Green v. San Mateo County

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8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA

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FA’JON GREEN,

11 Case No. 22-cv-00768 BLF (PR)

Plaintiff,

12 ORDER OF DISMISSAL WITH

v. LEAVE TO AMEND; DENYING

13 JOINDER OF CO-PLAINTIFFS;

DENYING MOTION FOR

14 SAN MATEO COUNTY, et al., APPOINTMENT COUNSEL

15 Defendants.

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18 Plaintiff Mr. Fa’jon Green filed the instant pro se civil rights action pursuant to 42

19 U.S.C. § 1983 against San Mateo County, the San Mateo County Sheriff’s Department,

20 Sheriff Carlos G. Bolanos, and various officers. Dkt. No. 1 at 2. Plaintiff is currently

21 incarcerated at the Maguire Correctional Facility (“MCF”) in Redwood City. Id. at 1.

22 This matter was reassigned to the Undersigned on February 11, 2022. Dkt. Nos. 4, 5.

23 Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in a separate

24 order. Dkt. No. 2.

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26 DISCUSSION

27 A. Standard of Review

1 prisoner seeks redress from a governmental entity or officer or employee of a

2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any

3 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim

4 upon which relief may be granted or seek monetary relief from a defendant who is immune

5 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally

6 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

8 elements: (1) that a right secured by the Constitution or laws of the United States was

9 violated, and (2) that the alleged violation was committed by a person acting under the

10 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

11 B. Co-Plaintiffs

12 As an initial matter, the Court addresses Mr. Green’s attempt to join other prisoners

13 to this matter as co-plaintiffs. Dkt. No. 1 at 2. There is no indication that any of the

14 named co-plaintiffs have agreed to participate in this action as Mr. Green is the only party

15 to have signed the complaint. Id. at 6. But even if co-plaintiffs were willing to participate,

16 the Court will not allow them to join Mr. Green’s action. Mr. Green is not a licensed

17 attorney and cannot represent other individuals.

18 Furthermore, the use of co-plaintiffs presents a procedural problem unique to

19 prisoner litigation. The main problem with having unrepresented inmates proceeding as

20 co-plaintiffs is that inmates lack control over their ability to access each other to prepare

21 documents and prosecute a case together. Inmates are frequently moved, whether within

22 the institution or without. Therefore, plaintiffs may not have access to each other in the

23 future to prepare documents and discuss the case. Even inmates who initially are

24 physically close to each other often do not remain so for the months or years that it may

25 take to litigate a case. One plaintiff may be moved to a different facility or be released

26 from custody, either of which will make their joint prosecution of this case inordinately

1 result in extensive delays at each point in the litigation where they are required to file

2 anything with the court. In addition, as pro se plaintiffs, none of the plaintiffs has the

3 authority to represent the others. See Russell v. United States, 308 F.2d 78, 79 (9th Cir.

4 1962) (“a litigant appearing in propria persona has no authority to represent anyone other

5 than himself”).

6 Lastly, the complaint is not filed as a class action, and Mr. Green would not be

7 legally authorized to represent the other named plaintiffs or absent class members because

8 he is not a licensed attorney. See Simon v. Hartford Life Ins. Co., 546 F.3d 661, 665 (9th

9 Cir. 2008), citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975), with

10 approval.

11 Based on the foregoing, Mr. Green’s attempt to join co-plaintiffs in this matter is

12 DENIED. Mr. Green shall be referred to as “Plaintiff” for the rest of this order.

13 C. Plaintiff’s Claims

14 Plaintiff alleges that during the first two weeks of January 2022, the “sheriff

15 custody authorities” brought five inmates who were known to be Covid-positive into the

16 “Bay housing unit” of MCF, where there were inmates who had tested negative for the

17 virus. Dkt. No. 1 at 2-3. Plaintiff claims the prison authorities failed to take precautions

18 and follow health care order guidelines in not quarantining these five infected inmates

19 before housing them with non-infected inmates. Id. at 3. Plaintiff claims the infected

20 inmates have equal access to custody phones, tables, chairs, and electronic tablets as

21 others, without disinfecting them. Id.; id. at 5. Plaintiff claims he requested Defendants to

22 reopen another available housing unit but was refused. Id. at 4. Plaintiff claims these

23 failures by Defendants constitute an Eighth Amendment deliberate indifference to medical

24 needs claim. Id. Plaintiff also claims that his Fourteenth Amendment right to equal

25 protection was violated. Id. at 5. Plaintiff seeks a preliminary injunction, ordering

26 Defendants to “separate and quarantine all infected Covid-19 inmates,” and damages. Id.

1 The Constitution does not mandate comfortable prisons, but neither does it permit

2 inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a

3 prisoner receives in prison and the conditions under which he is confined are subject to

4 scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993).

5 The Eighth Amendment imposes duties on these officials, who must provide all prisoners

6 with the basic necessities of life such as food, clothing, shelter, sanitation, medical care

7 and personal safety. See Farmer, 511 U.S. at 832; DeShaney v. Winnebago County Dep't

8 of Social Servs., 489 U.S. 189, 199-200 (1989). A prison official violates the Eighth

9 Amendment when two requirements are met: (1) the deprivation alleged must be,

10 objectively, sufficiently serious, Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S.

11 294, 298 (1991)), and (2) the prison official possesses a sufficiently culpable state of mind,

12 id. (citing Wilson, 501 U.S. at 297).

13 A prison official is deliberately indifferent if he or she knows that a prisoner faces a

14 substantial risk of serious harm and disregards that risk by failing to take reasonable steps

15 to abate it. Farmer, 511 U.S. at 837. The prison official must not only “be aware of facts

16 from which the inference could be drawn that a substantial risk of serious harm exists,” but

17 “must also draw the inference.” Id. If a prison official should have been aware of the risk,

18 but did not actually know, the official has not violated the Eighth Amendment, no matter

19 how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002).

20 Plaintiff’s allegations are insufficient to state a claim. First of all, he claims

21 Defendants acted with deliberate indifference by failing to take precautions to protect

22 uninfected inmates from exposure to infected inmates, which implicates Plaintiff’s Eighth

23 Amendment right to health and safety. However, Plaintiff’s allegations regarding

24 exposure are generalized. He must explain with greater specificity how he personally has

25 been exposed to potential infection by unnecessary contact with the infected inmates.

26 Furthermore, Plaintiff fails to allege how each named Defendant is directly responsible for

1 statement of claim does he describe the individual actions of any of the named defendants

2 to establish that they were each personally involved in the alleged deprivation, or much

3 less that they each acted with deliberate indifference. Plaintiff shall be granted leave to file

4 an amended complaint to allege specific facts so that the Court can determine whether he

5 states a cognizable Eighth Amendment claim.

6 Plaintiff also asserts that his equal protection rights were violated. “The Equal

7 Protection Clause of the Fourteenth Amendment commands that no State shall deny to any

8 person within its jurisdiction the equal protection of the laws, which is essentially a

9 direction that all persons similarly situated should be treated alike.” City of Cleburne v.

10 Cleburne Living Center, 473 U.S. 432, 439 (1985). A plaintiff alleging denial of equal

11 protection based on race or other suspect classification must plead intentional unlawful

12 discrimination or allege facts that are at least susceptible of an inference of discriminatory

13 intent. Monteiro v. Tempe Union High School Dist., 158 F.3d 1022, 1026 (9th Cir. 1998).

14 To state a claim for relief, the plaintiff must allege that the defendant state actor acted at

15 least in part because of the plaintiff's membership in a protected class. Furnace v.

16 Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); Serrano v. Francis, 345 F.3d 1071, 1081-82

17 (9th Cir. 2003); see also Byrd v. Maricopa Cnty. Sheriff's Dep't, 629 F.3d 1135, 1140 (9th

18 Cir. 2011) (en banc) (claim that alleged harmful treatment but mentioned nothing about

19 disparate treatment was properly dismissed); Village of Willowbrook v. Olech, 528 U.S.

20 562, 564-65 (2000) (per curiam) (holding that “class of one” claim requires only that

21 action be irrational and arbitrary, rather than requiring discriminatory intent).

22 Plaintiff’s allegations are simply insufficient to state an equal protection claim

23 because he fails to identify the protected class of which he is a member and how

24 Defendants discriminated against him because of his membership in that class. He must at

25 least describe similarly situated prisoners who received different treatment than Plaintiff

26 such that Defendants’ actions towards him were irrational and arbitrary. Accordingly, this

1 factual allegations to support an equal protection claim against each Defendant whom he

2 believes is responsible for the discriminatory treatment.

3 Lastly, Plaintiff names San Mateo County and the San Mateo County Sheriff’s

4 Department as Defendants. Local governments are “persons” subject to liability under 42

5 U.S.C. § 1983 where official policy or custom causes a constitutional tort, see Monell v.

6 Dep't of Social Servs., 436 U.S. 658, 690 (1978); however, a city or county may not be

7 held vicariously liable for the unconstitutional acts of its employees under the theory of

8 respondeat superior, see Board of Cty. Comm'rs. of Bryan Cty. v. Brown, 520 U.S. 397,

9 403 (1997); Monell, 436 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th

10 Cir. 1995). To impose municipal liability under § 1983 for a violation of constitutional

11 rights resulting from governmental inaction or omission, a plaintiff must show: “(1) that he

12 possessed a constitutional right of which he or she was deprived; (2) that the municipality

13 had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's

14 constitutional rights; and (4) that the policy is the moving force behind the constitutional

15 violation.” Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)

16 (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989) (internal quotation marks

17 omitted). Plaintiff fails to allege sufficient facts to state a Monell claim against the County

18 or the Sheriff’s Department. He may attempt to do so in the amended complaint.

19 In preparing an amended complaint, Plaintiff must limit the allegations to his

20 specific and personal circumstances and not that of any other prisoner or prison conditions

21 in general. Plaintiff should also keep the following principles in mind. Liability may be

22 imposed on an individual defendant under § 1983 only if Plaintiff can show that the

23 defendant proximately caused the deprivation of a federally protected right. See Leer v.

24 Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121,

25 1125 (9th Cir. 1981). A person deprives another of a constitutional right within the

26 meaning of section 1983 if he does an affirmative act, participates in another’s affirmative

1 deprivation of which the plaintiff complains. See Leer, 844 F.2d at 633.

2 D. Motion for Appointment of Counsel

3 Plaintiff requests appointment counsel but fails to assert any grounds in support.

4 Dkt. No. 1 at 6. There is no constitutional right to counsel in a civil case unless an indigent

5 litigant may lose his physical liberty if he loses the litigation. See Lassiter v. Dep’t of

6 Social Services, 452 U.S. 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.

7 1997) (no constitutional right to counsel in § 1983 action), withdrawn in part on other

8 grounds on reh’g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). The decision to request

9 counsel to represent an indigent litigant under § 1915 is within “the sound discretion of the

10 trial court and is granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d

11 1221, 1236 (9th Cir. 1984). Plaintiff has set forth no grounds for warranting appointment

12 of counsel. Accordingly, Plaintiff’s motion is DENIED without prejudice for lack of

13 exceptional circumstances. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101,

14 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d

15 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

16 This denial is without prejudice to the Court’s sua sponte appointment of counsel at a

17 future date should the circumstances of this case warrant such appointment.

18 E. Request for Preliminary Injunction

19 As part of his relief, Plaintiff seeks a preliminary injunction. Dkt. No. 1 at 6.

20 Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a preliminary

21 injunction or temporary restraining order (“TRO”). Prior to granting a preliminary

22 injunction, notice to the adverse party is required. See Fed. R. Civ. P. 65(a)(1). Therefore,

23 a motion for preliminary injunction cannot be decided until the parties to the action are

24 served. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983). Accordingly, the request

25 for a preliminary injunction shall not be decided unless and until Defendants have been

26 served in this action and given an opportunity to be heard.

1 CONCLUSION

2 For the reasons state above, the Court orders as follows:

3 1. Plaintiff's attempt to join co-plaintiffs to this matter is DENIED. This action

4 || shall proceed only based on Mr. Green’s individual claims. Any co-plaintiffs appearing on

5 || the docket shall be terminated and their claims dismissed without prejudice to each filing

6 || his own lawsuit.

7 2. The complaint is DISMISSED with leave to amend. Within twenty-eight

8 || (28) days from the date this order is filed, Plaintiff shall file an amended complaint using

g || the court’s form complaint to correct the deficiencies described above. The amended

10 |} complaint must include the caption and civil case number used in this order, i.e., Case No.

11 || C 22-cv-00768 BLF (PR), and the words “AMENDED COMPLAINT” on the first page.

2 Plaintiff must answer all the questions on the form in order for the action to proceed.

E 13 || Plaintiff reminded that the amended complaint supersedes the original, and Plaintiff may

S 14 || not make references to the original complaint. Claims not included in the amended

3 15. || complaint are no longer claims and defendants not named in an amended complaint are no

16 || longer defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992).

5 17 3. Failure to respond in accordance with this order by filing an amended

5 18 complaint in the time provided will result in the dismissal of this action without

19 || prejudice and without further notice to Plaintiff.

20 IT ISSO ORDERED.

21 || Dated: June 17, 2022 Liye crm)

> BETH AB ON FREEMAN

United States District Judge

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