# Shepard v. San Diego Sheriff Department

> District Court, S.D. California · June 1, 2020

URL: https://www.frixlaw.com/law-library/cases/10081250

## Case

- **Court:** District Court, S.D. California
- **Decided:** June 1, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10081250

## How later opinions describe it (automated extraction)

- affirming dismissal of claims arising from defendants’ processing 18 of grievances
- discussing 28 2 U.S.C. § 1915A(b)

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 RAZHAE SHEPARD, Case No.: 3:19-cv-01625-JAH-MDD
Booking No. #19728104,
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ORDER DISMISSING CIVIL
Plaintiff,
13 ACTION FOR FAILING TO STATE
vs. A CLAIM PURSUANT TO
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28 U.S.C. § 1915(e)(2)(B) AND

15 28 U.S.C. § 1915A(b)(1)
SAN DIEGO SHERIFF’s DEPT., et al.,
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Defendants. [ECF No. 4]
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20 Razhae Shepard (“Plaintiff”), while detained at the San Diego County Sheriff
21 Department’s George Bailey Detention Facility (“GBDF”), and proceeding pro se, has filed
22 this civil rights action pursuant to 42 U.S.C. § 1983.
23 I. Procedural Background
24 In his original Complaint, Shepard alleged that the San Diego Sheriff’s Department
25 (“SDSD”), unidentified members of its medical and food services staff, County Sheriff
26 William B. Gore, and a “contracted doctor” named Tran, deprived him adequate medical
27 care, failed to provide him an appropriate religious diet, and gave him the “run around” in
28 response to multiple grievances and internal affairs complaints he filed at both the San
1 Diego Central Jail (“SDCJ”), GBDF, and the Vista Detention Facility (“VDF”). See
2 Compl., ECF No. 1 at 1-5. He sought injunctive relief as well as $6.6 million in general
3 and punitive damages. Id. at 7.
4 On November 18, 2019, this Court granted Plaintiff leave to proceed IFP, screened
5 his Complaint, and dismissed it sua sponte for failing to state a claim pursuant to 28 U.S.C.
6 § 1915(e)(2)(B) and § 1915A(b). See ECF No. 3. Plaintiff was given 45 days leave in which
7 to file an amended complaint that addressed all his pleading deficiencies. Id. at 6-11; see
8 also Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (“[A] district court
9 should grant leave to amend even if no request to amend the pleading was made, unless it
10 determines that the pleading could not possibly be cured.”) (citations omitted)).
11 On December 6, 2019, Plaintiff filed an Amended Complaint (“FAC”) (ECF No. 4).
12 Plaintiff continues to refer broadly to the denial of his “medical needs,” his right to “free
13 enjoyment of religion without discrimination,” and to be free from “cruel and unusual
14 punishment,” but he offers even fewer factual details than he did in his original pleading,
15 and fails to connect any of the named Defendants to any particular act, omission, or incident
16 of constitutional wrongdoing. See FAC at 3‒5. Plaintiff also continues to allege, without
17 more, that SDSD officials as a group, and Sheriff William D. Gore in particular, “ignored”
18 more than a dozen of his inmate grievances. See FAC at 3.
19 II. Screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)
20 As Plaintiff knows, the Court is obligated by the Prison Litigation Reform Act
21 (“PLRA”) to review complaints filed by all persons proceeding IFP and by those, like
22 Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced for,
23 or adjudicated delinquent for, violations of criminal law or the terms or conditions of
24 parole, probation, pretrial release, or diversionary program,” at the time of filing “as soon
25 as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under the
26 PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are
27 frivolous, malicious, fail to state a claim, or which seek damages from defendants who are
28 immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez, 203 F.3d at 1126-27 (citing
1 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28
2 U.S.C. § 1915A(b)).
3 A. Standard of Review
4 “The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious suits
5 need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th
6 Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.
7 2012)). “The standard for determining whether a plaintiff has failed to state a claim upon
8 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
9 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
10 1108, 1112 (9th Cir. 2012); accord Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
11 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
12 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
13 12(b)(6)”).
14 Every complaint must contain “a short and plain statement of the claim showing that
15 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
16 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
17 conclusory statements, do not suffice.” Iqbal v. Ashcroft, 556 U.S. 662, 678 (2009) (citing
18 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there are well-pleaded
19 factual allegations, a court should assume their veracity, and then determine whether they
20 plausibly give rise to an entitlement to relief.” Id. at 679. “Determining whether a complaint
21 states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing
22 court to draw on its judicial experience and common sense.” Id. The “mere possibility of
23 misconduct” falls short of meeting this plausibility standard. Id.; see also Moss v. U.S.
24 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
25 While a plaintiff’s factual allegations are taken as true, courts “are not required to
26 indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th
27 Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an
28 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the
1 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler,
2 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1
3 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially
4 pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir.
5 1982). Even before Iqbal, “[v]ague and conclusory allegations of official participation in
6 civil rights violations” were not “sufficient to withstand a motion to dismiss.” Id.
7 B. 42 U.S.C. § 1983
8 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights,
9 privileges, or immunities secured by the Constitution and laws” of the United States. Wyatt
10 v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must allege
11 two essential elements: (1) that a right secured by the Constitution or laws of the United
12 States was violated, and (2) that the alleged violation was committed by a person acting
13 under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of Los Angeles,
14 442 F.3d 1178, 1185 (9th Cir. 2006).
15 C. Discussion
16 As noted above, Plaintiff’s FAC suffers from the same pleading deficiencies as his
17 original Complaint. While he cites his rights to “freedom of religion,” and the Eighth and
18 Fourteenth Amendments to the U.S. Constitution as the legal bases for his claims, see FAC
19 at 3‒6, these “naked assertions” which remain “devoid of further factual enhancement,” do
20 not “allow[] the court to draw the reasonable inference” that any of the Defendants he has
21 named as parties may be held liable under § 1983. Iqbal, 556 U.S. at 678 (citations
22 omitted). “While legal conclusions can provide the framework of a complaint, they must
23 be supported by factual allegations.” Id. at 679.
24 In its November 18, 2019 Order, the Court specifically advised Plaintiff that even
25 pro se litigants “must allege with at least some degree of particularity overt acts which
26 defendants engaged in” in order to state a plausible claim for relief. See ECF No. 3 at 8
27 (citing Iqbal, 556 U.S. at 676‒77; Jones v. Comm’ty Redev. Agency of City of Los Angeles,
28 733 F.2d 646, 649 (9th Cir. 1984)). “Liability under § 1983 arises only upon a showing of
1 personal participation by the defendant.” Victoria v. City of San Diego, 326 F. Supp. 3d
2 1003, 1013 (S.D. Cal. 2018). Except with respect to Sheriff Gore, whom Plaintiff claims
3 “ignored” his many inmate grievances, and enforced unidentified “policies adopted by
4 [the] County of San Diego,” see FAC at 5, Plaintiff still fails to even minimally describe
5 when, how, or what each individual Defendant either did, or failed to do, with respect to
6 providing him medical care or ensuring his right to freely exercise any sincerely held
7 religious belief. To state a claim under § 1983, Plaintiff must link each Defendant’s
8 personal acts or omissions to each claim for relief, and include “sufficient factual matter
9 … to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation
10 omitted); Lemire v. Cal. Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir.
11 2013). He still has not.
12 With respect to Sheriff Gore, Plaintiff claims broadly that he adopted unidentified
13 policies on behalf of the County, refused to provide “emergency medical help” on an
14 unspecified occasion, and denied him the right to petition for redress via inmate grievance
15 procedures. See FAC at 3, 5. First, to the extent Plaintiff again seeks to pursue any claim
16 of municipal liability against the County itself, his FAC still fails to allege that any
17 individual municipal employee violated his constitutional rights “pursuant to a formal
18 governmental policy or a ‘longstanding practice or custom which constitutes the “standard
19 operating procedure” of the local governmental entity.’” Gillette v. Delmore, 979 F.2d
20 1342, 1346 (9th Cir. 1992). A § 1983 claim against a municipal entity requires an allegation
21 that “a deliberate policy, custom, or practice ... was the ‘moving force’ behind the
22 constitutional violation ... suffered.” Galen v. Cty. of Los Angeles, 477 F.3d 652, 667 (9th
23 Cir. 2007); City of Canton, Ohio, v. Harris, 489 U.S. 378, 385 (1989). Plaintiff still fails
24 to identify what policy, custom, or practice was at play‒‒and isolated or random acts of
25 wrongdoing are insufficient to sustain a municipal liability claim. See Thompson v. City of
26 Los Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989), overruled on other grounds by Bull v.
27 City and Cnty. of San Francisco, 595 F.3d 964 (9th Cir. 2010); see also Flesher v. Los
28 Angeles Cnty. Jail Med. Staff, No. CV 20-3937-AB (KK), 2020 WL 2523241, at *4 (C.D.
1 Cal. May 18, 2020) (finding claims that detainee’s “civil rights were violated on two
2 separate occasions” insufficient to plausibly allege a municipal custom or practice).
3 Second, to the extent Plaintiff seeks to hold Sheriff Gore personally liable for
4 ignoring his many inmate grievances, internal affairs, and Citizen’s Law Enforcement
5 Review Board complaints, see FAC at 5‒6, he also fails to state a claim upon which relief
6 may be granted. The existence of an internal jail or prison grievance procedure does not
7 create any substantive rights enforceable under the Due Process Clause. See, e.g., Ramirez
8 v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“[I]nmates lack a separate constitutional
9 entitlement to a specific prison grievance procedure.”); Antonelli v. Sheahan, 81 F.3d 1422,
10 1430 (7th Cir. 1996) (“With respect to the Due Process Clause, any right to a grievance
11 procedure is a procedural right, not substantive one. Accordingly, a state’s inmate
12 grievance procedures do not give rise to a liberty interest protected by the Due Process
13 Clause.”) (internal citations omitted); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988)
14 (“There is no legitimate claim of entitlement to a grievance procedure.”). Thus, Plaintiff
15 cannot assert due process claims against Sheriff Gore based solely on the handling or
16 alleged mishandling of his inmate grievances. See McRoy v. Roe, 509 Fed. Appx. 660, 660
17 (9th Cir. Feb.19, 2013) (affirming dismissal of claims arising from defendants’ processing
18 of grievances) (citing Ramirez).
19 Finally, the Court’s November 18, 2019 Order specifically advised Plaintiff that
20 should he elect to amend and identify the individual SDSD deputies or medical personnel
21 who personally denied him adequate medical attention or failed to sufficiently
22 accommodate his sincerely held religious beliefs, he must also include facts to show how
23 each of those individual persons violated his First and Fourteenth Amendment rights. See
24 ECF No. 3 at 9‒10. Because he does not specify, but appears to have been a pretrial
25 detainee at the time he alleges to have been denied appropriate medical care and/or
26 religious accommodations at either the SDCJ, GBDF, or VDF, the Court identified both
27 the First and Fourteenth Amendments as the appropriate constitutional bases for those
28 claims, and specifically set out the pleading requirements for both. See id. at 10 n.3
1 (“[I]nadequate medical care claims alleged by persons in pretrial custody ‘must be
2 evaluated under an objective deliberate indifference standard.’”) (citing Gordon v. Cnty. of
3 Orange, 888 F.3d 1118, 1124‒25 (9th Cir. 2018)); id. at 10 (“To state a claim under the
4 First Amendment’s Free Exercise Clause, Shepard must allege facts to plausibly show the
5 defendant’s actions: (a) ‘substantially burden[ed]’ the exercise of a sincerely-held religious
6 belief, and (b) did so in an unreasonable manner—i.e., the official’s actions were not
7 ‘rationally related to legitimate penological interests.’”) (citing O’Lone v. Estate of
8 Shabazz, 482 U.S. 342, 348-50 (1997); Jones v. Williams, 791 F.3d 1023, 1031, 1033 (9th
9 Cir. 2015) (citation omitted); Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008)
10 (citations omitted)).
11 Plaintiff’s FAC continues to invoke legally significant phrases like “cruel and
12 unusual punishment,” “deliberate indifference,” “discrimination,” and “equal protection,”
13 see FAC at 3‒5, but these types of “conclusory statements are not enough. See Iqbal, 556
14 U.S. at 678. “While legal conclusions can provide the framework of a complaint, they must
15 be supported by factual allegations.” Id. at 679. As pleaded, Plaintiff’s FAC continues to
16 provide “nothing more than conclusions.” Id. With respect to his need for medical care, he
17 does not plead any factual content sufficient to plausibly show any individual SDSD
18 official “made an intentional decision with respect to conditions under which [he] was
19 confined,” contend those conditions placed him “at substantial risk of suffering serious
20 harm,” allege that anyone failed to abate that risk, or claim that any individual SDSD
21 official’s conduct caused his injuries. Gordon, 888 F.3d at 1125. Nor does Plaintiff allege
22 to hold any sincerely held religious belief or identify a “substantial burden” placed on the
23 exercise of that belief by any named Defendant.1 See Shakur, 514 F.3d at 884-85; Malik v.
24 Brown, 16 F.3d 330, 333 (9th Cir. 1994).
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27 1 In his original Complaint, Plaintiff alleged he was provided incomplete, cold, and
“expired” kosher meals. See Compl., ECF No. 1 at 4. His FAC is even less specific, and
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1 Therefore, the Court finds Plaintiff’s FAC continues to fail to state a claim upon
2 which § 1983 relief can be granted and must be dismissed sua sponte pursuant to 28 U.S.C.
3 § 1915(e)(2)(B) and § 1915A(b). Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.
4 D. Supplemental State Law Claims
5 Plaintiff also cites Art. I §§ 1, 3(a), 7(a), and 17 of the California Constitution, as
6 well as various provisions of Title 15 of the California Code of Regulations as having been
7 violated. See FAC at 3‒5.
8 To the extent Plaintiff intends to raise independent state law claims for relief, the
9 Court finds they are subject to dismissal without prejudice pursuant to 28 U.S.C. § 1367(a).
10 “In any civil action of which the district courts have original jurisdiction, the district courts
11 shall have supplemental jurisdiction over all other claims that are so related to claims in
12 the action within such original jurisdiction that they form part of the same case or
13 controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
14 However, “once judicial power exists under § 1367(a), retention of supplemental
15 jurisdiction over state law claims under 1367(c) is discretionary.” Acri v. Varian Assoc.,
16 Inc., 114 F.3d 999, 1000 (9th Cir. 1997). “The district courts may decline to exercise
17 supplemental jurisdiction over a claim under subsection (a) if— (3) the district court has
18 dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
19 Moreover, the Supreme Court has cautioned that “if the federal claims are dismissed before
20 trial, ... the state claims should be dismissed as well.” United Mine Workers of America v.
21 Gibbs, 383 U.S. 715, 726 (1966). Thus, because the Court has found Plaintiff’s FAC fails
22 to state any plausible claim for relief pursuant to 42 U.S.C. § 1983, it hereby exercises its
23 discretion to dismiss all Plaintiff’s supplemental state law claims without prejudice
24 pursuant to 28 U.S.C. § 1367(c)(3). Id.
25 E. Leave to Amend
26 On November 18, 2019, the Court explained Plaintiff’s various deficiencies, and
27 because it was not absolutely clear he could not cure them by amendment, gave him
28 specific direction in order that he might “use[] the opportunity to amend effectively.” Aktar
1 || v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258,
2 || 1261 (9th Cir. 1992)). Instead, Plaintiff’s FAC offers even fewer factual allegations than
3 ||his original Complaint, and it fails to even minimally address any of the pleading
4 || deficiencies the Court identified for him. Therefore, the Court finds further amendment
5 || would likewise prove futile. See Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116
6 || (9th Cir. 2014) (‘Futility of amendment can, by itself, justify the denial of ... leave to
7 ||amend.’’’) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)); Zucco Partners,
8 || LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the plaintiff has
9 || previously been granted leave to amend and has subsequently failed to add the requisite
10 |/particularity to its claims, [t]he district court’s discretion to deny leave to amend is
11 || particularly broad.” Gnternal quotation marks omitted) (second alteration in original)).
12 Conclusion and Order
13 Accordingly, the Court DISMISSES this civil action sua sponte without further
14 leave to amend for failure to state a claim upon which § 1983 relief can be pursuant to 28
15 || U.S.C. § 1915(e)(2)(B) and § 1915A(b), CERTIFIES that an IFP appeal would not be
16 || taken in good faith pursuant to 28 U.S.C. § 1915(a)(3), and DIRECTS the Clerk of Court
17 || to enter a final judgment of dismissal and to close the file.
18 IT IS SO ORDERED.
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20 || Dated: June 1, 2020
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22 Hn. John A. Houston
53 Jnited States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10081250. Public record. Not legal advice.