 12 Claim II against defendants R and S, etc.); 13 v. under each section, list the factual allegations supporting that particular claim (for brevity, plaintiff may refer to specific prior paragraphs [i.e. “See ¶¶ 25, 34, and 42”], 14 but in no case shall plaintiff “incorporate all preceding paragraphs” for any claims); vi. include a general background facts section to orient the reader only as necessary; 15 vii. include his statements for jurisdiction, venue, and relief sought as is necessary; and viii. address any other pleading deficiencies outlined above. 16
17 This amended complaint shall be filed within 28 days of this order. 18 Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order 19 to make plaintiff’s first amended complaint complete. Local Rule 220 requires that an amended 20 complaint be complete in itself without reference to any prior pleading. As a general rule, an 21 amended complaint supersedes the original complaint, and once the first amended complaint is 22 filed, the original complaint no longer serves any function in the case. 23 Finally, nothing in this order requires plaintiff to file an amended complaint. If plaintiff 24 determines that he is unable to amend his complaint in compliance with the court’s order at this 25 time, he may alternatively file a notice of voluntary dismissal of his claims without prejudice 26 pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) within 28 days of this order. 27 //// 28 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiff's motion to proceed in forma pauperis is GRANTED; 4 2. Plaintiff's complaint is dismissed with leave to amend; 5 3. Plaintiff granted 28 days from the date of this order, plaintiff shall file either (a) an 6 amended complaint in accordance with this order, or (b) a notice of voluntary 7 dismissal of the action without prejudice; and 8 4. Failure to file either an amended complaint or a notice of voluntary dismissal by the 9 required deadline may result in the imposition of sanctions, including potential 10 dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 1] 41(b). 12 | Dated: January 11, 2023 / aa / a Ly a 13 CAROLYN K DELANEY 14 UNITED STATES MAGISTRATE JUDGE 15 |} 21, john.2061 16 17 18 19 20 21 22 23 24 25 26 27 28