1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 VERNON LAMONT COLBERT, SR., ) NO. EDCV 22-0518-CAS (AGR) 12 ) Plaintiff, ) 13 ) ORDER DISMISSING FIRST v. ) AMENDED COMPLAINT 14 ) WITHOUT FURTHER LEAVE TO WEST VALLEY DETENTION ) AMEND 15 CENTER COUNTY JAIL, et al., ) ) 16 Defendants. ) ) 17 ) 18 I. 19 BACKGROUND 20 On March 21, 2022, Plaintiff, proceeding pro se and in forma pauperis, filed 21 a civil rights complaint under 42 U.S.C. § 1983. (Dkt. No. 1.) On April 25, 2022, 22 Plaintiff filed the exhibits. (Dkt. No. 5.) The Court construed both filings together 23 as the operative complaint and dismissed the complaint with leave to amend. 24 (Dkt. No. 8.) 25 Plaintiff filed a First Amended Complaint (“FAC”). (Dkt. No. 9.) The Court 26 screens the FAC to determine whether it fails to state a claim on which relief may 27 be granted. 28 U.S.C. § 1915(e)(2)(B). The Court’s screening is governed by the 28 following standards: 1 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 2 v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “A claim has facial 3 plausibility when the plaintiff pleads factual content that allows the court to draw 4 the reasonable inference that the defendant is liable for the misconduct alleged. 5 The plausibility standard is not akin to a ‘probability requirement,’ but it asks for 6 more than a sheer possibility that a defendant has acted unlawfully.” Id. (citations 7 omitted). 8 A pro se complaint is to be liberally construed. Erickson v. Pardus, 551 9 U.S. 89, 94 (2007) (per curiam). Before dismissing a pro se civil rights complaint 10 for failure to state a claim, the plaintiff should be given a statement of the 11 complaint’s deficiencies and an opportunity to cure them unless it is clear the 12 deficiencies cannot be cured by amendment. Eldridge v. Block, 832 F.2d 1132, 13 1135-36 (9th Cir. 1987). 14 II. 15 ALLEGATIONS OF FIRST AMENDED COMPLAINT 16 The FAC names one defendant, Deputy Duncan at the West Valley 17 Detention Center (“WVDC”).1 (Dkt. No. 9 at 2.) 18 On or about September 15, 2021, Plaintiff was pronounced unresponsive in 19 his cell until smelling salts were used twice to arouse consciousness. Plaintiff 20 alleges that this “temporary death” was “caused by malicious unprofessional 21 acts.” (Id. at 3.) Defendant Duncan “allowed” temporary death and loss of 22 consciousness, during which Plaintiff stopped breathing. (Id. at 4.) 23 The FAC asserts a claim under the Eighth Amendment and seeks monetary 24 damages. (Id. at 4-5.) 25 26 27 1 Plaintiff was previously advised to file a First Amended Complaint that 28 names, in the caption and body of the complaint, the defendant(s) he wants to sue. (Order, Dkt. No. 8 at 2-3.) 1 III. 2 DISCUSSION 3 Plaintiff contends that Defendant Duncan violated the Eighth Amendment.2 4 As this Court previously explained, each defendant “is only liable for his or 5 her own misconduct.” Iqbal, 556 U.S. at 677. A person subjects another to the 6 deprivation of a constitutional right within the meaning of § 1983 if he or she 7 “does an affirmative act, participates in another's affirmative acts, or omits to 8 perform an act which he [or she] is legally required to do” that causes the 9 complained-of deprivation. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 10 “Liability under § 1983 must be based on the personal involvement of the 11 defendant.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 12 The complaint contains no facts showing how Defendant Duncan violated 13 the Eighth Amendment. The FAC alleges that Duncan “allowed” Plaintiff to 14 temporarily lose consciousness until smelling salts revived him, but the FAC does 15 not explain what Duncan did or did not do that caused the loss of consciousness 16 or any injury. 17 Although not attached to the FAC, the Court has again reviewed the two 18 grievances after the alleged incident on September 15, 2021 that were attached 19 to the previous complaint. Those grievances also do not explain what precisely 20 Duncan did or failed to do that led to deprivation of his rights. In Grievance ID 21 22 2 The Court previously explained that the Eighth Amendment protects 23 convicted prisoners and does not apply to pretrial detainees. Graham v. Connor, 490 U.S. 386, 396 n.10 (1989); Bell v. Wolfish, 441 U.S. 520, 535 (1861). If 24 Plaintiff was a pretrial detainee at WVDC, his claims arise under the Due Process Clause of the Fourteenth Amendment and are governed by different standards. 25 See Kingsley v. Hendrickson, 576 U.S. 389, 396-98 (2015) (setting forth standards for excessive force claims of pretrial detainees); Gordon v. County of 26 Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (setting forth standards for medical care claims of pretrial detainees). The Court advised Plaintiff to clarify in 27 the FAC his custodial status at the time his claims arose and advised that if Plaintiff was a pretrial detainee, he should assert his excessive force and medical 28 care claims under the Due Process Clause. The FAC does not clarify Plaintiff’s status but asserts the claim under the Eighth Amendment. 1 G342109-0057939, dated September 15, 2021, Plaintiff stated that on September 2 15, 2021, “malicious acts” “almost caused death to me” and names seven 3 individuals, including Defendant Duncan. The grievance does not describe what 4 the malicious acts were or what Duncan did or did not do. (Dkt. No. 5 at 9.) The 5 grievance was rejected as duplicative of Grievance ID G34208-0057341. (Id.) 6 Grievance ID 342109-0057974, dated September 16, 2021, also concerns the 7 incident on September 15, 2021. Plaintiff stated that he wrote to “medical” 8 regarding having a seizure in his cell during which he passed out, but his 9 assigned nurses acted as if the incident never happened and “hid.” (Dkt. No. 5 at 10 11.) The response stated that Plaintiff’s medical records showed he had been 11 seen first by a nurse and then by a medical provider. (Id.) 12 The FAC also alleges that Defendant Duncan uses a racial epithet from 13 “time-to-time.” (FAC at 2.) This allegation is troubling. Verbal harassment, 14 however, is not a sufficient basis for a § 1983 claim. Oltarzewski v. Ruggiero, 15 830 F.2d 136, 139 (9th Cir. 1987). The Ninth Circuit has found no constitutional 16 violation in “vulgar language” directed at inmate, id.; “abusive language directed 17 at [inmate’s] religious and ethnic background,” Freeman v. Arpaio, 125 F.3d 732, 18 738 (9th Cir. 1997), abrogated on other grounds by Shakur v. Schriro, 514 F.3d 19 878, 884–85 (9th Cir. 2008); and “disrespectful” comments directed at inmate, 20 Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 VERNON LAMONT COLBERT, SR., ) NO. EDCV 22-0518-CAS (AGR) 12 ) Plaintiff, ) 13 ) ORDER DISMISSING FIRST v. ) AMENDED COMPLAINT 14 ) WITHOUT FURTHER LEAVE TO WEST VALLEY DETENTION ) AMEND 15 CENTER COUNTY JAIL, et al., ) ) 16 Defendants. ) ) 17 ) 18 I. 19 BACKGROUND 20 On March 21, 2022, Plaintiff, proceeding pro se and in forma pauperis, filed 21 a civil rights complaint under 42 U.S.C. § 1983. (Dkt. No. 1.) On April 25, 2022, 22 Plaintiff filed the exhibits. (Dkt. No. 5.) The Court construed both filings together 23 as the operative complaint and dismissed the complaint with leave to amend. 24 (Dkt. No. 8.) 25 Plaintiff filed a First Amended Complaint (“FAC”). (Dkt. No. 9.) The Court 26 screens the FAC to determine whether it fails to state a claim on which relief may 27 be granted. 28 U.S.C. § 1915(e)(2)(B). The Court’s screening is governed by the 28 following standards: 1 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 2 v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “A claim has facial 3 plausibility when the plaintiff pleads factual content that allows the court to draw 4 the reasonable inference that the defendant is liable for the misconduct alleged. 5 The plausibility standard is not akin to a ‘probability requirement,’ but it asks for 6 more than a sheer possibility that a defendant has acted unlawfully.” Id. (citations 7 omitted). 8 A pro se complaint is to be liberally construed. Erickson v. Pardus, 551 9 U.S. 89, 94 (2007) (per curiam). Before dismissing a pro se civil rights complaint 10 for failure to state a claim, the plaintiff should be given a statement of the 11 complaint’s deficiencies and an opportunity to cure them unless it is clear the 12 deficiencies cannot be cured by amendment. Eldridge v. Block, 832 F.2d 1132, 13 1135-36 (9th Cir. 1987). 14 II. 15 ALLEGATIONS OF FIRST AMENDED COMPLAINT 16 The FAC names one defendant, Deputy Duncan at the West Valley 17 Detention Center (“WVDC”).1 (Dkt. No. 9 at 2.) 18 On or about September 15, 2021, Plaintiff was pronounced unresponsive in 19 his cell until smelling salts were used twice to arouse consciousness. Plaintiff 20 alleges that this “temporary death” was “caused by malicious unprofessional 21 acts.” (Id. at 3.) Defendant Duncan “allowed” temporary death and loss of 22 consciousness, during which Plaintiff stopped breathing. (Id. at 4.) 23 The FAC asserts a claim under the Eighth Amendment and seeks monetary 24 damages. (Id. at 4-5.) 25 26 27 1 Plaintiff was previously advised to file a First Amended Complaint that 28 names, in the caption and body of the complaint, the defendant(s) he wants to sue. (Order, Dkt. No. 8 at 2-3.) 1 III. 2 DISCUSSION 3 Plaintiff contends that Defendant Duncan violated the Eighth Amendment.2 4 As this Court previously explained, each defendant “is only liable for his or 5 her own misconduct.” Iqbal, 556 U.S. at 677. A person subjects another to the 6 deprivation of a constitutional right within the meaning of § 1983 if he or she 7 “does an affirmative act, participates in another's affirmative acts, or omits to 8 perform an act which he [or she] is legally required to do” that causes the 9 complained-of deprivation. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 10 “Liability under § 1983 must be based on the personal involvement of the 11 defendant.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 12 The complaint contains no facts showing how Defendant Duncan violated 13 the Eighth Amendment. The FAC alleges that Duncan “allowed” Plaintiff to 14 temporarily lose consciousness until smelling salts revived him, but the FAC does 15 not explain what Duncan did or did not do that caused the loss of consciousness 16 or any injury. 17 Although not attached to the FAC, the Court has again reviewed the two 18 grievances after the alleged incident on September 15, 2021 that were attached 19 to the previous complaint. Those grievances also do not explain what precisely 20 Duncan did or failed to do that led to deprivation of his rights. In Grievance ID 21 22 2 The Court previously explained that the Eighth Amendment protects 23 convicted prisoners and does not apply to pretrial detainees. Graham v. Connor, 490 U.S. 386, 396 n.10 (1989); Bell v. Wolfish, 441 U.S. 520, 535 (1861). If 24 Plaintiff was a pretrial detainee at WVDC, his claims arise under the Due Process Clause of the Fourteenth Amendment and are governed by different standards. 25 See Kingsley v. Hendrickson, 576 U.S. 389, 396-98 (2015) (setting forth standards for excessive force claims of pretrial detainees); Gordon v. County of 26 Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (setting forth standards for medical care claims of pretrial detainees). The Court advised Plaintiff to clarify in 27 the FAC his custodial status at the time his claims arose and advised that if Plaintiff was a pretrial detainee, he should assert his excessive force and medical 28 care claims under the Due Process Clause. The FAC does not clarify Plaintiff’s status but asserts the claim under the Eighth Amendment. 1 G342109-0057939, dated September 15, 2021, Plaintiff stated that on September 2 15, 2021, “malicious acts” “almost caused death to me” and names seven 3 individuals, including Defendant Duncan. The grievance does not describe what 4 the malicious acts were or what Duncan did or did not do. (Dkt. No. 5 at 9.) The 5 grievance was rejected as duplicative of Grievance ID G34208-0057341. (Id.) 6 Grievance ID 342109-0057974, dated September 16, 2021, also concerns the 7 incident on September 15, 2021. Plaintiff stated that he wrote to “medical” 8 regarding having a seizure in his cell during which he passed out, but his 9 assigned nurses acted as if the incident never happened and “hid.” (Dkt. No. 5 at 10 11.) The response stated that Plaintiff’s medical records showed he had been 11 seen first by a nurse and then by a medical provider. (Id.) 12 The FAC also alleges that Defendant Duncan uses a racial epithet from 13 “time-to-time.” (FAC at 2.) This allegation is troubling. Verbal harassment, 14 however, is not a sufficient basis for a § 1983 claim. Oltarzewski v. Ruggiero, 15 830 F.2d 136, 139 (9th Cir. 1987). The Ninth Circuit has found no constitutional 16 violation in “vulgar language” directed at inmate, id.; “abusive language directed 17 at [inmate’s] religious and ethnic background,” Freeman v. Arpaio, 125 F.3d 732, 18 738 (9th Cir. 1997), abrogated on other grounds by Shakur v. Schriro, 514 F.3d 19 878, 884–85 (9th Cir. 2008); and “disrespectful” comments directed at inmate, 20 Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996). Plaintiff, therefore, fails to 21 state a claim based on verbal harassment. 22 As the Court previously explained, a complaint must contain “a short and 23 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 24 Civ. P. 8(a)(2). The purpose is to “give the defendant fair notice of what the . . . 25 claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 26 U.S. 544, 555 (2007) (internal quotation marks and citation omitted). The 27 complaint does not give Defendant Duncan fair notice of the nature of Plaintiff’s 28 claims, the grounds upon which they rest, and what conduct by each Defendant 1 constitutes the factual basis for the claims asserted against that Defendant. See 2 Twombly, 550 U.S. at 555; McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir. 3 1996). 4 The Court previously explained to Plaintiff the deficiencies in his complaint 5 and granted him leave to file an amended complaint. (Dkt. No. 8.) Plaintiff has 6 not been able to cure the deficiencies. Further leave to amend would be futile 7 and unwarranted. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 8 1034, 1041 (9th Cir. 2011) (leave to amend may be denied when amendment 9 would be futile); Griggs v. Pace American Group, Inc., 170 F.3d 877, 879 (9th Cir. 10 1999) (discretion to deny leave to amend is “particularly broad” when plaintiff was 11 previously granted leave to amend). 12 IV. 13 ORDER 14 For the reasons discussed above, IT IS ORDERED that the First Amended 15 Complaint is dismissed without further leave to amend and that Judgment be 16 entered accordingly. 17 18 || Dated: April 5, 2024 Ano bud 4. fe 19 United States District Judge 20 21 22 23 24 25 26 27 28