Opinion
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, DISMISSING CLAIMS WITH AND WITHOUT LEAVE TO AMEND AND FOR SERVICE OF COMPLAINT
CLAUDIA WILKEN, District Judge.
INTRODUCTION
Plaintiff Eddie J. Streeter, Jr., is a prisoner of the State of California who is confined at the California Medical Facility at Vacaville (CMF). He has filed this civil rights action under 42 U.S.C. § 1983 and seeks leave to proceed in forma pauperis. Venue is proper in this district because the acts complained of occurred when Plaintiff was incarcerated at the Santa Clara County Main Jail (SCCMJ), which is in Santa Clara County. 28 U.S.C. § 1391(b).
BACKGROUND
Plaintiff alleges that SCCMJ officials, employed by the Santa Clara County Department of Corrections (DOC), deliberately placed him in a cell with a violent and mentally ill inmate and ignored his ongoing expressions of concern for his personal safety in retaliation for his having objected to his housing placement. Plaintiff was attacked by his cellmate and stabbed three times in the face. Plaintiff alleges that jail officials deliberately refused to come to his aid in a timely manner, and when they arrived they could not enter his cell immediately because they had refused to respond to his ongoing complaints that the lock on his cell door did not work properly and placed him in danger. Jail officials also delayed Plaintiff's transportation to Santa Clara County Valley Medical Center (VMC), stopping along the way to conduct personal business. After treatment at VMC, which included receiving thirty-seven sutures, Plaintiff was returned to SCCMJ, but jail officials deliberately refused to comply with the doctor's orders to place Plaintiff in the hospital ward and provide appropriate follow-up care.
Plaintiff pursued his claims through the DOC administrative grievance process and also filed a claim with the Santa Clara County Employee Services Agency, Department of Risk Management/Insurance Division, which was rejected. He also contacted the California Inspector General's Office and was informed that they could not pursue a claim on his behalf.
In this action, Plaintiff alleges the violation of his First and Eighth Amendment rights and supplemental State tort law claims. He seeks declaratory relief and damages.
DISCUSSION
I. STANDARD OF REVIEW
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law. West v. Atkins , 487 U.S. 42, 48 (1988). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Terracom v. Valley National Bank , 49 F.3d 555, 558 (9th Cir. 1995) (quoting Conley v. Gibson , 355 U.S. 41, 45-46 (1957)). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1988).
II. LEGAL CLAIMS
Plaintiff states cognizable claims for retaliation, deliberate indifference to safety needs and deliberate indifference to serious medical needs. The Court also will assert jurisdiction over Plaintiff's supplemental State law tort claims. 28 U.S.C. § 1367(a).
Liability may be imposed on an individual defendant under § 1983 only if the plaintiff can show that the defendant proximately caused the deprivation of a federally protected right. See Leer v. Murphy , 844 F.2d 628, 634 (9th Cir. 1988). The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation. Id. at 633. Sweeping conclusory allegations will not suffice; the plaintiff must instead "set forth specific facts as to each individual defendant's" deprivation of protected rights. Id. at 634.
Of the numerous Defendants Plaintiff names, the only ones who have been linked directly to his allegations are Classification Committee members Robinson, Calderone and Osborn, and "Doe 6, " a Custody Officer referred to as "Cowboy." Plaintiff alleges that he told these Defendants of his concerns for his safety and asked to be rehoused but they refused to do so. Accordingly, his claims against these Defendants are cognizable. As discussed below, however, the Court cannot order that Defendant Doe 6 be served with the complaint until Plaintiff has identified him by name.
Plaintiff has named four individual Defendants who are not linked directly to the allegations in the body of the complaint. These Defendants are SCCMJ Custody Sgt. Rooks, VMC Nurse Merna, VMC Nurse Victoria and Ted Althausen of the Santa Clara Country Employee Services Agency, Risk Management Division. Accordingly, claims against these Defendants must be DISMISSED without prejudice. If Plaintiff can in good faith assert constitutionally cognizable claims for relief against any or all of these Defendants he may seek leave to file an amended complaint so alleging.
Plaintiff has named several Defendants in their supervisorial capacities. A supervisor may be liable under § 1983 only upon a showing of personal involvement in the constitutional deprivation or a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Redman v. County of San Diego , 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc) (citation omitted). Under no circumstances is there liability under § 1983 solely because one is responsible for the actions or omissions of another. See Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989); Ybarra v. Reno Thunderbird Mobile Home Village , 723 F.2d 675, 680-81 (9th Cir. 1984). Plaintiff has not alleged facts upon which a claim for relief may be stated against the supervisorial Defendants because he has not directly linked them to his allegations. Accordingly, the claims against Custody Officer Estrada, Custody Lt. and Watch Commander Kimberly Simpson, Main Jail Complex Commander Toby K. Wong, Professional Compliance Commander Sandra Padget, Chief of Corrections Jim Babcock and Head of the California Department of Corrections Edward Almeida are DISMISSED without prejudice. Similarly, Plaintiff has not alleged grounds for municipal liability against the County of Santa Clara, the DOC or VMC based on any theory other than that of respondeat superior. This is not a sufficient ground for municipal liability. See Monell v. Dep't of Social Servs. , 436 U.S. 658, 691 (1978) (local governments cannot be liable under § 1983 under respondeat superior theory). Accordingly, the claims against these three municipal Defendants are DISMISSED without prejudice. If Plaintiff can in good faith assert facts which state constitutionally cognizable claims for relief against any or all of the supervisorial and/or municipal Defendants he may move to file an amended complaint so alleging.
Plaintiff names as Defendants Steve White, the Inspector General of California, and John Chen, the Chief Deputy Inspector General. They apparently are named as Defendants because Plaintiff wrote a letter to the Office of the Inspector General asking for an investigation into his claims. The Office responded that it could not assist Plaintiff because it "cannot act in the role of attorney, nor can it provide legal advice or assistance." Pltf's Ex. G. It then provided him with the addresses of various public interest agencies representing prisoners. Plaintiff's claim is without merit. The Office of the Inspector General is an independent arm of the State which oversees the State correctional system. Plaintiff has made no cognizable claim that the Office or its employees acted outside of the law by rejecting his bid for assistance. Moreover, the Eleventh Amendment immunity bars suits for damages against State agencies, see, e.g., Simmons v. Sacramento County Superior Court , 318 F.3d 1156, 1161 (9th Cir. 2003) (Eleventh Amendment bars suit against State superior court and its employees); Allison v. California Adult Authority , 419 F.2d 822, 823 (9th Cir. 1969) (California Adult Authority and San Quentin Prison not persons within meaning of Civil Rights Act); Bennett v. California , 406 F.2d 36, 39 (9th Cir.) (California Adult Authority and California Department of Corrections not persons within meaning of Civil Rights Act), cert. denied, 394 U.S. 966 (1969), and against State officials sued in their official capacities, see Kentucky v. Graham , 472 U.S. 159, 169-70 (1985). A federal court may not entertain a suit against a State official that in essence seeks damages from the public treasury nor may it order State officials to conform their conduct with State law. See Pennhurst State School & Hosp. v. Halderman , 465 U.S. 89, 97-121 (1984); Confederated Tribes & Bands v. Locke , 176 F.3d 467, 469 (9th Cir. 1999) (damages claim against governor in his official capacity barred by Eleventh Amendment). Accordingly, Plaintiff's claims against these Defendants are DISMISSED with prejudice.
Plaintiff names five members of the Santa Clara County Board of Supervisors and two members of the County Executive's Office as Defendants. Plaintiff does not directly link any of these Defendants to his allegations. Members of a governing board cannot be held vicariously liable under 42 U.S.C. § 1983 for conduct by employees. See Weisbuch v. County of Los Angeles , 119 F.3d 778, 781-82 (9th Cir. 1997). Personal participation in violating the plaintiff's constitutional rights must be alleged. See id. Allegations that members failed to overrule the unconstitutional discretionary acts of subordinates are not enough. See id.; Gillete v. Delmore , 979 F.2d 1342, 1348 (9th Cir. 1992). Accordingly, the claims against Board Members Blanca Alvarado, Pete McHugh, Donald Gage, James T. Beall, Jr. and Liz Kniss, and County Executive Richard Wittenberg and Deputy County Executive Peter Kutras, Jr. are DISMISSED with prejudice from this action.
Plaintiff names individual Doe Defendants one through six and two groups of Does, seven through seventy and seventy-one through ninety-nine. The use of "John Doe" to identify a defendant is not favored in the Ninth Circuit. See Gillespie v. Civiletti , 629 F.2d 637, 642 (9th Cir. 1980); Wiltsie v. Cal. Dep't of Corrections , 406 F.2d 515, 518 (9th Cir. 1968). However, situations may arise where the identity of alleged defendants cannot be known prior to the filing of a complaint. In such circumstances, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover their identities or that the complaint should be dismissed on other grounds. See Gillespie , 629 F.2d at 642; Velasquez v. Senko , 643 F.Supp. 1172, 1180 (N.D. Cal. 1986). Accordingly, all named Doe Defendants are DISMISSED without prejudice. Should Plaintiff discover any or all of their identities while this action is pending and can in good faith assert facts alleging constitutionally cognizable claims for relief against them, he may move to amend his complaint to add them as named Defendants.
CONCLUSION
For the foregoing reasons, the Court orders as follows:
1. Leave to proceed in forma pauperis is GRANTED (docket no. 2).
2. All claims against Defendants SCCMJ Custody Sgt. Rooks, VMC Nurse Merna, VMC Nurse Victoria, Ted Althausen, Custody Officer Estrada, Custody Lt. and Watch Commander Kimberly Simpson, Main Jail Complex Commander Toby K. Wong, Professional Compliance Commander Sandra Padget, Chief of Corrections Jim Babcock and Head of the California Department of Corrections Edward Almeida, the County of Santa Clara, the Santa Clara County Department of Corrections, Santa Clara County Valley Medical Center are DISMISSED without prejudice and with leave to amend, as set forth above. Plaintiff must file any amended complaint containing claims against these Defendants within forty-five (45) days of the date of this Order. The failure to do so will result in the dismissal of these Defendants with prejudice.
3. All claims against Doe Defendants are DISMISSED without prejudice and with leave to amend. If Plaintiff is able to discover any or all of their identities he may file an amended complaint no later than ten (10) days after the served Defendants have filed a motion for summary judgment.
4. All claims against Defendants Steve White, the Inspector General of California, John Chen, the Chief Deputy Inspector General, Santa Clara County Board of Supervisors members Blanca Alvarado, Pete McHugh, Donald Gage, James T. Beall, Jr. and Liz Kniss, and County Executive Richard Wittenberg and Deputy County Executive Peter Kutras, Jr. are DISMISSED from this action WITH PREJUDICE and without leave to amend.
5. The Clerk of the Court shall mail to Defendants Robinson, Calderone and Osborn a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint and all attachments thereto (docket no. 1), and a copy of this Order. The Clerk of Court shall also mail a copy of the complaint and a copy of this Order to County Counsel, County of Santa Clara, San Jose, California. Additionally, the Clerk shall mail a copy of this Order to Plaintiff.
6. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure requires them to cooperate in saving unnecessary costs of service of the summons and complaint. Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of such service unless good cause be shown for their failure to sign and return the waiver form. If service is waived, this action will proceed as if Defendants had been served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer before sixty (60) days from the date on which the request for waiver was sent. (This allows a longer time to respond than would be required if formal service of summons is necessary.) Defendants are asked to read the statement set forth at the foot of the waiver form that more completely describes the duties of the parties with regard to waiver of service of the summons. If service is waived after the date provided in the Notice but before Defendants have been personally served, the Answer shall be due sixty days from the date on which the request for waiver was sent or twenty days from the date the waiver form is filed, whichever is later.
7. Defendants shall answer the complaint in accordance with the Federal Rules of Civil Procedure. The following briefing schedule shall govern dispositive motions in this action:
a. No later than sixty (60) days from the date their answer is due, Defendants shall file a motion for summary judgment or other dispositive motion. The motion shall be supported by adequate factual documentation and shall conform in all respects to Federal Rule of Civil Procedure 56. If Defendants are of the opinion that this case cannot be resolved by summary judgment, they shall so inform the Court prior to the date the summary judgment motion is due. All papers filed with the Court shall be promptly served on Plaintiff.
b. Plaintiff's opposition to the dispositive motion shall be filed with the Court and served on Defendants no later than thirty (30) days after the date on which Defendants' motion is filed. The Ninth Circuit has held that the following notice should be given to pro se plaintiffs facing a summary judgment motion:
The defendants have made a motion for summary judgment by which they seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact - that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted in favor of defendants, your case will be dismissed and there will be no trial.
See Rand v. Rowland , 154 F.3d 952, 963 (9th Cir. 1998) (en banc).
Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (party opposing summary judgment must come forward with evidence showing triable issues of material fact on every essential element of his claim). Plaintiff is cautioned that because he bears the burden of proving his allegations in this case, he must be prepared to produce evidence in support of those allegations when he files his opposition to Defendants' dispositive motion. Such evidence may include sworn declarations from himself and other witnesses to the incident, and copies of documents authenticated by sworn declaration. Plaintiff will not be able to avoid summary judgment simply by repeating the allegations of his complaint.
c. If Defendants wish to file a reply brief, they shall do so no later than fifteen (15) days after the date Plaintiff's opposition is filed.
d. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the Court so orders at a later date.
8. Discovery may be taken in this action in accordance with the Federal Rules of Civil Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendants to depose Plaintiff and any other necessary witnesses confined in prison.
9. All communications by Plaintiff with the Court must be served on Defendants, or Defendants' counsel once counsel has been designated, by mailing a true copy of the document to Defendants or Defendants' counsel.
10. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court informed of any change of address and must comply with the Court's orders in a timely fashion.
8. Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than seven days prior to the deadline sought to be extended.
IT IS SO ORDERED.