Opinion
Civil No. 06cv0010 BTM (AJB).
April 11, 2006
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, AND (2) SUA SPONTE DISMISSING COMPLAINT WITHOUT PREJUDICE PER 28 U.S.C. § 1915(e)(2)
Plaintiff, a civilly committed person residing at Atascadero State Hospital in Atascadero, California and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, along with a Motion to Proceed In Forma Pauperis ("IFP") [Doc. No. 2]. Plaintiff alleges that he was denied adequate dental care while he was housed at George Bailey Detention Facility in 2005. (Comp. at 3-5)
Referral to U.S. Magistrate Judge per S.D. CAL. CIVLR 72.3 These proceedings have been referred to the Honorable Magistrate Judge Anthony J. Battaglia by Local Rule 72.3(e), "Assignment of § 1983 Prisoner Civil Cases to United States Magistrate Judges," pursuant to 28 U.S.C. § 636.
I. Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $250. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to prepay the entire fee only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Here, The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C. § 1915(a)(1) and S.D. CAL. CIVLR 3.2. Based upon this financial information, the Court GRANTS Plaintiff's Motion to Proceed IFP. Because Plaintiff is a civil committee and not a "prisoner" as defined by 28 U.S.C. § 1915(h), the Court will waive the initial civil filing fee. See Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000).
II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2)
A complaint filed by any person proceeding in forma pauperis is subject to sua sponte dismissal to the extent it is "frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that "the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.").
"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (§ 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)."). However, while liberal construction is "particularly important in civil rights cases," Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the Court may not "supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The district court should grant leave to amend, however, unless it determines that "the pleading could not possibly be cured by the allegation of other facts" and if it appears "at all possible that the plaintiff can correct the defect." Lopez, 203 F.3d at 1130-31.
In his Complaint, Plaintiff alleges that an unnamed nurse and dentist at George Bailey Detention Facility denied him adequate dental care which led a diagnosis of advanced gum disease. (Compl. at 5) However, Plaintiff fails to identify or name either of these individuals as Defendants. In fact, the only named Defendants are Sheriff Kolender and the San Diego County Board of Supervisors. (Id. at 1-2) If Plaintiff seeks damages from Defendant Kolender based on his role as Sheriff of San Diego County, he must set forth specific factual allegations regarding this Defendant's participation in the alleged violation of his rights, because there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, "[t]he 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." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). In order to avoid the respondeat superior bar, Plaintiff must allege personal acts by each individual Defendant which have a direct causal connection to the constitutional violation at issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Plaintiff also lists as a Defendant the San Diego Board of Supervisors (Compl. at 1), but sets forth no specific factual allegations as to why this Defendant is directly responsible for the alleged violation of his rights. While the County of San Diego itself may be considered a "person," and therefore a proper defendant, under section 1983, see Monell v. Department of Social Services, 436 U.S. 658, 691 (1978); Hammond v. County of Madera, 859 F.2d 797, 801 (9th Cir. 1988), as a municipality it may be held liable under section 1983 only where the Plaintiff alleges facts to show that a constitutional deprivation was caused by the implementation or execution of "a policy statement, ordinance, regulation, or decision officially adopted and promulgated" by the County. Monell, 436 U.S. at 690; Board of the County Commissioners v. Brown, 520 U.S. 397, 402-04 (1997); Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995).
Thus, even were the Court to liberally construe Plaintiff's naming as a Defendant the "San Diego Board of Supervisors" as an attempt to state a claim against the County of San Diego, Plaintiff has not stated a section 1983 claim against this Defendant because he has failed to allege that any individual County employee deprived him of a constitutional right pursuant to official municipal policy, custom or practice. See Monell, 436 U.S. at 690; Brown, 520 U.S. at 403.
For these reasons the Court finds that Plaintiff's Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2). However, because it is not entirely clear that "the pleading could not possibly be cured by the allegation of other facts," and it appears "possible that the plaintiff can correct the defect," Lopez, 203 F.3d at 1130-31, he is granted leave to amend the complaint subject to the conditions listed at the end of this Order. Plaintiff must set forth specific allegations regarding each named Defendant in any amended complaint.
III. Conclusion and Order
Good cause appearing, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion to Proceed IFP per 28 U.S.C. § 1915(a) [Doc. No. 2] is GRANTED. IT IS FURTHER ORDERED that:
2. The case is DISMISSED without prejudice for failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2).
3. Plaintiff is granted forty five (45) days in which to file an amended complaint in an attempt to cure the deficiencies of pleading noted above. Plaintiff's Amended Complaint must be complete in itself without reference to the superseded pleading. See S.D. CA. CIV. L. R. 15.1. Defendants not named and all claims not re-alleged in the Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
IT IS SO ORDERED.