Opinion
Case No. 1:19-cv-00148-DCN
08-06-2019
MICHAEL V. LUJAN, Plaintiff, v. ELI LILLY PHARMACEUTICALS; CHASE BANK; STATE OF UTAH; FARMINGTON COUNTY JAIL; and S. LUJAN, Defendants.
INITIAL REVIEW ORDER BY SCREENING JUDGE
The Clerk of Court conditionally filed Plaintiff Michael V. Lujan's Complaint as a result of Plaintiff's status as an inmate and in forma pauperis request. The Court now reviews the Complaint to determine whether it should be summarily dismissed in whole or in part under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order directing Plaintiff to file an amended complaint if Plaintiff intends to proceed.
1. Screening Requirement
The Court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity, as well as complaints filed in forma pauperis, to determine whether summary dismissal is appropriate. The Court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b).
2. Pleading Standard
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A complaint fails to state a claim for relief under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient for the reviewing court plausibly "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. In other words, although Rule 8 "does not require detailed factual allegations, ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (internal quotation marks omitted). If the facts pleaded are "merely consistent with a defendant's liability," or if there is an "obvious alternative explanation" that would not result in liability, the complaint has not stated a claim for relief that is plausible on its face. Id. at 678, 682 (internal quotation marks omitted).
3. Factual Allegations
Plaintiff is a prisoner in the custody of the Idaho Department of Correction. Plaintiff alleges that Defendant Chase Bank acted unconstitutionally and committed a "quasi-tort upon [Plaintiff]," when it allegedly "cashed [a] forged check and committed financial fraud." (Id. at 2.) The Complaint contains no other factual allegations against any Defendant, but it appears Plaintiff may also be seeking to sue an unidentified defendant for medical malpractice. (See id.)
Plaintiff has not alleged sufficient facts to proceed with the Complaint. The Court will, however, grant Plaintiff 28 days to amend the Complaint. Any amended complaint must comply with this Order.
4. Governing Legal Standards
Mindful of Plaintiff's pro se status, the Court will set forth certain legal standards that might, or might not, apply to the claims Plaintiff intends to assert in the instant action. Plaintiff is advised that an amended complaint cannot simply restate these standards of law. Instead, an amended complaint must include specific facts supporting the elements of each claim and must allege facts showing a causal link between each defendant and Plaintiff's injury or damage. Alleging "the mere possibility of misconduct" is not enough. Iqbal, 556 U.S. at 679.
A. Section 1983 Claims
Plaintiff asserts some of his claims under 42 U.S.C. § 1983, the civil rights statute. To state a plausible civil rights claim, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To be liable under § 1983, "the defendant must possess a purposeful, a knowing, or possibly a reckless state of mind." Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015). Negligence is not actionable under § 1983, because a negligent act by a public official is not an abuse of governmental power but merely a "failure to measure up to the conduct of a reasonable person." Daniels v. Williams, 474 U.S. 327, 332 (1986).
Governmental officials generally are not liable for damages in their individual capacities under § 1983 unless they personally participated in the alleged constitutional violations. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Iqbal, 556 U.S. at 677 ("[E]ach Government official, his or her title notwithstanding, is only liable for his or her own misconduct."). Section 1983 does not allow for recovery against an employer or principal simply because an employee or agent committed misconduct. Taylor, 880 F.2d at 1045. However, "[a] defendant may be held liable as a supervisor under § 1983 'if there exists ... a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.'" Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). A plaintiff can establish this causal connection by alleging that a defendant (1) "set[] in motion a series of acts by others"; (2) "knowingly refus[ed] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury"; (3) failed to act or improperly acted in the training, supervision, or control of his subordinates"; (4) "acquiesc[ed] in the constitutional deprivation"; or (5) engag[ed] in "conduct that showed a reckless or callous indifference to the rights of others." Id. at 1205-09.
To bring a § 1983 claim against a municipality (local governmental entity) or a private entity performing a government function, a plaintiff must allege that the execution of an official policy or unofficial custom inflicted the injury of which the plaintiff complains, as required by Monell v. Department of Social Services of New York, 436 U.S. 658, 694 (1978). See also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (applying Monell to private entities performing a government function). Under Monell, the requisite elements of a § 1983 claim against a municipality or private entity performing a state function are the following: (1) the plaintiff was deprived of a constitutional right; (2) the municipality or entity had a policy or custom; (3) the policy or custom amounted to deliberate indifference to plaintiff's constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1110-11 (9th Cir. 2001). Further, a municipality or private entity performing a state function "may be held liable under § 1983 when the individual who committed the constitutional tort was an official with final policy-making authority or such an official ratified a subordinate's unconstitutional decision or action and the basis for it." Clouthier v. County of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010), overruled in part on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1069 (9th Cir. 2016) (en banc).
An unwritten policy or custom must be so "persistent and widespread" that it constitutes a "permanent and well settled" practice. Monell, 436 U.S. at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970)). "Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).
Section 1983 provides for a remedy only against a person acting under color of state law. This requirement of state action means that § 1983 does not provide a remedy for purely private conduct, "no matter how unfair that conduct may be." NCAA v. Tarkanian, 488 U.S. 179, 191 (1988). A private party can be subject to suit under § 1983 for violating a plaintiff's civil rights only in narrow circumstances. In the case of a private party, "state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (internal quotation marks omitted).
The Supreme Court has identified several contexts in which a private party can be considered a state actor for purposes of a civil rights action. Id. at 296. These include the following situations: (1) the private party's action results from the state's "exercise of coercive power" or "significant encouragement"; (2) the private party participates in "joint activity" with the state; (3) the private party is "controlled by an agency of the State"; (4) the private party "has been delegated a public function by the State"; and (5) the private party is "entwined with governmental policies," or "the government is entwined in [the private party's] management or control." Id. (internal quotation marks omitted). A private party "may be designated a state actor for some purposes but still function as a private actor in other respects." Caviness v. Horizon Community Learning Ctr., 590 F.3d 806, 814 (9th Cir. 2010).
The Eleventh Amendment prohibits a federal court from entertaining a suit brought by a citizen against a state or state entity absent a waiver of state sovereign immunity. Hans v. Louisiana, 134 U.S. 1, 16-18 (1890); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Section 1983 does not constitute such a waiver. Esquibel v. Idaho, No. 1:11-cv-00606-BLW, 2012 WL 1410105, at *6 (D. Idaho Apr. 23, 2012) (unpublished). Moreover, only a "person" may be sued pursuant to 42 U.S.C. § 1983, and a state is not considered a "person" under that statute. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).
B. Bivens Claims
Plaintiff also asserts civil rights claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the United States Supreme Court recognized a cause of action for monetary damages against federal officials in their individual capacities for a violation of constitutional rights. A Bivens action is the federal analog to an action brought under § 1983, and a plaintiff asserting a Bivens claim must show that the defendant was acting under color of federal law. Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982). A plaintiff may not use a Bivens action to bring claims against employers of individual government officers, government agencies, or the United States. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70-71 (2001); Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-85 (1994).
C. ADA Claims
Plaintiff asserts some of his claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. The ADA generally prohibits discrimination based on an individual's disability. Title II of the ADA applies to an "individual with a disability who, with or without reasonable modifications to rules, policies, or practices ... meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2).
Title II extends to prison inmates who are deprived of the benefits of participation in prison programs, services, or activities because of a disability. See Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 211 (1998). In order to proceed with an ADA claim, Plaintiff must plausibly allege (1) that he has a disability; (2) that he is otherwise qualified to participate in or receive a public entity's services, programs, or activities; (3) that he was denied the benefits of those services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) that such exclusion, denial of benefits, or discrimination was by reason of his disability. See Weinreich v. Los Angeles Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997).
The governmental entity is required to "make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7). "The ADA does not require perfect parity among programs offered by various facilities that are operated by the same umbrella institution. But an inmate cannot be categorically excluded from a beneficial prison program based on his or her disability alone." Pierce v. Cnty. of Orange, 526 F.3d 1190, 1221 (9th Cir. 2008).
Unlike § 1983 claims, a Title II ADA claim must, by statutory definition, be brought against the state or the state entity. See United States v. Georgia, 546 U.S. 151, 159 (2006) (holding that Title II of the ADA validly abrogates Eleventh Amendment immunity for states for conduct that actually violates the Fourteenth Amendment); Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) ("[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official in her individual capacity to vindicate rights created by Title II of the ADA or section 504 of the Rehabilitation Act."); compare Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003) (per curiam) (holding that Title II's statutory language does not prohibit a plaintiff from requesting injunctive action against state officials in their official capacities).
D. State Law Claims
Though Plaintiff did not check the box on the form Complaint to indicate he was attempting to assert claims under Idaho state law, his description of his claim against Chase Bank, as a tort involving fraud, may be intended to assert such claims. (Compl. at 1-2.) The Complaint does not allege a plausible state law claim. Additionally, because the Complaint fails to state a federal claim upon which relief may be granted, the Court would decline to exercise supplemental jurisdiction over state law claims in any event. See U.S.C. § 1367(c). If Plaintiff ultimately proceeds on a federal claim in an amended complaint, and if the amended complaint states a plausible state law claim, the Court will reconsider the issue of supplemental jurisdiction.
5. Standards for Amended Complaint
If Plaintiff chooses to amend the Complaint, Plaintiff must demonstrate how the actions complained of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980), abrogated on other grounds by Kay v. Ehler, 499 U.S. 432 (1991). Plaintiff must also allege a sufficient causal connection between each defendant's actions and the claimed deprivation. Taylor, 880 F.2d at 1045; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss" or to survive screening under 28 U.S.C. §§ 1915 and 1915A. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Iqbal, 556 U.S. at 678 ("Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." (internal quotation marks and alteration omitted)).
Rather, for each § 1983 or Bivens claim against each defendant, Plaintiff must state the following: (1) the name of the person or entity that caused the alleged deprivation of Plaintiff's constitutional rights; (2) facts showing the defendant is a state or federal actor (such as state employment or a state contract) or a private entity performing a state function; (3) the dates on which the conduct of the defendant allegedly took place; (4) the specific conduct or action Plaintiff alleges is unconstitutional; (5) the particular federal constitutional provision (or state law provision) Plaintiff alleges has been violated; (6) facts alleging that the elements of the violation are met; (7) the injury or damages Plaintiff personally suffered; and (8) the particular type of relief Plaintiff is seeking from each defendant. In addition, if Plaintiff includes claims against a local governmental entity or a private entity performing a governmental function, Plaintiff must allege facts meeting the Monell requirements described above.
For each ADA claim against each Defendant, Plaintiff must include facts supporting a reasonable inference that (1) Plaintiff has a disability, (2) he is qualified to participate in a governmental entity's program or receive a governmental entity's benefit, (3) he was denied such participation or benefit by the governmental entity, and (4) Plaintiff's disability was the reason for the denial. See Weinreich, 114 F.3d at 978.
Further, any amended complaint must contain all of Plaintiff's allegations in a single pleading and cannot rely upon, attach, or incorporate by reference other pleadings or documents. Dist. Idaho Loc. Civ. R. 15.1 ("Any amendment to a pleading, whether filed as a matter of course or upon a motion to amend, must reproduce the entire pleading as amended. The proposed amended pleading must be submitted at the time of filing a motion to amend."); see also Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) ("[An] amended complaint supersedes the original, the latter being treated thereafter as non-existent."), overruled in part on other grounds by Lacey v. Maricopa County, 693 F.3d 896, (9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990) (holding that the district court erred by entering judgment against a party named in the initial complaint, but not in the amended complaint).
Plaintiff must set forth each different factual allegation in a separate numbered paragraph. The amended complaint must be legibly written or typed in its entirety, and it should be clearly designated as the "First Amended Complaint." Plaintiff's name and address should be clearly printed at the top left corner of the first page of each document filed with the Court.
If Plaintiff files an amended complaint, Plaintiff must also file a "Motion to Review the Amended Complaint." If Plaintiff does not amend within 28 days, or if the amendment does not comply with Rule 8, this case may be dismissed without further notice. See Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) ("When a litigant knowingly and repeatedly refuses to conform his pleadings to the requirements of the Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim.").
ORDER
IT IS ORDERED:
1. Plaintiff has 28 days within which to file an amended complaint as described above. If Plaintiff does so, Plaintiff must file (along with the amended complaint) a Motion to Review the Amended Complaint. If Plaintiff does not amend within 28 days, this case may be dismissed without further notice.
2. Plaintiff's request for appointment of counsel (contained in the Complaint) is DENIED without prejudice. Plaintiff may renew the request for counsel in an amended complaint.
DATED: August 6, 2019
/s/_________
David C. Nye
Chief U.S. District Court Judge