Rodriguez Herlindo Junior v. Pelayes

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 5:20-cv-00224-GW (SK) Date March 24, 2020

Title Rodriguez Herlindo Junior v. Pelayes et al.

Present: The Honorable Steve Kim, U.S. Magistrate Judge

Connie Chung n/a

Deputy Clerk Court Smart / Recorder

Attorneys Present for Plaintiff: Attorneys Present for Defendants:

None present None present

Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE

Plaintiff is a California state prisoner seeking to proceed in forma pauperis with a

complaint under 42 U.S.C. § 1983 against three San Bernardino County sheriffs who work at

the West Valley Detention Center. (ECF 1 at 3, 5). He sues two of them in both their official

and personal capacities, and one in his personal capacity only. (Jd. at 3). He claims that they

all violated the Eighth Amendment because it took them three days to replace a worn-out

mattress, during which time he had to sleep on the metal bedframe. (/d. at 5-6). Plaintiffs in

forma pauperis application, however, is deficient for two reasons.

First, Plaintiff failed to include a certified copy of his trust account statement for the last

six months. (ECF 9). Without that certified statement, Plaintiff cannot proceed with his

complaint unless he first pays the full amount of the filing fee. See 28 U.S.C. § 1915(a)(2); L.R.

5-2. Second, while leave to amend might cure that procedural defect, amendment would be

futile for another reason: Plaintiff is suing Defendants who are immune to suit for monetary

relief under the alleged facts. See 28 U.S.C. § 1915A(b)(2).

To start, Sergeants Guerra and Pelayes may not be sued in their official capacities on the

facts alleged. An official-capacity suit against employees of a municipality “is equivalent to a

suit against the governmental entity itself.” Gomez v. Vernon, 255 F.3d 1118, 1126-27 (9th

Cir. 2001). So to bring official-capacity claims against those two Defendants, Plaintiff must

allege facts showing that they violated a federal law pursuant to a San Bernardino County

policy, practice, or custom. See Monell v. Dep't of Soc. Serus., 436 U.S. 658, 690 (1978). But

he has alleged only an “isolated” or “sporadic” incident, which is not enough to impose

municipal liability under Monell. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).

Moreover, all three Defendants are entitled to qualified immunity in their personal

capacities. Qualified immunity applies when government officials’ conduct does not violate

“clearly established” constitutional rights. Pearson v. Callahan, 555 U.S. 223, 231 (2009). No

federal case has “clearly established” that Plaintiff has an Eighth Amendment right to no delay

in the replacement of a worn-out mattress. See, e.g., Jones v. Neven, 678 Fed. App’x 490, 493

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 5:20-cv-00224-GW (SK) Date March 24, 2020

Title Rodriguez Herlindo Junior v. Pelayes et al.

(9th Cir. 2017) (defendants entitled to qualified immunity on Eighth Amendment claim where

prisoner lacked mattress and bed and slept on cell floor for four days) (quoting Chappell v.

Mandeville, 706 F.3d 1052, 1060 (9th Cir. 2013)); Finley v. Neven, 388 Fed. App’x 694, 695

(9th Cir. 2010) (“[D Jefendants were entitled to qualified immunity because prisoners do not

have a clearly established right to sleep on a comfortable mattress.”).

For these reasons, Plaintiff is ORDERED TO SHOW CAUSE in writing on or before

April 23, 2020 why his in forma pauperis application should not be denied and his complaint

accordingly dismissed based on the deficiencies outlined above. If Plaintiff wishes to proceed

with this action, he must first file a complete form CV-60P (attached here) that includes a

certified copy of his trust account statement for the last six months. Even then, Plaintiff must

prove why Defendants are not immune from suit for the reasons above. Alternatively, Plaintiff

may file a notice of voluntary dismissal using the attached form CV-09 if he cannot cure the

deficiencies outlined in this order. Voluntary dismissals do not count as “strikes” against the

maximum number of lawsuits that prisoners may file without prepaying full filing fees. See 28

U.S.C. § 1915(g).

Failure to file a voluntary dismissal or a timely response to this order may

result in involuntary dismissal of this action for failure to prosecute. See Fed. R.

Civ. P. 41(b); L.R. 41-1.

IT IS SO ORDERED.