Mohammed Mousa v. LASD

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9 UNITED STATES DISTRICT COURT

10 CENTRAL DISTRICT OF CALIFORNIA

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12 MOHAMMED MOUSA, ) Case No. CV 19-7607-AB (JEM)

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13 Plaintiff, )

) MEMORANDUM AND ORDER

14 v. ) DISMISSING FIRST AMENDED

) COMPLAINT WITH LEAVE TO AMEND

15 LASD, et al., )

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16 Defendants. )

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18 PROCEEDINGS

19 On September 3, 2019, Mohammed Mousa (“Plaintiff”), a state prisoner proceeding

20 pro se, filed a letter that was construed as a civil rights complaint pursuant to 42 U.S.C. §

21 1983 (“Complaint”). On December 15, 2019, a First Amended Complaint (“FAC”) was filed.

22 For the reasons set forth below, the Court finds that the FAC should be dismissed

23 with leave to amend.

24 PLAINTIFF’S ALLEGATIONS

25 Plaintiff alleges that the Los Angeles County Sheriff’s Department (“LASD”) and

26 Deputies Morisseau and Kerr violated his civil rights while he was detained at the Los

27 Angeles County Jail. Plaintiff alleges the following:

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1 Both Defend[a]nts crueled [sic] & unusual punished me by not feeding me on April-

2 25-19 while Passover any breakfast or lunch at all while [I] was on the kosher diet.

3 Mr. Morisseau didn[’]t feed me on April-23-19 any dinner at all while it was Passover

4 and [I] was supposed to eat kosher.

(FAC at 5.) He claims “cruel & unusual punishment” and “p[h]ysical & emotional harm”

(FAC at 5) and asks for “compensation relief” (FAC at 6).

7 DISCUSSION

8} 1. PLEADING STANDARDS

9 A complaint may be dismissed as a matter of law for failure to state a claim for two

reasons: (1) the plaintiff fails to state a cognizable legal theory; or (2) the plaintiff has

alleged insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't,

901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim on

13] which relief may be granted, allegations of material fact are taken as true and construed in

14] the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir.

1988). However, “the liberal pleading standard . . . applies only to a plaintiff's factual

allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of

a civil rights complaint may not supply essential elements of the claim that were not initially

18] pled.” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

19 Although a complaint "does not need detailed factual allegations” to survive

20 || dismissal, a plaintiff must provide “more than mere labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007) (rejecting the traditional “no set of facts” standard set forth in

23 | Conley v. Gibson, 355 U.S. 41 (1957)). The complaint must contain factual allegations

24| sufficient to rise above the “speculative level,” Twombly, 550 U.S. at 555, or the merely

possible or conceivable. Id. at 557, 570.

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1 Simply put, the complaint must contain "enough facts to state a claim to relief that is

2| plausible on its face." Twombly, 550 U.S. at 570. A claim has facial plausibility wnen the

complaint presents enough facts “to draw the reasonable inference that the defendant is

liable.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard is not a probability

requirement, but “it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id. A complaint that pleads facts that are merely consistent with liability stops

short of the line between possibility and plausibility. Id.

8 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1)

9] that a right secured by the Constitution or laws of the United States was violated and (2)

10 that the violation was committed by a person acting under the color of state law. West v.

11] Atkins, 487 U.S. 42, 48 (1988). Liability may be imposed on an individual defendant under

12] § 1983 if the plaintiff can show that the defendant proximately caused the deprivation of a

13] federally protected right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person

14 || deprives another of a constitutional right within the meaning of § 1983 if he does an

affirmative act, participates in another's affirmative act or omits to perform an act which he

16 | is legally required to do, that causes the deprivation of which the plaintiff complains. Id. at

17 || 633. The inquiry into causation must be individualized and focus on the duties and

18] responsibilities of each individual defendant whose acts or omissions are alleged to have

19] caused a constitutional deprivation. Id. Sweeping conclusory allegations will not suffice; the

plaintiff must instead “set forth specific facts as to each individual defendant's” deprivation

21] of protected rights. Id. at 634.

22 In a pro se civil rights case, the complaint must be construed liberally to afford

plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dept, 839 F.2d 621,

623 (9th Cir. 1988). Unless it is clear that the deficiencies in a complaint cannot be cured,

pro se litigants are generally entitled to a notice of a complaint’s deficiencies and an

opportunity to amend prior to the dismissal of an action. Id. at 623. Only if it is absolutely

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1| clear that the deficiencies cannot be cured by amendment should the complaint be

2| dismissed without leave to amend. lId.; Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir.

2007).

4) THE COMPLAINT SHOULD BE DISMISSED WITH LEAVE TO AMEND FOR

5 FAILURE TO COMPLY WITH RULE 8

6 Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short

7| and plain statement of the claim showing that the pleader is entitled to relief,’ in order to

8] ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

Twombly, 550 U.S. at 555 (internal citation omitted). To comply with Rule 8, a plaintiff

should set forth “who is being sued, for what relief, and on what theory, with enough detail

to guide discovery.” McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). Conclusory

12] allegations are insufficient. See Iqbal, 556 U.S. at 678 (Rule 8 “demands more than an

13] unadorned, the-defendant-unlawfully-harmed-me accusation’; a pleading that “offers labels

and conclusions or a formulaic recitation of the elements of a cause of action will not do.”)

(internal quotation marks and citation omitted).

16 The FAC does not comply with the standards of Rule 8. Plaintiff fails to allege

sufficient facts to enable the Court or Defendants to ascertain the nature and basis of

18] Plaintiff's claims against them. Plaintiff's failure to plainly and succinctly provide defendants

19] with fair notice of the bases for his allegations violates Rule 8. See Cafasso v. Gen.

Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011); see also American Ass'n of

Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000) (“[A] pro se

litigant is not excused from knowing the most basic pleading requirements.”).

23 Thus, the FAC should be dismissed with leave to amend for failure to comply with

24] Rule 8. Because Plaintiff is proceeding pro se, the Court sets forth below some additional

25 | guidance, which Plaintiff should consider if he chooses to file an amended complaint.

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1| Ill. ©=PLAINTIFF MUST NAME ALL DEFENDANTS IN THE CAPTION

2 The caption of the FAC lists LASD as the sole defendant. (FAC at 1.) Deputies

3] Morisseau and Kerr, who are named as “defendants” only in the body of the FAC, have not

4|| been presented properly as parties, and the Court does not recognize them as defendants

5| in this action. If Plaintiff files an amended complaint, he must include in the caption the

names of each defendant against whom he is asserting a claim. See Fed. R. Civ. P.

7| 10(a); Local Rule 11-3.8(d); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1262-63 (9th Cir.

8 || 1992) (dismissing action for refusal to comply with court orders to name defendants in the

9] caption). Thus, Plaintiff must list all defendants in the caption on page 1 of the amended

10 | complaint. The Court will not order the United States Marshal to serve the amended

11 complaint on any named defendant not identified in the caption. He also must list all

defendants in the appropriate section of the amended complaint where Plaintiff is asked to

13] identify the defendants.

IV. PLAINTIFF HAS FAILED TO STATE A CLAIM AGAINST LASD OR DEPUTIES

15 MORISSEAU AND KERR IN THEIR OFFICIAL CAPACITIES

16 Plaintiff has named LASD as a Defendant. (FAC at 1.) He also indicates an

17 || intention to sue Deputies Morisseau and Kerr in their individual and official capacities.

18] (FAC at 3.)

19 The Supreme Court has held that an "official-capacity suit is, in all respects other

20| than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159,

166 (1985); see also Brandon v. Holt, 469 U.S. 464, 471-72 (1985); Larez v. City of Los

22|| Angeles, 946 F.2d 630, 646 (9th Cir. 1991). Such a suit "is not a suit against the official

personally, for the real party in interest is the entity." Graham, 473 U.S. at 159. Thus, the

claims against Deputies Morisseau and Kerr in their official capacities are tantamount to

claims against LASD.

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1 A local governmental entity, such as LASD, “may not be sued under § 1983 for an

injury inflicted solely by its employees or agents. Instead, it is when execution of a

government's policy or custom, whether made by its lawmakers or by those whose edicts or

4| acts may fairly be said to represent official policy, inflicts the injury that the government as

an entity is responsible under § 1983.” Monell v. Dept. of Social Services of City of New

York, 436 U.S. 658, 694 (1978). Thus, “[i]n order to hold [a local government defendant]

liable under § 1983, [Plaintiff] must show (1) that he possessed a constitutional right of

8 || which he was deprived; (2) that the [local government entity] had a policy; (3) that the policy

9] amounts to deliberate indifference to [Plaintiff's] constitutional right; and (4) that the policy is

the ‘moving force behind the constitutional violation.” Anderson v. Warner, 451 F.3d 1063,

11] 1070 (9th Cir. 2006) (citations and internal quotation marks omitted); Dougherty v. City of

12] Covina, 654 F.3d 892, 900 (9th Cir. 2011). “There also must be a ‘direct causal link’

between the policy or custom and the injury, and [Plaintiff] must be able to demonstrate that

14] the injury resulted from a ‘permanent and well settled practice.” Anderson, 451 F.3d at

15 || 1070 (citation omitted); Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 957 (9th Cir.

16 | 2008) (en banc). A plaintiff cannot prove the existence of a municipal policy or custom

based solely on the occurrence of a single incident of unconstitutional action by a non-

18] policymaking employee. City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985).

19 Here, Plaintiff has failed to identify any policy statements, regulations, officially

adopted or promulgated decisions, customs, or practices by which Deputies Morisseau or

21] Kerr or any other LASD official allegedly inflicted the injuries about which Plaintiff is

complaining. Plaintiff alleges no facts to support a claim against LASD or against Deputies

23 || Morisseau or Kerr in their official capacities.

24 Thus, any claims against LASD or Deputies Morisseau or Kerr in their official

capacities are subject to dismissal for failure to set forth facts to support a Monell claim. If

26 | Plaintiff chooses to file an amended complaint, he should not sue LASD or Deputies

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Morisseau or Kerr in their official capacities unless he can allege specific facts

demonstrating that LASD has a policy, regulation, custom, or practice by which the injuries

3] to Plaintiff were inflicted.

4\ Vv. PLAINTIFF HAS FAILED TO STATE A CLAIM FOR VIOLATION OF HIS CIVIL

5 RIGHTS

6 A. Applicable Law

7 1. Civil Rights Claims Under Section 1983

8 To state a civil rights claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1)

9] the defendants were acting under color of state law at the time the complained of acts were

10 | committed; and (2) the defendants’ conduct deprived plaintiff of rights, privileges, or

11 immunities secured by the Constitution or laws of the United States. Karim-Panahi, 839

F.2d at 624. There must be an affirmative link between the defendants’ actions and the

13] claimed deprivations. See Rizzo v. Goode, 423 U.S. 362, 372-73 (1976).

14 2. Free Exercise Clause Of The First Amendment

15 "Inmates clearly retain protections afforded by the First Amendment . . . including its

16 || directive that no law shall prohibit the free exercise of religion." O'Lone v. Estate of

Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). Nevertheless, "[I]Jawful incarceration

18] brings about the necessary withdrawal or limitation of many privileges and rights, a

19] retraction justified by the considerations underlying our penal system.” Id. at 348.

20 To implicate the Free Exercise Clause, an inmate must show that the belief at issue

21] is both "sincerely held" and "rooted in religious belief." Malik v. Brown, 16 F.3d 330, 333

(9th Cir. 1994); see also Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (noting

that the "sincerity test,” not the "centrality test," applies to a free exercise analysis). After

the inmate makes this initial showing, he must show that jail officials substantially burden

the practice of his religion by preventing him from engaging in conduct which he sincerely

believes is consistent with his faith. Hernandez v. C.I.R., 490 U.S. 680, 699 (1989); Shakur,

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1| 514 F.3d at 884-85. "A substantial burden .. . place[s] more than an inconvenience on

2| religious exercise; it must have a tendency to coerce individuals into acting contrary to their

3] religious beliefs or exert substantial pressure on an adherent to modify his behavior and to

4| violate his beliefs." Ohno v. Yasuma, 723 F.3d 984, 1011 (9th Cir. 2013) (quoting Guru

Nanak Sikh Soc'y of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 988 (9th Cir. 2006) (internal

quotation marks and alterations omitted)).

7 A regulation that substantially burdens a prisoner's right to freely exercise his religion

8 | will be upheld only if it is reasonably related to a legitimate penological interest. Shakur,

9] 514 F.3d at 884-85. In Turner v. Safley, the Supreme Court identified four factors that must

be balanced in determining whether a prison regulation is reasonably related to a legitimate

11 penological interest: (1) there must be a valid, rational connection between the regulation

12] and the legitimate governmental interest; (2) whether there are alternative means of

13] exercising the right that remain open to inmates; (3) the impact accommodation of the right

14] will have on guards and other inmates, and on the allocation of prison resources; and (4)

the absence of ready alternatives. Shakur, 514 F.3d at 884 (citing Turner v. Safley, 482

16] U.S. 78, 89-90 (1987)).

17 3. RLUIPA

18 The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) was

19] enacted “‘to provide very broad protection for religious liberty”; it "protects 'any exercise of

20] religion, whether or not compelled by, or central to, a system of religious belief[.]" Holt v.

21|| Hobbs, 574 U.S. 352, , 135 S. Ct. 853, 859, 860 (2015) (quoting Burwell v. Hobby

Lobby Stores, Inc., 573 U.S. 682, 692 (2014), and 42 U.S.C. § 2000cc-5(7)(A) ); see also

23 | Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (RLUIPA must be "construed

broadly in favor of protecting an inmate's right to exercise his religious beliefs"). Under

25 | RLUIPA, a prisoner must show that the relevant exercise of religion is grounded in a

26 | sincerely held religious belief and not some other motivation. Holt, 135 S. Ct. at 862. Next,

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the inmate bears the burden of establishing that a prison policy constitutes a substantial

burden on that exercise of religion. Id.; Warsoldier, 418 F.3d at 994 (citing 42 U.S.C. §

2000cc-2(b) ).

4 If the inmate makes those two showings, the burden shifts to the government to

prove that the substantial burden on the inmate's religious practice both furthers a

6 || compelling governmental interest and is the least restrictive means of doing so. Warsoldier,

418 F.3d at 995. This compelling governmental interest test imposes a much stricter

burden on the government than the First Amendment's alternative means test. See Holt,

9] 135 S. Ct. at 862; Greene v. Solano Cnty. Jail, 513 F.3d 982, 986 (9th Cir. 2008).

10 4. Conditions of Confinement Claim

11 The Eighth Amendment's prohibition against cruel and unusual punishment imposes

a duty on prison officials to "provide humane conditions of confinement." Farmer v.

13] Brennan, 511 U.S. 825, 832 (1994). Although it appears that Plaintiff may have been a

14] pretrial detainee, and not a prisoner, and his rights with respect to the conditions of his

15 || confinement come "under the Fourteenth Amendment" and not the Eighth Amendment, his

16 | rights "are comparable to prisoners’ rights under the Eighth . . . [as courts] apply the same

standards." Frost v. Agnos, 152 F.3d 1123, 1128 (9th Cir.1998). Like prisoners, pretrial

detainees are guaranteed to receive "adequate food, clothing, shelter, sanitation, and

medical care." Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). Minimal deviations

20 || from comfortable conditions that do not last for an extended time period are considered "de

21] minimis injuries" and do not "constitute a constitutional violations." See Bell v. Wolfish, 441

U.S. 520, 539 (1979). "The Constitution does not mandate comfortable prisons, but neither

23|| does it permit inhumane ones." Farmer, 511 U.S. at 832.

24 To properly plead "cruel and unusual” punishment, a prisoner or pretrial detainee

must allege facts which demonstrate that he was confined under conditions posing a risk of

"objectively, sufficiently serious" harm and that prison officials had a "sufficiently culpable

27| state of mind." Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995). Thus, there is both

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1 an objective and subjective component to the inquiry. Hallett v. Morgan, 296, F.3d 732, 744

2 (9th Cir. 2002). More specifically, in order to state a viable conditions of confinement claim,

3 a plaintiff first must plead facts sufficient to show that he was subjected to an objectively

4 serious deprivation of "the minimal civilized measure of life's necessities." Farmer, 511 U.S.

5 at 832. The "routine discomfort inherent in the prison setting" is inadequate to satisfy the

6 objective prong of the inquiry. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 1999).

7 Second, a plaintiff must demonstrate the prison official's subjective "culpable state of mind"

8 by showing the official acted with "deliberate indifference" to his health or safety. Farmer,

9 511 U.S. at 834. This requires the prisoner to allege facts demonstrating that the official

10 displayed a subjective indifference "to a substantial risk of serious harm." Frost, 152 F.3d

11 at 1128. "Deliberate indifference" is evidenced only when "the official knows of and

12 disregards an excessive risk to inmate health or safety; the official must both be aware of

13 facts from which the inference could be drawn that a substantial risk of serious harm exists,

14 and he must also draw the inference." Farmer, 511 U.S. at 837. If an official "should have

15 been aware of the risk, but was not, then the [official] has not [violated a party's

16 Constitutional rights], no matter how severe the risk." Gibson v. County of Washoe, 290

17 F.3d 1175, 1187 (9th Cir.2002).

18 B. Analysis

19 Plaintiff alleges that LASD and Deputies Morisseau and Kerr failed to provide him

20 with dinner on April 23, 2019, and breakfast or lunch on April 25, 2019, although he was

21 supposed to receive kosher meals during Passover. (FAC at 5.) It is unclear whether he is

22 claiming a violation of his civil rights based on the failure to provide kosher meals or if his

23 claims are based on the failure to provide him with any food at all on these three occasions.

24 It is unclear whether Plaintiff practices a religion that requires him to eat kosher meals. It is

25 unclear whether the denial of kosher meals (or any meals at all) was pursuant to a

26 particular policy. Plaintiff may amend his pleadings in order to allege sufficient facts to

27 establish a civil rights violation under the standards set forth above.

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1 * * * *

2 For the reasons set forth herein, the FAC is DISMISSED WITH LEAVE TO AMEND.

3 If Plaintiff desires to pursue this action, he is ORDERED to file a Second Amended

4 Complaint within thirty (30) days of the date of this Order, which remedies the deficiencies

5 discussed above.

6 If Plaintiff chooses to file a Second Amended Complaint, it should: (1) bear the

7 docket number assigned in this case; (2) be labeled “Second Amended Complaint"; (3) be

8 filled out exactly in accordance with the directions on the form; and (4) be complete in and

9 of itself without reference to the previous complaints or any other pleading, attachment or

10 document. The Clerk is directed to provide Plaintiff with a blank Central District of California

11 civil rights complaint form, which Plaintiff must fill out completely and resubmit.

12 Plaintiff is admonished that, if he fails to file a Second Amended Complaint by

13 the deadline set herein, the Court may recommend that this action be dismissed for

14 failure to prosecute and failure to comply with a Court order.

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DATED: December 19, 2019 /s/ John E. McDermott

17 JOHN E. MCDERMOTT

UNITED STATES MAGISTRATE JUDGE

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