Opinion
3:22-cv-00311-MMD-CSD
01-10-2023
HASAN MALIK DAVIS, Plaintiff, v. CITY OF SPARKS POLICE OFFICER, et al., Defendants.
SCREENING ORDER ON SECOND AMENDED COMPLAINT (ECF No. 25)
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE
On December 7, 2022, this Court screened pro se Plaintiff Hasan Malik Davis's first amended complaint (“FAC”) under 28 U.S.C. § 1915A. (ECF No. 23.) In its screening order, the Court dismissed the FAC without prejudice and with leave to amend. (Id. at 7.) Davis subsequently filed a second amended complaint (“SAC”). (ECF No. 25.) He also moved for the appointment of counsel and submitted a “Motion for ADR Settlement.” (ECF Nos. 24, 26.) The Court now screens the SAC under 28 U.S.C. § 1915A and addresses Davis's motions.
I. SCREENING STANDARD
Federal courts must conduct a preliminary screening in any case in which an incarcerated person seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. Se Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person's claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all allegations of material fact stated in the complaint, and the Court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. See id.
Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations.” Id. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
Finally, all or part of a complaint filed by an incarcerated person may be dismissed sua sponte if that person's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
II. SCREENING OF SAC
In the SAC, Davis sues Sheriff Darin Balaam, Washoe County, and an unidentified City of Sparks police officer for events that took place while Davis was a pretrial detainee at Washoe County Detention Facility (“WCDF”). (ECF No. 25 at 1-2.) Davis brings one claim and seeks $250,000 in damages. (Id. at 3-6.)
The SAC alleges the following. An unidentified City of Sparks police officer transported Davis to WCDF on November 30, 2021. (Id. at 3.) When Davis arrived at WCDF, the police officer “deliberately allowed [him] to urinate on” himself. (Id.) At the time, Davis was in the police officer's custody and “under the care of” Sheriff Balaam. (Id.) When transporting pretrial detainees, it is “the custom” to allow them to “use the jail facility restroom” if they “need to go to the restroom.” (Id.) And when detainees are moved “from state to state,” officials “will stop at the nearest jail” to allow the detainees to use the restroom if they need to. (Id.) No policy, however, “allow[s] a detainee to urinate on himself” in a jail facility that has restrooms. (Id.)
Based on these allegations, Davis asserts that his Fourteenth Amendment rights have been violated, citing Defendants' “deliberate indifference.” (Id. at 2-3.) Because Davis was a pretrial detainee at the time of the events described in the SAC, the Fourteenth Amendment-not the Eighth Amendment-applies to his allegations. See Vazquez v. Cnty. of Kern, 949 F.3d 1153, 1163-64 (9th Cir. 2020). Thus, the Court liberally construes the SAC as asserting a Fourteenth Amendment conditions-of-confinement claim against the unidentified police officer and Sheriff Balaam. Additionally, because Davis names Washoe County as a Defendant, the Court also construes the SAC as raising a municipal liability claim against Washoe County.
A. Fourteenth Amendment-Conditions of Confinement
A pretrial detainee's claims challenging unconstitutional conditions of confinement fall under the Fourteenth Amendment's Due Process Clause. See Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124 & n.2 (9th Cir. 2018). The Court evaluates Fourteenth Amendment conditions-of-confinement claims under the objective deliberate indifference standard. See id. To establish unconstitutional conditions of confinement, a plaintiff must prove that “(i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved-making the consequences of the defendant's conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff's injuries.” Id. at 1125; g 833 F.3d 1060, 1071 (9th Cir. 2016). The third element requires the defendant's conduct to be “objectively unreasonable,” a test that turns on the facts and circumstances of each case. Gordon, 888 F.3d at 1125. A plaintiff must “prove more than negligence but less than subjective intent-something akin to reckless disregard.” Id. When evaluating the objective reasonableness of the defendant's conduct, a pretrial detainee may show that “the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” Kingsley v. Hendrickson, 576 U.S. 389, 397-98 (2015).
“A supervisor may be liable [under § 1983] if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). “A supervisor can be liable in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation . . .; or for conduct that showed a reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998) (internal quotation marks and citation omitted).
Davis fails to state a colorable conditions-of-confinement claim. He vaguely alleges that an unidentified police officer “deliberately allowed [him] to urinate on” himself at WCDF. (ECF No. 25 at 3.) But Davis provides no context for this allegation. He does not say how long he had been waiting to use the restroom when he urinated on himself. Nor does he describe the circumstances of his interaction with the police officer. For example, it is unclear when the police officer learned of Davis's need to use the restroom, and Davis does not allege the reason (if any) the police officer gave for denying him use of a bathroom. Such information is necessary to evaluate Davis's claim, because “[t]he circumstances, nature, and duration of a deprivation of [basic] necessities must be considered in determining whether a constitutional violation has occurred.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); see also James v. California, Case No. 2:21-cv-00713, 2022 WL 1404321, at *2 (E.D. Cal. May 4, 2022) (finding that pretrial detainee failed to state colorable conditions-of-confinement claim because he “offer[ed] no context” for his allegation that defendant “refused to allow him to use the bathroom for a period and, as a result, he urinated on himself”), adopted by 2022 WL 15523571 (E.D. Cal. Oct. 27, 2022). Absent additional information about this incident, Davis's vague allegations are insufficient to state a colorable conditions-of-confinement claim.
Separately, Davis fails to plead any facts suggesting that Sheriff Balaam personally participated in the events described in the SAC. Instead, Davis alleges only that he was “under the care of” Sheriff Balaam while he was allowed to urinate on himself at WCDF. (ECF No. 25 at 3.) These sparse allegations are insufficient to show that Sheriff Balaam was personally involved in a constitutional violation. Nor do they suggest “a sufficient causal connection between [Sheriff Balaam's] wrongful conduct and the [alleged] constitutional violation.” Hansen, 885 F.2d at 646.
For all of these reasons, the Court dismisses the conditions-of-confinement claim without prejudice and with leave to amend. If Davis wishes to pursue a conditions-of-confinement claim, he must include additional factual details about the November 30, 2021, incident in which he urinated on himself. Additionally, if Davis wishes to assert such a claim against Sheriff Balaam, he must plead facts demonstrating that Sheriff Balaam personally participated in the deprivation of his constitutional rights, or that Sheriff Balaam engaged in conduct that contributed to the alleged constitutional violation.
B. Municipal Liability
Because Washoe County is a municipality, it may be held liable in a § 1983 action only under a theory of municipal liability. See Dykes v. Naph Care Med. Billing, Case No. 3:20-cv-00312-MMD-WGC, 2020 WL 2926461, at *4 (D. Nev. June 3, 2020) (“If Plaintiff wishes to file an amended complaint against Washoe County, he must name Washoe County as a defendant and state a colorable due process claim against Washoe County based on a theory of municipal liability.”).
A municipality may be found liable under § 1983 only where the municipality itself causes the violation at issue. See City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989) (citing Monell v. N.Y.C. Dep't of Social Servs., 436 U.S. 658 (1978)). To state a claim for municipal liability, a plaintiff must allege that he suffered a constitutional deprivation that was the product of a policy or custom of the local government unit. See id. “Official municipal 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). Municipalities are not vicariously liable under § 1983 for their employees' actions. See id. at 60.
A policy has been defined as “a deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing Monell, 436 U.S. at 690); see also Waggy v. Spokane Cnty., 594 F.3d 707, 713 (9th Cir. 2010). The weight of authority has established that a “policy can be one of action or inaction” within the meaning of Monell. Waggy, 594 F.3d at 713 (citing City of Canton, 489 U.S. at 388). “Both types of claims require that the plaintiff prove a constitutional violation.” Id. Merely including a conclusory allegation that there is a custom or policy is insufficient. Iqbal, 556 U.S. at 68081. Thus, a plaintiff must go beyond bare assertions and plead facts sufficient to show that there is a policy and what the policy is. See id. at 678-81.
Davis fails to state a colorable municipal liability claim. First, he does not adequately allege an underlying constitutional violation-one of the elements of a municipal liability claim. See Lockett v. Cnty. of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020) (“Monell claims . . . require a plaintiff to show an underlying constitutional violation.”). Second, Davis alleges no facts showing that a custom or policy caused the alleged constitutional violation. Specifically, he fails to allege facts suggesting that a custom or policy caused jail officials to allow him to urinate on himself while he was detained at WCDF. To the contrary, Davis appears to allege that the incident resulted from Defendants' failure to follow “the custom” of allowing pretrial detainees to “use the jail facility restroom” if they “need to go to the restroom.” (ECF No. 25 at 3.) “The failure of individual employees to follow municipal policies is insufficient to establish Monell liability.” Morrison v. City of Los Angeles, Case No. 19-cv-1961, 2019 WL 3017762, at *5 (C.D. Cal. July 10, 2019) (collecting cases). For these reasons, Davis fails to state a colorable municipal liability claim. Thus, the Court dismisses the municipal liability claim without prejudice and with leave to amend. If Davis wishes to pursue a claim against Washoe County, he must allege facts showing not only that his constitutional rights were violated, but also that these constitutional violations were caused by a policy or custom adopted by Washoe County.
C. Leave to Amend
Davis is granted leave to file a third amended complaint to cure the deficiencies of the SAC. If Davis chooses to file a third amended complaint, he is advised that a third amended complaint supersedes (replaces) the SAC and, thus, the third amended complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve them for appeal). Davis's third amended complaint must contain all claims, defendants, and factual allegations that he wishes to pursue in this lawsuit. Moreover, Davis should file the third amended complaint on this Court's approved form, and it must be entitled “Third Amended Complaint.”
The Court notes that if Davis chooses to file a third amended complaint curing the deficiencies outlined in this order, he will file the third amended complaint within 30 days from the date of entry of this order. If Davis chooses not to file a third amended complaint curing the stated deficiencies, the Court will dismiss this case without prejudice.
III. DAVIS'S MOTIONS
A. Motion for Appointment of Counsel
Davis has filed a motion for appointment of counsel. (ECF No. 24.) A litigant does not have a constitutional right to appointed counsel in § 1983 actions. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any person unable to afford counsel.” However, the court will appoint counsel for indigent civil litigants only in “exceptional circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 action). “When determining whether ‘exceptional circumstances' exist, a court must consider the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.” Id. “Neither of these considerations is dispositive and instead must be viewed together.” Id. Here, the Court does not find exceptional circumstances that warrant the appointment of counsel at this time. The Court thus denies the motion for appointment of counsel without prejudice.
B. Motion for ADR Settlement
Davis has filed a motion seeking “an ADR settlement” in this case. (ECF No. 26.) The Court denies this motion. It appears that Davis seeks a court-conducted settlement conference. But Davis has yet to file a complaint that states a colorable claim, and no Defendant has been served in this action. Accordingly, the Court will not order a settlement conference at this time.
The Court has an inmate early mediation program that is designed to save resources by referring the parties in some civil rights cases to mediation. The program is typically reserved for civil rights cases against employees of the Nevada Department of Corrections (“NDOC”). The SAC concerns events that took place at WCDF, which is not an NDOC facility. Thus, the Court notes that, even if Davis's third amended complaint states a colorable claim, this case will not be referred to the inmate early mediation program.
IV. CONCLUSION
It is therefore ordered that the SAC (ECF No. 25), which is the operative complaint in this action, is dismissed in its entirety without prejudice and with leave to amend.
It is further ordered that, if Davis chooses to file a third amended complaint curing the deficiencies of his SAC, as outlined in this order, he must file the third amended complaint within 30 days from the date of entry of this order.
It is further ordered that the Clerk of the Court will send to Davis the approved form for filing a § 1983 complaint, instructions for the same, and a copy of his SAC (ECF No. 25). If Davis chooses to file a third amended complaint, he should use the approved form and he will write the words “Third Amended” above the words “Civil Rights Complaint” in the caption.
It is further ordered that, if Davis chooses to file a third amended complaint, the Court will screen that complaint in a separate screening order. The screening process may take several months.
It is further ordered that, if Davis fails to timely file a third amended complaint curing the deficiencies outlined in this order, this action will be dismissed without prejudice.
It is further ordered that the motion for appointment of counsel (ECF No. 24) is denied without prejudice.
It is further ordered that the motion for ADR settlement (ECF No. 26) is denied.