Hopton v. Fresno County Health Human

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6 UNITED STATES DISTRICT COURT

7 EASTERN DISTRICT OF CALIFORNIA

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9 JOSE LEON HOPTON, CASE NO. 1:20-cv-0141-NONE-SKO

10 Plaintiff, ORDER GRANTING LEAVE TO

AMEND COMPLAINT

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v.

(Doc. 1)

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FRESNO COUNTY HUMAN HEALTH TWENTY-ONE (21) DAY DEADLINE

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SYSTEM, et al.,

14 Defendants.

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I. INTRODUCTION

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23 On January 28, 2020, Plaintiff filed a complaint under 42 U.S.C. § 1983 against Defendants

24 “County of Fresno D.C.F.S./C.P.S.,” “County of Fresno Public Defender,” “County of Fresno

25 Sheriffs Dpt.,” “Correctional Medical Group,” and “Fresno County Health Human Services.” (Doc.

26 1.) Plaintiff’s complaint alleges four claims: (1) “Right to fair proceedings and fair investigation of

27 child custody and adoption”; (2) “Fair medical treatment by correctional facility”; (3) “Right to fair

28 representation and due process during court proceedings”; and (4) “Discrimination & denial of

1 services under color of law.” (See id.) Plaintiff also filed a motion to proceed in forma paupers,

2 which the Court granted on February 20, 2020. (Docs. 3, 7.)

3 Plaintiff’s complaint is now before the Court for screening. The Court has determined that

4 Plaintiff fails to plead any plausible claim to relief, and the complaint violates the pleading standards

5 of the Federal Rules of Civil Procedure. Thus, Plaintiff is provided the pleading and legal standards

6 for his claims and is granted leave to file an amended complaint.

7 The Court further advises Plaintiff that his claims cannot proceed in one complaint because

8 they are unrelated claims against unrelated defendants. See Fed. R. Civ. P. 18, 20, 21. As set forth

9 below, claims related to Plaintiff’s child custody issues may proceed together in a regular civil case;

10 claims related to Plaintiff’s medical treatment in jail must be filed in a separate complaint and

11 proceed as a prisoner complaint related to conditions of confinement;1 and claims related to

12 ineffective assistance of counsel in Plaintiff’s criminal case must be filed in a separate complaint

13 and proceed as a petition for habeas corpus under 28 U.S.C. § 2254.

14 A. Screening Requirement and Standard

15 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen

16 each case, and shall dismiss the case at any time if the Court determines that the allegation of poverty

17 is untrue, or the action or appeal is frivolous or malicious, fails to state a claim upon which relief

18 may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28

19 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend

20 may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

21 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).

22 B. Pleading Requirements

23 Under Federal Rule of Civil Procedure 8(a), a complaint must contain “a short and plain

24 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2).

25 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of

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1 On February 20, 2020, Plaintiff filed a motion requesting relief in the form of an order directing Fresno County Jail to

27 provide him access to the library and medical facilities. (Doc. 8.) Because Plaintiff is directed to file his claims related

to medical treatment at the jail in a separate case, or in an amended complaint in this case, those requests are necessarily

28 moot until Plaintiff complies with this order. Thus, the requests are denied as moot, but Plaintiff may re-file the requests

1 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,

2 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In determining

3 whether a complaint states a claim on which relief may be granted, allegations of material fact are

4 taken as true and construed in the light most favorable to the plaintiff. See Love v. United States,

5 915 F.2d 1242, 1245 (9th Cir. 1989). Moreover, since plaintiff is appearing pro se, the Court must

6 construe the allegations of the Complaint liberally and must afford plaintiff the benefit of any doubt.

7 See Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). However, “the

8 liberal pleading standard . . . applies only to a plaintiff’s factual allegations.” Neitzke v. Williams,

9 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply

10 essential elements of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin.,

11 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.

12 1982)).

13 Further, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

14 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of

15 action will not do . . . . Factual allegations must be enough to raise a right to relief above the

16 speculative level.” See Twombly, 550 U.S. at 555 (internal citations omitted); see also Iqbal, 556

17 U.S. at 678 (To avoid dismissal for failure to state a claim, “a complaint must contain sufficient

18 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has

19 facial plausibility when the plaintiff pleads factual content that allows the court to draw the

20 reasonable inference that the defendant is liable for the misconduct alleged.”) (internal citations

21 omitted).

22 Under Rules 18 and 20, “a plaintiff may not proceed on a myriad of unrelated claims against

23 different defendants in a single action.” Beltran v. Superior Court of California, Case No. 1:19-cv-

24 01436-LJO-EPG (PC), 2020 WL 363813, at *2 (E.D. Cal. Jan. 22, 2020) (citing Fed. R. Civ. P.

25 18(a), 20(a)(2)). “The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a

26 claim to relief as an original claim, counterclaim, cross-claim, or third party claim, may join, either

27 as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has

28 against an opposing party.’ Thus, multiple claims against a single party are fine, but Claim A against

1 Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims

2 against different defendants belong in different suits, not only to prevent the sort of morass [a

3 multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required

4 filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals

5 that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” K’napp

6 v. California Dept. of Corrections, 2013 WL 5817765, at *2 (E.D. Cal. Oct. 29, 2013) (quoting

7 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)); see also Fed. R. Civ. P. 18(a), 20(a)(2). A

8 court may on its own motion drop improperly joined parties or sever improperly joined claims. See

9 Fed. R. Civ. P. 21.

10 II. DISCUSSION

11 A. Plaintiff’s Allegations

12 Plaintiff’s allegations are unclear and completely devoid of dates and identities of any

13 individuals involved. (See Doc. 1 at 4–7.) In his first claim, Plaintiff alleges facts related to a child

14 custody proceeding and states that “Fresno County Department of Child Protective Services and the

15 Fresno County Superior Court proceeded with orders removing a child without conducting a fair

16 investigation or providing parents with opportunity to appear,” “the court allowed prejudicial parties

17 to be present,” “parent was denied county services for reunification . . . based upon racial profiling,”

18 and “County of Fresno C.P.S. continually violates court orders for visitation by failing to make

19 minor available for visits.” (Id. at 4.) In the second claim, Plaintiff alleges that he was attacked by

20 an animal and then incarcerated, and “Defendants” have “denied treatment” and “not allowed

21 medical records to be reviewed by private 3rd party medical agencies.” (Id. at 5.) In the third claim,

22 Plaintiff alleges that “in both criminal and family cases . . . counsel provided by the Office of the

23 Public Defender has intentionally prejudiced . . . proceedings.” (Id. at 6.) In the fourth claim,

24 Plaintiff alleges that “The Dept of Children and Family Services” denied Plaintiff public assistance

25 and then Plaintiff was “discriminated against and as a result fell into conditions that the department

26 of children family services later held as reason to seek custodial action any [sic] adoption through

27 termination of parental rights.” (Id. at 7.)

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1 B. Legal Standards

2 1. Shotgun Pleading

3 A “[s]hotgun pleading occurs when one party pleads that multiple parties did an act, without

4 identifying which party did what specifically; or when one party pleads multiple claims, and does

5 not identify which specific facts are allocated to which claim.” Hughey v. Drummond, No. 2:14-cv-

6 00037-TLN-AC, 2014 WL 579365, at *5 (E.D. Cal. Nov. 6, 2014) (citation omitted). This violates

7 Rule 10 of the Federal Rules of Civil Procedure, which requires that “[a] party must state its claims

8 or defenses in numbered paragraphs, each limited as far as practicable to a single set of

9 circumstances,” and Rule 8, which requires that the complaint contain a “short and plain statement”

10 of entitlement to relief.

11 Here, as set forth below, Plaintiff may be able to allege cognizable claims against certain

12 defendants, but the major deficiency with the complaint as currently pleaded is that it is an

13 impermissible “shotgun” pleading. Plaintiff’s complaint alleges various claims but does not clearly

14 state which claim is alleged against which defendant, and which specific facts support each claim.

15 Plaintiff’s complaint is completely devoid of dates, identities of individuals involved, and any acts

16 committed by any persons that relate to any claim.

17 As currently drafted, it is simply not clear what Plaintiff alleges happened, other than in the

18 most vague and general terms. (See, e.g., Doc. 1 at 4 (“Fresno County Department of Child

19 Protective Services and the Fresno County Superior Court proceeded with orders removing a child

20 without conducting a fair investigation or providing parents with opportunity to appear . . . The court

21 allowed prejudicial parties to be present”), 5 (“Defendants will not . . . commit care of Plaintiff to

22 qualified medical staff insofar as allowing nurse practitioner or physicians assistant to treat or

23 recommend treatment . . . Defendants have not allowed medical records to be reviewed by private

24 3rd party medical agencies”), 6 (“In both criminal and family law cases, before Fresno County

25 Superior Court, counsel provided by the Office of the Public Defender has intentionally prejudiced

26 . . . proceedings by continuing to operate in [sic] behalf of the Plaintiff after known conflict of

27 interest”), 7 (alleging Plaintiff was denied public assistance and then discussing removal of

28 Plaintiff’s children as somehow related).

1 This is not permissible because it does not give Defendants “fair notice” of the claims against

2 which they must defend and the facts and legal theories that give rise to the claims. See Fed. R. Civ.

3 P. 8(a)(2). In any amended complaint, Plaintiff must clearly state which claim is against which

4 Defendant, the legal basis for the claim, and the facts that support and show that the specific

5 defendant committed the violation asserted as the legal basis for the claim. See Fed. R. Civ.

6 P. 8(a).

7 2. Section 1983

8 It appears that Plaintiff is seeking to address purported violations of his civil rights by

9 attempting to assert claims pursuant to Section 1983, which "is a method for vindicating federal

10 rights elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271 (1994). Section 1983 provides

11 in relevant part:

12 Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

13 be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

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Constitution and laws, shall be liable to the party injured in an action at law, suit in

15 equity, or other proper proceeding for redress.

16 42 U.S.C. § 1983.

17 To state a cognizable claim under Section 1983, a plaintiff must allege facts from which it

18 may be inferred (1) he was deprived of a federal right, and (2) a person or entity who committed the

19 alleged violation acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Williams v.

20 Gorton, 529 F.2d 668, 670 (9th Cir. 1976). A plaintiff must further demonstrate that each defendant

21 personally participated in the deprivation of his or her rights. Iqbal, 556 U.S. at 676-77, 129 S.Ct.

22 at 1949; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City

23 of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). Plaintiff must clearly identify which defendant(s)

24 he believes are responsible for each violation of his constitutional rights and the supporting factual

25 basis, as his complaint must put each defendant on notice of Plaintiff’s claims against him or her.

26 See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).

27 a. Fourteenth Amendment—Due Process

28 Parents have a constitutionally protected liberty interest in the care and custody of their

1 children. See Santosky v. Kramer, 455 U.S. 745, 753 (1982). A parent “may state a cause of action

2 under [Section] 1983 when she alleges that the state terminated her parent-child relationship without

3 due process of law.” Smoot v. City of Placentia, 950 F. Supp. 282, 283 (C.D. Cal. 1997). The Ninth

4 Circuit has generally characterized the right to familial association as a liberty right under the Due

5 Process Clause of the Fourteenth Amendment. Lee v. City of Los Angeles, 250 F.3d 668, 685–86

6 (9th Cir. 2001); Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000) (“Parents and children have

7 a well-elaborated constitutional right to live together without governmental interference. . . . That

8 right is an essential liberty interest protected by the Fourteenth Amendment’s guarantee that parents

9 and children will not be separated by the state without due process of law except in an emergency.”).

10 See also Keates v. Koile, 883 F.3d 1228, 1236 (9th Cir. 2018) (explaining constitutional standards

11 for evaluating claims based upon removal of children).

12 However, social workers are absolutely immune from civil liability for claims concerning

13 their “discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take

14 custody away from parents.” Beltran v. Santa Clara Cty., 514 F.3d 906, 908 (9th Cir. 2008) (quoting

15 Miller v. Gammie, 335 F.3d 889, 898 (9th Cir. 2003)); see also Meyers v. Contra Costa Cty. Dep’t

16 of Soc. Serv., 812 F.2d 1154, 1157 (9th Cir. 1987). The immunity “covers the official activities of

17 social workers only when they perform quasi-prosecutorial or quasi-judicial functions in juvenile

18 dependency court.” Hardwick v. Cty. of Orange, 844 F.3d 1112, 1115 (9th Cir. 2017). Social

19 workers may have absolute immunity when discharging functions that are “critical to the judicial

20 process itself.” Beltran v. Santa Clara Cty., 514 F.3d 906, 908 (9th Cir. 2008). “[S]ocial workers

21 are not afforded absolute immunity for their investigatory conduct, discretionary decisions or

22 recommendations.” Tamas v. Dep't of Social & Health Servs., 630 F.3d 833, 842 (9th Cir. 2010).

23 In those instances, only qualified, not absolute, immunity is available. Miller v. Gammie, 335 F.3d

24 889, 898 (9th Cir. 2003). Examples of such discretionary decisions include “decisions and

25 recommendations as to the particular home where a child is to go or as to the particular foster parents

26 who are to provide care.” Id. Further “[j]udges are absolutely immune from damage actions for

27 judicial acts taken within the jurisdiction of their courts . . . A judge loses absolute immunity only

28 when [the judge] acts in the clear absence of all jurisdiction or performs an act that is not judicial in

1 nature.” Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988).

2 Here, Plaintiff fails to plead sufficient facts to demonstrate he was not accorded the due

3 process rights of notice and an opportunity to be heard in the proceeding, except in conclusory terms.

4 See Kirk v. I.N.S., 927 F.2d 1106, 1107 (9th Cir. 1991) (“Procedural due process requires adequate

5 notice and an opportunity to be heard.”). Nor are there sufficient facts alleging “reckless, intentional

6 and deliberate acts and omissions of defendants” constituting an “unwarranted interference” with

7 the rights of family members. Cf. Lee, 250 F.3d at 685–86. Further, although Plaintiff does not

8 name a single individual defendant, he alleges that “Fresno County Department of Child Protective

9 Services and the Fresno County Superior Court” committed certain acts. (See Doc. 1 at 4.) To the

10 extent Plaintiff intends to allege that a judge or social worker performed functions within the roles

11 described above, those individuals would be immune. As described below, Plaintiff does not allege

12 claims against any individual defendant, and his claims as currently pleaded are not sufficient to

13 allege a claim against Fresno County. Plaintiff is granted leave to amend the complaint, or file a

14 separate action, attempting to allege claims against individual defendants or against Fresno County,

15 as described below.

16 b. Deliberate Indifference

17 “Prison officials violate the Eighth Amendment if they are ‘deliberate[ly] indifferen[t] to [a

18 prisoner’s] serious medical needs.’” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (quoting

19 Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “A medical need is serious if failure to treat it will

20 result in significant injury or the unnecessary and wanton infliction of pain.” Peralta, 744 F.3d at

21 1081 (internal quotation marks and citations omitted). “A prison official is deliberately indifferent

22 to that need if he ‘knows of and disregards an excessive risk to inmate health.’” Id. at 1082 (quoting

23 Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

24 The test for a deliberate indifference claim is thus two-pronged and has objective and

25 subjective components. See Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). To establish

26 a claim, a prisoner must first “show a serious medical need by demonstrating that failure to treat

27 [the] prisoner’s condition could result in further significant injury or the unnecessary and wanton

28 infliction of pain. Second, the plaintiff must show the defendants’ response to the need was

1 deliberately indifferent.” Id. (internal quotation marks and citation omitted).

2 As to the first, objective prong, “[i]ndications that a plaintiff has a serious medical need

3 include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and

4 worthy of comment or treatment; the presence of a medical condition that significantly affects an

5 individual's daily activities; or the existence of chronic and substantial pain.’” Colwell v. Bannister,

6 763 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted).

7 As to the second, subjective prong, deliberate indifference “describes a state of mind more

8 blameworthy than negligence” and “requires more than ordinary lack of due care for the prisoner’s

9 interests or safety.” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (internal quotation marks and

10 citation omitted). Deliberate indifference exists where a prison official “knows that [an] inmate[]

11 face[s] a substantial risk of serious harm and disregards that risk by failing to take reasonable

12 measures to abate it.” Id. at 847. In medical cases, this requires showing, “(a) a purposeful act or

13 failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the

14 indifference.” Wilhelm, 680 F.3d at 1122 (citation omitted). “A prisoner need not show his harm

15 was substantial; however, such would provide additional support for the inmate’s claim that the

16 defendant was deliberately indifferent to his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

17 2006) (citation omitted).

18 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060

19 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of facts from which

20 the inference could be drawn that a substantial risk of serious harm exists,’ but [he] ‘must also draw

21 the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “If a [prison official] should have

22 been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no

23 matter how severe the risk.’” Id. (internal quotation marks and citation omitted).

24 It appears Plaintiff’s allegations may meet the first, objective prong. Plaintiff alleges he

25 suffered an unspecified “animal attack” at some point prior to being admitted to Fresno County Jail.

26 (Doc. 1 at 5.) Plaintiff then later alleges that “contraction of rabine [sic] virus exaserbated [sic]

27 existing and further chronic medical conditions to be verified by discovery.” (Id.) Although largely

28 devoid of factual support, standing alone, an “animal attack” causing possible rabies is likely a

1 condition that “a reasonable doctor or patient would find important and worthy of comment or

2 treatment.” Colwell, 763 F.3d at 1066. However, Plaintiff does not meet the second, subjective

3 prong. Plaintiff states that in response to his medical needs, he was treated by a “nurse practitioner

4 or physicians assistant,” and appears to imply that he was misdiagnosed because this unnamed

5 “nurse practitioner or physicians assistant” apparently determined that a rabies vaccination was not

6 necessary. (See Doc. 1 at 5.) A misdiagnosis, though potentially negligent, does not amount to

7 deliberate indifference under the Eighth Amendment. See Estelle, 429 U.S. at 106 (“a complaint

8 that a physician has been negligent in diagnosing or treating a medical condition does not state a

9 valid claim” under the Eighth Amendment). Plaintiff’s allegations thus do not show that anyone

10 was deliberately indifferent to his medical needs. Further, as with his other claims, Plaintiff does

11 not allege claims against any individual defendant, and does not sufficiently allege a claim against

12 any entity defendant, as described below. Plaintiff is granted leave to amend the complaint, or file

13 a separate action, attempting to allege claims against individual or private entity defendants or

14 against Fresno County.

15 c. Entity Defendants

16 Plaintiff names “County of Fresno D.C.F.S/C.P.S.,” “County of Fresno Public Defender,”

17 “County of Fresno Sheriffs Dpt.,” “Correctional Medical Group,” and “Fresno County Health

18 Human Services” as defendants. Municipal departments are not appropriate defendants in a § 1983

19 suit. Private companies, such as “Correctional Medical Group,” are not appropriate defendants

20 either, absent factual allegations showing the company was acting under color of state law. As set

21 forth above, under § 1983 only a “person” acting under color of law may be sued for claims. The

22 term “persons” under § 1983 encompasses state and local officials sued in their individual capacities,

23 private individuals and entities which acted under color of state law, and local governmental entities.

24 Vance v. County of Santa Clara, 928 F. Supp. 993, 995–996 (N.D. Cal.1996). But “persons” does

25 not include municipal departments. Id. “[N]aming a municipal department as a defendant is not an

26 appropriate means of pleading a [Section] 1983 action against a municipality.” Stump v. Gates, 777

27 F. Supp. 808, 816 (D. Colo. 1991). See also, e.g., Stoll. v. Cty. of Kern, No. 1:05-CV-01059 OWW

28 SMS, 2008 WL 4218492, at *5 (E.D. Cal. Sept. 8, 2008) (dismissing from suit the defendant Kern

1 County Welfare Department, a municipal department of the defendant County of Kern). The Court

2 will provide Plaintiff with the legal standard applicable to a claim under § 1983 brought against

3 Fresno County. See id.

4 There is no respondeat superior liability under § 1983, i.e. no liability under the theory that

5 one is responsible for the actions or omissions of another, such as an employee. See Board of Cty.

6 Comm’rs. of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997); Tsao v. Desert Palace, Inc., 698 F.3d

7 1128, 1139, 1144 (9th Cir. 2012). Thus, a claim would not be stated against Fresno County merely

8 because that entity employed any alleged wrongdoers, as Plaintiff appears to plead.

9 Local governments, such as Fresno County, are “persons” subject to liability under § 1983

10 where official policy or custom causes a constitutional tort. See Monell v. Dep’t of Social Servs.,

11 436 U.S. 658, 690 (1978). To impose municipal liability under § 1983 for a violation of

12 constitutional rights, a plaintiff must show: “(1) that [the plaintiff] possessed a constitutional right

13 of which [he] was deprived; (2) that the municipality had a policy; (3) that this policy amounts to

14 deliberate indifference to the plaintiff’s constitutional right; and (4) that the policy is the moving

15 force behind the constitutional violation.” See Plumeau v. School Dist. #40 Cty. of Yamhill, 130

16 F.3d 432, 438 (9th Cir. 1997) (citations and internal quotation marks omitted). For municipal

17 liability, a plaintiff must plead sufficient facts regarding the specific nature of the alleged policy,

18 custom or practice to allow the defendant to effectively defend itself, and these facts must plausibly

19 suggest that the plaintiff is entitled to relief. See AE v. Cty. of Tulare, 666 F.3d 631, 636-37 (9th

20 Cir. 2012). It is not sufficient to merely allege that a policy, custom or practice existed or that

21 individual officers’ wrongdoing conformed to a policy, custom or practice. See id. at 636–68.

22 Plaintiff is granted leave to amend this complaint, or file a complaint in a new case, to

23 attempt to allege a § 1983 claim against Fresno County and against any private entity which Plaintiff

24 can sufficiently plead acted under color of state law. Plaintiff must be careful to allege the specific

25 policy, custom or practices that he contends give rise to liability and, in the case of a private entity,

26 allege specific facts showing the entity acted under color of state law.

27

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1 3. Habeas Action Under 28 U.S.C. § 2254

2 When seeking damages for an allegedly unconstitutional conviction or imprisonment, “a

3 [section] 1983 plaintiff must prove that the conviction or sentence has been reversed on direct

4 appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such

5 determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28

6 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 487-88 (1994). “A claim for damages bearing

7 that relationship to a conviction or sentence that has not been so invalidated is not cognizable under

8 [section] 1983.” Id. at 488.

9 Section 1983 and “the federal habeas corpus statute . . . both provide access to the federal

10 courts ‘for claims of unconstitutional treatment at the hands of state officials . . . [but] they differ in

11 their scope and operation.’” See Ramirez v. Galaza, 334 F.3d 850, 854 (9th Cir. 2003) (quoting

12 Heck, 512 U.S. 477, 480 (1994)). Federal courts must take care to prevent prisoners from relying

13 on section 1983 to subvert the differing procedural requirements of habeas corpus proceedings under

14 28 U.S.C. § 2254. See Heck, 512 U.S. at 486–87; see also Simpson v. Thomas, 528 F.3d 685, 695

15 (9th Cir. 2008). When a prisoner challenges the legality or duration of his custody, raises a

16 constitutional challenge which could entitle him to an earlier release (such as ineffective assistance

17 of counsel), or seeks remedies for purported deficiencies in his state court criminal case, his sole

18 federal remedy is the writ of habeas corpus. See Heck, 512 U.S. at 481–82; see also Edwards v.

19 Balisok, 520 U.S. 641, 648 (1997); Wolf v. McDonnell, 418 U.S. 539, 554 (1974); Preiser v.

20 Rodriguez, 411 U.S. 475 (1973).

21 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a

22 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The

23 exhaustion doctrine is based on comity to the state court and gives the state court the initial

24 opportunity to correct the state’s alleged constitutional deprivations. Coleman v. Thompson, 501

25 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982).

26 A petitioner can satisfy the exhaustion requirement by providing the highest state court with

27 a full and fair opportunity to consider each claim before presenting it to the federal court. Duncan

28 v. Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court was given

1 a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with

2 the claim’s factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes,

3 504 U.S. 1 (1992) (factual basis).

4 Additionally, the petitioner must have specifically told the state court that he was raising a

5 federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme

6 Court reiterated the rule as follows:

7

In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of

8 state remedies requires that petitioners “fairly presen[t]” federal claims to the

state courts in order to give the State the “opportunity to pass upon and correct

9 alleged violations of the prisoners' federal rights” (some internal quotation

marks omitted). If state courts are to be given the opportunity to correct alleged

10 violations of prisoners' federal rights, they must surely be alerted to the fact that

the prisoners are asserting claims under the United States Constitution. If a

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habeas petitioner wishes to claim that an evidentiary ruling at a state court trial

12 denied him the due process of law guaranteed by the Fourteenth Amendment,

he must say so, not only in federal court, but in state court.

13

Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:

14

Our rule is that a state prisoner has not “fairly presented” (and thus exhausted)

15 his federal claims in state court unless he specifically indicated to that court that

those claims were based on federal law. See Shumway v. Payne, 223 F.3d 982,

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987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court

17 has held that the petitioner must make the federal basis of the claim explicit

either by citing federal law or the decisions of federal courts, even if the federal

18 basis is “self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999)

(citing Anderson v. Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim

19 would be decided under state law on the same considerations that would control

resolution of the claim on federal grounds. Hiivala v. Wood, 195 F3d 1098,

20

1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996);

21 . . . .

22 In Johnson, we explained that the petitioner must alert the state court to the fact

that the relevant claim is a federal one without regard to how similar the state

23 and federal standards for reviewing the claim may be or how obvious the

violation of federal law is.

24

25 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons v.

26 Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001).

27 Failure to present claims for federal relief to the California Supreme Court will result in

28 dismissal. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d

1

v. Lundy, 455 U.S. 509, 521-22 (1982).

2

Plaintiff alleges that “counsel has failed to investigate and persue [sic] exculpatory evidence

3

that clearly would exonerate the Plaintiff from all allegations in all cases,” “counsel has failed in the

4

application of sound legal strategy as defined by law,” and “counsel . . . continu[ed] to operate in

5

[sic] behalf of the Plaintiff after known conflict of interest.” (Doc. 1 at 6.) It does not appear that

6

Plaintiff has presented his claims related to his criminal case to the California Supreme Court as

7

required by the exhaustion doctrine, although the Court cannot be sure because Plaintiff does not

8

even explain what criminal case he is referring to, but simply states counsel was ineffective in “all

9

cases.” (See Doc. 1 at 6.) If Plaintiff has exhausted all claims in state court for the criminal case he

10

is referring to, he may file a habeas corpus petition under 28 U.S.C. § 2254. However, Plaintiff

11

must file the petition in a separate case. The fee for filing a habeas petition is $5.00 pursuant to

12

28 U.S.C. § 1914, which will be waived on showing of poverty.

13

14 III. CONCLUSION AND ORDER

15 As noted above, the Court will provide Plaintiff with an opportunity to amend his claims and

16 cure, to the extent possible, the identified deficiencies, and file unrelated claims in separate cases if

17 desired. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff may not change the nature

18 of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d

19 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

20 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

21 the named defendants did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556

22 U.S. at 678–79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

23 right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted).

24 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. Lacey v.

25 Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s amended

26 complaint must be “complete in itself without reference to the prior or superseded pleading.” E.D.

27 Cal. L.R. 220. As stated above, Plaintiff’s amended complaint in this case must allege only

28 claims related to either his child custody proceedings or his medical treatment in jail, but not

1 both. If Plaintiff decides to proceed on claims related to both matters, he may file an amended

2 complaint in this case alleging claims related to one matter or the other, and file a new complaint in

3 a new case alleging claims related to the other matter. Finally, if Plaintiff decides to proceed with

4 his claims related to his criminal case, he may file a separate habeas corpus action.

5 Based on the foregoing, it is HEREBY ORDERED that:

6 1. Plaintiff is granted leave to file a first amended complaint;

7 2. The Clerk’s Office shall send Plaintiff two (2) civil rights complaint forms as well

8 as a habeas corpus petition form;

9 3. Within twenty-one (21) days from the date of service of this order, Plaintiff must

10 file:

11 a. a first amended complaint under 24 U.S.C. § 1983 alleging only claims

12 related to his child custody proceedings, or his medical treatment in

13 jail, but not both;2 or

14 b. a notice of voluntary dismissal.

15 4. If Plaintiff fails to file an amended complaint or fails to otherwise comply with

16 this order, the undersigned may recommend to the assigned district judge that

17 this action be dismissed for failure to state a claim and to obey a court order.

18

IT IS SO ORDERED.

19

Sheila K. Oberto

20 Dated: March 2, 2020 /s/ .

UNITED STATES MAGISTRATE JUDGE

21

22

23

24

25

26

27

28 2 As explained above, Plaintiff is free to file a second action under 42 U.S.C. § 1983 and a third action for a writ of