Opinion
NO. ED CV 16-2007-RGK(E)
10-13-2016
JOSEPH PATRICK ROMAN SIMON, Plaintiff, v. JOHN McMAHON, Sheriff, et al., Defendants.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
For the following reasons, the Complaint is dismissed with leave to amend. See 28 U.S.C. § 1915(e)(2)(B).
BACKGROUND
Plaintiff, an inmate at the West Valley Detention Center ("WVDC"), filed this civil rights action on September 20, 2016, pursuant to 42 U.S.C. section 1983. Defendants are: (1) the County of San Bernardino; (2) San Bernardino County Sheriff John McMahon; (3) WVDC Commander Jeff Rose; (4) WVDC Facility Commander Chris Fisher; (5) Sheriff Sergeant J. Steer; (6) Deputy C. Zaragoza; and (7) fifty fictitious "John Doe" Defendants. Plaintiff sues the individual Defendants in their individual and official capacities (Complaint, p. 9, ¶ 19).
A plaintiff may name a fictitious defendant in his or her complaint if the plaintiff does not know the true identity of the defendant prior to the filing of the complaint. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). However, Plaintiff should be aware that before the United States Marshal can serve process on any fictitiously named Defendant, Plaintiff must provide identifying information sufficient to permit the service of process, such as the Defendant's full name and address. --------
Also on September 20, 2016, Plaintiff filed a "Motion for Extension of Time" to file exhibits to the Complaint, which the Court granted on September 23, 2016. Plaintiff filed exhibits to the Complaint on September 30, 2016. The Court considers the Complaint and the exhibits together to constitute Plaintiff's Complaint.
SUMMARY OF PLAINTIFF'S ALLEGATIONS
The Complaint contains four claims for relief pursuant to section 1983, styled "causes of action," as well as general allegations of conspiracy (see id., p. 17, ¶ 35). The title of the Complaint, however, identifies claims for: (1) violation of the First Amendment; (2) violation of the Fourth Amendment; (3) violation of due process; (4) violation of the Prison Rape Elimination Act, 42 U.S.C. section 15601 et seq.; (5) violation of equal protection; (6) conspiracy to violate civil rights pursuant to 42 U.S.C. section 1985; (7) "neglect to prevent civil rights violation" pursuant to 42 U.S.C. section 1986; (8) a violation of "the Bill of Rights"; and (9) a claim pursuant to the Federal Tort Claims Act, 28 U.S.C. section 1346 and section 2671 et seq. ("FTCA") (Complaint, pp. 1-2). The four pleaded "causes of action" do not necessarily correspond to the nine claims identified in the title of the Complaint.
In the First Cause of Action, Plaintiff alleges that, during a cell search on or about December 22, 2015, Defendant Zaragoza conducted a pat-down search of Plaintiff during which Zaragoza allegedly fondled Plaintiff's genitalia and left buttock (Complaint, p. 10, ¶ 21). Plaintiff allegedly informed Defendant Speer, who assertedly did not want to speak to Plaintiff and "overlooked" Defendant Zaragoza's alleged misconduct (id.).
The Second Cause of Action alleges that, on or about December 24, 2015, Defendant Zaragoza and his partner "John Doe" retaliated against Plaintiff for filing a grievance concerning the alleged sexual fondling by assertedly confiscating Plaintiff's property on the allegedly false ground that Plaintiff was not a "pro-per" inmate (id., p. 11, ¶ 23).
The Third Cause of Action alleges that, on or about December 29, 2015, Defendant Zaragoza and his partner "John Doe" subjected Plaintiff to excessive force by allegedly placing overly tight handcuffs on Plaintiff and also assertedly retaliated against Plaintiff by stealing Plaintiff's property (id., pp. 13-14, ¶ 25).
The Fourth Cause of Action alleges that, on or about December 30, 2015, Defendant Zaragoza and two fictitious "John Doe" Defendants retaliated against Plaintiff for filing a grievance by telling Plaintiff to "roll up" his property to transfer Plaintiff to a different housing location (id., pp. 15-16, ¶ 27). Plaintiff then assertedly was placed in the "hole" and charged with a disciplinary violation, allegedly in retaliation for exercising his constitutional right to file a complaint (id.). The disciplinary charge allegedly was dismissed as untimely (id.).
Plaintiff alleges that the County of San Bernardino failed to train and supervise its officers and condoned and failed to correct the alleged wrongdoing (id., p. 19, ¶ 38). Defendants McMahon and Rose allegedly were responsible for the actions of the subordinates, failed to investigate the alleged wrongdoing and failed to discipline to alleged offenders (id., pp. 19-20, ¶ 39). Plaintiff seeks declaratory relief, general damages in the sum of $5 million and punitive damages in a like sum (id., p. 17, ¶¶ 29-30, pp. 22-23, ¶¶ 46-49).
DISCUSSION
The Complaint fails to state a claim against Defendants McMahon and Rose. A supervisor is not liable under section 1983 on a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Government officials may not be held liable for the unconstitutional conduct of their subordinates on a theory of respondeat superior"). A supervisor "is only liable for his or her own misconduct," and is not "accountable for the misdeeds of [his or her] agents." Id. at 677. Mere knowledge of a subordinate's alleged misconduct is insufficient. Id.
A supervisor may be held liable in his or her individual capacity "for [his or her] own culpable action or inaction in the training, supervision or control of [his or her] subordinates." Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1093 (9th Cir. 1998) (quoting Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)). To state a claim against any individual defendant, a plaintiff must allege facts showing that the individual defendant participated in or directed the alleged violation, or knew of the violation and failed to act to prevent it. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999) ("A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights."). The Complaint alleges no facts, as distinguished from conclusions, showing the personal involvement of Defendants McMahon or Rose in any of the alleged wrongdoing.
To the extent Plaintiff purports to allege a claim for violation of the Prison Rape Elimination Act, 42 U.S.C. section 15601 et seq., any such claim is insufficient. The Prison Rape Elimination Act does not create a private right of action. See Krieg v. Steele, 599 Fed. App'x 231, 232-33 (5th Cir.), cert. denied, 136 S. Ct. 238 (2015); Olive v. Harrington, 2016 WL 4899177, at *4 (E.D. Cal. Sept. 14, 2016); Gonzalez v. Chriese, 2016 WL 3231284, at *4 (N.D. Cal. June 13, 2016); Davis v. Riverside County Sheriff's Dep't, 2016 WL 1642558, at *4 (C.D. Cal. Apr. 25, 2016). ///
To the extent Plaintiff purports to allege a claim for conspiracy to violate civil rights pursuant to 42 U.S.C. section 1985, Plaintiff's conclusory conspiracy allegations are insufficient. See Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 929-30 (9th Cir. 2004); see also Wisdom v. Katz, 539 Fed. App'x 704, 705 (9th Cir. 2013). For the same reason, any section 1986 claim also fails. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988) ("A claim can be stated under section 1986 only if the complaint contains a valid claim under section 1985.") (citation omitted).
To the extent Plaintiff purports to assert an FTCA claim based on alleged constitutional violations, the FTCA provides no remedy for constitutional violations. See F.D.I.C. v. Meyer, 510 U.S. 471, 477-78 (1994). Furthermore, the FTCA generally "provides jurisdiction for suits against the United States regarding torts committed by federal officials, not state officials." Miller v. Madigan, 2015 WL 7178431, at *4 (S.D. Ill. Nov. 16, 2015); see Logue v. United States, 412 U.S. 521 (1973). The United States is the only proper defendant in an FTCA action. See Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995). Plaintiff does not sue any federal officials or allege any claim against the United States.
ORDER
For the foregoing reasons, the Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Order within which to file a First Amended Complaint. Although the Court does not necessarily deem insufficient all of Plaintiff's claims, the Court does require that any First Amended Complaint be complete in itself and not refer in any manner to any prior complaint. Failure to file timely a First Amended Complaint may result in the dismissal of this action. See Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002), cert. denied, 538 U.S. 909 (2003) (court may dismiss action for failure to follow court order); Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th Cir.), amended, 234 F.3d 428 (9th Cir. 2000), cert. denied, 531 U.S. 1104 (2001), overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir.), cert. denied, 552 U.S. 985 (2007) (affirming dismissal without leave to amend where plaintiff failed to correct deficiencies in complaint, where court had afforded plaintiff opportunities to do so, and where court had given plaintiff notice of the substantive problems with his claims); Plumeau v. School District #40, County of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend appropriate where further amendment would be futile).
IT IS SO ORDERED.
DATED: October 13, 2016
/s/_________
R. GARY KLAUSNER
UNITED STATES DISTRICT JUDGE PRESENTED this 7th day of October, 2016 by: /S/_________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE