Turner v. County of San Diego

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 DAVID BRYAN TURNER, Jr., Case No.: 3:19-cv-1982 GPC (RBM)

Booking No. 197347785,

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ORDER DISMISSING FIRST

Plaintiff,

13 AMENDED COMPLAINT

vs. PURSUANT TO 28 U.S.C. § 1915(e)(2)

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AND § 1915A(b)(1)

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COUNTY OF SAN DIEGO; SAN

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DIEGO HARBOR POLICE, Police

17 Officer John Doe; SAN DIEGO SHERIFF

DEPT., John Doe; METROPOLITAN

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TRANSIT SYSTEMS, Trolley Police

19 Officer Jane Doe; STATE OF

CALIFORNIA; CITY OF SAN DIEGO;

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WILLIAM D. GORE; CAPTAIN

21 BUCHANAN,

22 Defendants.

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24 I. Procedural History

25 On October 11, 2019, David Bryan Turner, Jr., (“Plaintiff”), incarcerated at the

26 George Bailey Detention Facility (“GBDF”) located in San Diego, California, filed a civil

27 rights action (“Compl.”) pursuant to 42 U.S.C. § 1983. In addition, Plaintiff filed a

28 Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No.

1 2). The Court granted Plaintiff’s Motion to Proceed IFP but simultaneously dismissed

2 his Complaint for failing to state a claim and as frivolous for raising claims duplicative of

3 an action he had already filed. (ECF No. 3.) Plaintiff was granted leave to file an

4 amended complaint to correct the deficiencies of pleading identified in the Court’s Order.

5 (Id. at 10-11.)

6 Plaintiff filed a First Amended Complaint (“FAC”) on November 14, 2019. (ECF

7 No. 4). However, the claims raised in the FAC are vague and do not appear to relate to

8 the claims that he raised in his original Complaint. Moreover, Plaintiff no longer names

9 San Diego Harbor Police, San Diego Sheriff Department, or the Metropolitan Transit

10 System as Defendants. He does, however, add the State of California, City of San Diego,

11 William D. Gore, and Captain Buchanan as Defendants.

12 II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A

13 A. Standard of Review

14 As the Court previously informed Plaintiff, because he is a prisoner and is

15 proceeding IFP, his FAC requires a pre-answer screening pursuant to 28 U.S.C.

16 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a

17 prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a

18 claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d

19 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v.

20 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The

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23 1 The Court took judicial notice that Plaintiff has been previously barred from proceeding IFP pursuant

to 28 U.S.C. § 1915(g). See Turner v. United State of America, et al., S.D. Cal. Civil Case No. 3:19-cv-

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01305-JAH-MDD (Aug. 27, 2019) (Order denying motion to proceed IFP on the ground that Plaintiff

25 has filed at least five (5) civil actions that were dismissed on the grounds that they were frivolous,

malicious, or failed to state a claim upon which relief may be granted.”) (hereafter Turner I). In fact,

26 Plaintiff has filed twenty-six (26) civil rights actions in this Court since 2009. However, because

Plaintiff made vague allegations that he was currently in “imminent danger” at the time he initially filed

27 this action, an exception to the § 1915(g) bar, the Court permitted Plaintiff to proceed IFP in this matter.

See PACER, https://pcl.uscourts.gov/pcl/pages/welcome.jsf (website last visited December 23, 2019.)

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1 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need

2 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir.

3 2014) (citations omitted).

4 “The standard for determining whether a plaintiff has failed to state a claim upon

5 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

6 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

7 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

8 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

9 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

10 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

11 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

12 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

13 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

14 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

15 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

16 relief [is] ... a context-specific task that requires the reviewing court to draw on its

17 judicial experience and common sense.” Id. The “mere possibility of misconduct” or

18 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

19 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

20 (9th Cir. 2009).

21 B. Rule 8

22 “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short

23 and plain statement of the claim,” FED. R. CIV. P. 8(a)(2), and that “each allegation must

24 be simple, concise, and direct.” FED. R. CIV. P. 8(d)(1). See Iqbal, 556 U.S. at 677-78. In

25 addition to the grounds for sua sponte dismissal set out in § 1915(e)(2)(B), the district

26 court may also dismiss a complaint for failure to comply with Rule 8 if it fails to provide

27 the defendant fair notice of the wrongs allegedly committed. See McHenry v. Renne, 84

28 F.3d 1172, 1178–80 (9th Cir. 1996) (upholding Rule 8(a) dismissal of complaint that was

1 “argumentative, prolix, replete with redundancy, and largely irrelevant”); Cafasso,

2 United States ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th

3 Cir. 2011) (citing cases upholding Rule 8 dismissals where pleadings were “verbose,”

4 “confusing,” “distracting, ambiguous, and unintelligible,” “highly repetitious,” and

5 comprised of “incomprehensible rambling,” while noting that “[o]ur district courts are

6 busy enough without having to penetrate a tome approaching the magnitude of War and

7 Peace to discern a plaintiff’s claims and allegations.”).

8 Here, Plaintiff’s FAC contains virtually no specific factual allegations. Moreover,

9 his FAC is disjointed and difficult to discern what claims he is attempting to make. While

10 “legal conclusions” like “cruel and unusual punishment” “can provide the framework of a

11 complaint, they must be supported by factual allegations,” lest the Plaintiff face

12 dismissal. Iqbal, 556 U.S. at 678.

13 The Court finds Plaintiff’s FAC violates Rule 8 of the FRCP by failing to provide

14 Defendants fair notice of the wrongs allegedly committed. Accordingly, the Court

15 DISMISSES the entire Complaint on Rule 8 grounds.

16 C. 42 U.S.C. § 1983

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

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

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

20 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,

21 1035-36 (9th Cir. 2015).

22 D. State of California

23 The State of California is not a “person” within the meaning of § 1983 and is

24 immune from suit under the Eleventh Amendment. See Will v. Michigan Dep’t of State

25 Police, 491 U.S. 58, 66 (1989); Pennhurst State School & Hosp. v. Halderman, 465 U.S.

26 89, 99-100 (1984) (Eleventh Amendment bars federal jurisdiction over suits by

27 individuals against a State and its instrumentalities, unless either the State consents to

28 waive its sovereign immunity or Congress abrogates it); see also Jackson v. Arizona, 885

1 F.2d 639, 641 (9th Cir. 1989) (dismissing prisoner’s § 1983 suit against the State of

2 Arizona as legally frivolous), superseded by statute on other grounds as stated in Lopez,

3 203 F.3d at 1130; Brand v. Schubert, No. 2:16-CV-1811 MCE EFB P, 2017 WL 531721,

4 at *2 (E.D. Cal. Feb. 7, 2017) (sua sponte dismissing § 1983 claims against the State of

5 California on sovereign immunity grounds pursuant to 28 U.S.C. § 1915A).

6 E. Monell Liability

7 Both the City of San Diego and the County of San Diego, as local government

8 units, may be considered a “person” and therefore, a proper defendant under § 1983. See

9 Monell v. Department of Social Services, 436 U.S. 658, 691 (1978); Hammond v. County

10 of Madera, 859 F.2d 797, 801 (9th Cir. 1988). However, the local government units may

11 be held liable under § 1983 only where the Plaintiff alleges facts to show that a

12 constitutional deprivation was caused by the implementation or execution of “a policy

13 statement, ordinance, regulation, or decision officially adopted and promulgated” by the

14 County, or a “final decision maker” for the County. Monell, 436 U.S. at 690; Board of the

15 County Commissioners v. Brown, 520 U.S. 397, 402-04 (1997); Navarro v. Block, 72

16 F.3d 712, 714 (9th Cir. 1995). In other words, “respondeat superior and vicarious liability

17 are not cognizable theories of recovery against a municipality.” Miranda v. Clark County,

18 Nevada, 279 F.3d 1102, 1109-10 (9th Cir. 2002). “Instead, a Monell claim exists only

19 where the alleged constitutional deprivation was inflicted in ‘execution of a government’s

20 policy or custom.’” Id. (quoting Monell, 436 U.S. at 694).

21 As currently pleaded, Plaintiff’s Complaint fails to state a claim against either the

22 City of San Diego or the County of San Diego because he has failed to allege any facts

23 which “might plausibly suggest” that the County or City violated his constitutional rights.

24 See Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (applying Iqbal’s

25 pleading standards to Monell claims); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

26 1978) (42 U.S.C. § 1983 provides for relief only against those who, through their

27 personal involvement as evidenced by affirmative acts, participation in another’s

28 affirmative acts, or failure to perform legally required duties, cause the deprivation of

1 plaintiff’s constitutionally protected rights).

2 And while Sheriff Gore and Captain Buchanan are also “persons,” his FAC fails to

3 allege how, or to what extent, these purported parties “participated in or directed the

4 violations, or knew of the violations and failed to act to prevent them.” Lemire, 726 F.3d

5 at 1074-75; Iqbal, 556 U.S. at 676-77; Jones v. Comm’ty Redev. Agency of City of Los

6 Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at

7 least some degree of particularity overt acts which defendants engaged in” to state a

8 claim). As pleaded, it appears Plaintiff seeks to hold Sheriff Gore and Captain Buchanan

9 liable for the acts of unidentified subordinates. But “vicarious liability is inapplicable to

10 … § 1983 suits.” Iqbal, 556 U.S. at 676. Instead, “Plaintiff must plead that each

11 Government-official defendant, through [his] own individual actions, has violated the

12 Constitution” to plead a plausible claim for relief. Id.; see also Crowley v. Bannister, 734

13 F.3d 967, 977 (9th Cir. 2013) (supervisor may be held liable under §1983 only if there is

14 “a sufficient causal connection between the supervisor’s wrongful conduct and the

15 constitutional violation”) (citations and internal quotation marks omitted); Fayle v.

16 Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (when a named defendant holds a

17 supervisorial position, the causal link between the defendant and the claimed

18 constitutional violation must be specifically alleged); Victoria v. City of San Diego, 326

19 F. Supp. 3d 1003, 1013 (S.D. Cal. 2018) (“Liability under § 1983 arises only upon a

20 showing of personal participation by the defendant.”).

21 III. Leave to Amend

22 Plaintiff has already been provided a short and plain statement of his pleading

23 deficiencies, as well as an opportunity to amend sufficient facts to support his claims to no

24 avail. Therefore, the Court finds further attempts to amend would be futile. See Gonzalez

25 v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment

26 can, by itself, justify the denial of ... leave to amend.’”) (quoting Bonin v. Calderon, 59

27 F.3d 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981,

28 1007 (9th Cir. 2009) (“[W]here the plaintiff has previously been granted leave to amend

1 has subsequently failed to add the requisite particularity to its claims, [t]he district

2 ||court’s discretion to deny leave to amend is particularly broad.” (internal quotation marks

3 || omitted) (second alteration in original)).

4 ||IV. Conclusion and Order

5 Accordingly, the Court:

6 1) DISMISSES this civil action sua sponte without further leave to amend for

7 || failure to comply with FRCP 8 and for failing to state a claim upon which § 1983 relief can

8 || be pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b);

9 2) | CERTIFIES that an IFP appeal would not be taken in good faith pursuant to

10 U.S.C. § 1915(a)3), and

11 3) DIRECTS the Clerk of Court to enter a final judgment of dismissal and to

12 close the file.

13 IT IS SO ORDERED.

14 Dated: January 3, 2020

I5 Hon. athe Coke

16 United States District Judge

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