Antquan Durpree Clay v. San Bernardino County

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

EASTERN DIVISION

ANTQUAN DURPREE CLAY, No. ED CV 19-00032-AG(DFM)

Plaintiff, ORDER DISMISSING COMPLAINT

WITH LEAVE TO AMEND

v.

SAN BERNARDINO COUNTY et

al.,

Defendants.

BACKGROUND

In 2016, Antquan Durpree Clay (“Plaintiff”) filed a civil rights action in

this Court pursuant to 42 U.S.C. § 1983. See Complaint, Clay v. San

Bernardino Cty., No. 16-01147 (C.D. Cal. June 2, 2016), Dkt. 1. After the

Court issued multiple orders dismissing Plaintiff’s claims with leave to amend,

Plaintiff filed a Third Amended Complaint (TAC). See TAC, id. (C.D. Cal.

June 5, 2017), Dkt. 20. In the TAC, Plaintiff named as defendants San

Bernardino County (“County”), John McMahon, Jane Doe, and E. Patino.

See id. at 3-4. Plaintiff alleged that these defendants violated his rights during

incidents that occurred on August 10, 2015, while he was a pretrial detainee at

West Valley Detention Center (WVDC). See id. at 5-17.

The Court dismissed Plaintiff’s California Penal Code Section 245(A)(1)

claim with prejudice, dismissed Plaintiff’s remaining state-law claims without

prejudice, dismissed Plaintiff’s federal constitutional claims against McMahon,

Doe, and the County with prejudice, and ordered service of the TAC on

Patino based on Plaintiff’s excessive force claim. See Report and

Recommendation, Clay v. San Bernardino Cty., No. 16-01147 (C.D. Cal. Aug.

9, 2017), Dkt. 22 (“R&R”); Order Accepting Report and Recommendation, id.

(C.D. Cal. Apr. 29, 2018), Dkt. 26 (“Order Accepting R&R”). Subsequently,

the Court dismissed the action without prejudice due to Plaintiff’s failure to

prosecute his case. See Report and Recommendation, id. (C.D. Cal. Aug. 17,

2018), Dkt. 34; Order Accepting Report and Recommendation, id. (C.D. Cal.

Sept. 28, 2018), Dkt. 36.

On January 7, 2019, Plaintiff filed a civil rights complaint in the instant

case. See Clay v. San Bernardino Cty., Case No. 19-00032, Dkt. 1

(“Complaint”). Because the Complaint was not accompanied by the necessary

filing fee, and because Plaintiff’s request to proceed without prepayment of

filing fees was incomplete, the Court ordered Plaintiff to submit a completed

request to proceed without prepayment of filing fees. See Dkt. 5. Subsequently,

Plaintiff filed a request to proceed without prepayment of filing fees, see Dkt.

7, which the Court granted, see Dkt. 8, and the operative First Amended

Complaint (FAC), see Dkts. 6, 6-1.

In the FAC, Plaintiff names four defendants: (1) the County; (2) Facility

Sergeant C. Castillo; (3) Custodial Personnel E. Patino; and (4) Supervisory

Custody Specialist Jane Doe. See Dkt. 6 at 3, 18. Plaintiff names Patino in his

individual and official capacity, and names the remaining defendants in their

individual capacity only.1 See id. Like the TAC in Plaintiff’s 2016 civil rights

case, the FAC alleges that Plaintiff’s civil rights were violated during incidents

1 Plaintiff names the County in its individual capacity. A county does not

have an “individual capacity,” only an official one.

that occurred at WVDC on August 10, 2015. See id. at 3-20; Dkt. 6-1 at 1-5.

Moreover, the FAC names three of the same defendants as the TAC, using

several of the same causes of action. See Dkt. 6 at 3-9, 15-20; Dkt. 6-1 at 1-5.

In accordance with 28 U.S.C. § 1915(e)(2), the Court must screen the

FAC to determine whether the action is frivolous or malicious; fails to state a

claim on which relief might be granted; or seeks monetary relief against a

defendant who is immune from such relief.

Il. SUMMARY OF PLAINTIFF’S ALLEGATIONS

Plaintiff's claims arise out of his pretrial detention at WVDC. See Dkt. 6

at 2-3. On August 10, 2015, Patino ordered Doe to open the cell door to unit

6/B/6. See id. at 16. Inmate Wall, whose hands were wrapped in ripped pieces

of linen, was within both Patino’s and Doe’s sightline at the time. See id. at 16-

17. No custodial personnel were present inside the module. See id. at 7. When

Doe opened the door, Wall “entered the restricted area” and struck Plaintiff in

the face with concealed knuckles, causing Plaintiff's face to swell and “busting

his lip.” Id. at 17; Dkt. 6-1 at 1. Meanwhile, inmate Brown entered the area

and used a shank to strike Plaintiff from behind, causing “a puncture and

swelling to his head.” Dkt. 6-1 at 1. Afterward, Plaintiff backed out of his cell

and his assailants returned to their living quarters when they saw Johnson and

other custodial personnel watching “from the Johnson door.” Id. at 2, 5.

At this point, Plaintiff was standing underneath a mounted television.

See id. at 2. Patino entered the module, told Plaintiff to “get down” and

“instantaneously” shot him with a Taser gun in the left side of his head and left

forearm. Id. at 2, 4. Patino used the gun on Plaintiff for one to three minutes,

causing Plaintiff to slide down the wall and hit the back of his head. See id. at

2. Plaintiff's head injury caused swelling and a “large hematoma,” and

Plaintiff was hospitalized for five days following the incident. Id. at 2, 5.

Plaintiff alleges that Patino used excessive force, failed to protect him from

assault by other inmates, and failed to report Plaintiff's assault by other

inmates. See Dkt. 6 at 16-17.

Plaintiff alleges that the County and Castillo failed to supervise and train

Patino and Doe. See id. at 3, 10-14, 20. Plaintiff also alleges that both

defendants failed to protect him. See id. at 14; Dkt. 6-1 at 1.

Plaintiff complains that defendants violated his Fourteenth Amendment

rights.” See Dkt. 6 at 19. Plaintiff also invokes a number of California state

laws: “|[b]reach of [c]ontract,” Article 1, Section 7 of the California

Constitution, California Government Code § 820.2, California Business and

Professional Code § 125.6, California Civil Code § 51, California Penal Code

§§ 242, 244.5, 673, 2080, and 3407, and numerous provisions of Title 15 of the

California Code of Regulations.’ See id. at 3, 5-16, 20; Dkt. 6-1 at 2. Plaintiff

seeks compensatory and punitive damages. See Dkt. 6-1 at 6.

I. STANDARD OF REVIEW

Dismissal for failure to state a claim “can be based on the lack of a

cognizable legal theory or the absence of sufficient facts alleged under a

cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

(9th Cir. 1988) (as amended). The complaint is construed in the light most

? Plaintiff also claims that Defendants violated his Fourth Amendment

rights “to be safe and secure in [his] person.” See Dkt. 6 at 19-20. The Court

finds that Plaintiff's constitutional claims are more properly analyzed under

the Due Process Clause of the Fourteenth Amendment. See Mistriel v. Kern

Cty., No. 03-06922, 2010 WL 1494821, at *6 (E.D. Cal. Apr. 14, 2010)

(finding that plaintiff's failure-to-protect claims were “more properly construed

under the Due Process Clause of the Fourteenth Amendment, rather than the

Fourth Amendment”); Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989)

(noting that Fourteenth Amendment’s Due Process Clause protects pretrial

detainees from “excessive force that amounts to punishment”).

> Plaintiff also alleges that Patino violated a nonexistent provision of the

California Government Code, Section 3153.5. See Dkt. 6 at 16.

favorable to Plaintiff and all material allegations are taken to be true. See

Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir. 2004). A complaint must “state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). This means that the complaint must plead “factual

content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). “The plausibility standard is not akin to a ‘probability

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

acted unlawfully.” Id.

“In civil rights cases where the plaintiff appears pro se, the court must

construe the pleadings liberally and must afford plaintiff the benefit of any

doubt.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988).

“A pro se litigant must be given leave to amend his or her complaint unless it is

absolutely clear that the deficiencies of the complaint could not be cured by

amendment.” Id. Before dismissing a pro se civil rights complaint for failure to

state a claim, the district court “must give the plaintiff a statement of the

complaint’s deficiencies.” Id.

IV. DISCUSSION

A. County

Plaintiff alleges that the County failed to protect him and failed to

supervise and train Patino and Doe. See Dkt. 6 at 3-9, 20. These allegations are

duplicative of the allegations Plaintiff raised in the TAC for his 2016 case. See

TAC at 5-8. Because the Court already dismissed these claims with prejudice

in Plaintiff's 2016 case, Plaintiff may not re-allege them here. See R&R at 7-8,

11; Order Accepting R&R at 1. Accordingly, Plaintiff's federal claims against

the County are subject to dismissal.

B. Patino

1. Official-Capacity Claims

Plaintiff names Patino as a defendant in his official capacity. See Dkt. 6

at 3. The Supreme Court has held that an “official-capacity suit is, in all

respects other 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 L.A., 946 F.2d 630, 646 (9th Cir. 1991). Such □

suit “is not a suit against the official personally, for the real party in interest is

the entity.” Graham, 473 U.S. at 166. As “custodial personnel” at WVDC,

Patino is an officer or agent of the County. See Dkt. 6 at 3. Therefore, all of

Plaintiff's claims against Patino in his official capacity are tantamount to

claims against the County.

Plaintiff brings constitutional claims against Patino based on use of

excessive force and failure to protect Plaintiff from assault by other inmates.

See id. at 16-17. Because Plaintiff effectively brings these claims against the

County, they are duplicative of the allegations that Plaintiff raised against the

County in the TAC for his 2016 case. See TAC at 5-8. The Court’s dismissal

with prejudice of Plaintiffs federal claims against the County in the 2016 case

forecloses Plaintiffs official-capacity claims against Patino. See R&R at 7-8,

11; Order Accepting R&R at 1. Accordingly, Plaintiff's official-capacity claims

against Patino are subject to dismissal.

2. Individual-Capacity Claims

Plaintiff's allegations suffice to state an excessive force complaint against

Patino. The Due Process Clause of the Fourteenth Amendment “protects a

pretrial detainee from the use of excessive force that amounts to punishment.”

Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). To prove an excessive force

claim under § 1983, a pretrial detainee must show that the “force purposely or

knowingly used against him was objectively unreasonable.” Kingsley v.

Hendrickson, 135 S. Ct. 2466, 2473 (2015). “[O]bjective reasonableness turns

on the facts and circumstances of each particular case.” Id. (citation omitted).

Factors that may bear on the reasonableness of the force used include “the

relationship between the need for the use of force and the amount of force

used; the extent of the plaintiff’s injury; any effort made by the officer to

temper or to limit the amount of force; the severity of the security problem at

issue; the threat reasonably perceived by the officer; and whether the plaintiff

was actively resisting.” Id. Here, taking Plaintiff’s allegations as true, his

attackers had departed, he was standing still, and Patino tased him in the head

and the forearm without warning for at least one minute. See Dkt. 6-1 at 2, 4.

Under these allegations, there was no apparent need for force, and Plaintiff

was not resisting. Patino’s use of force was therefore objectively unreasonable.

Therefore, the FAC successfully states an excessive force claim against Patino

in his individual capacity.

However, the FAC fails to state a failure-to-protect claim against Patino.

As a pretrial detainee, Plaintiff’s failure-to-protect claim against Patino arises

under the Fourteenth Amendment’s Due Process Clause. See Castro v. Cty. of

L.A., 833 F.3d 1060, 1067-68 (9th Cir. 2016) (en banc). The elements of a

pretrial detainee’s failure-to-protect claim under the Fourteenth Amendment

are: (1) the defendant made an intentional decision with respect to the

conditions under which the plaintiff was confined; (2) those conditions put the

plaintiff at substantial risk of suffering serious harm; (3) the defendant did not

take reasonable available measures to abate that risk, even though a reasonable

official in the circumstances would have appreciated the high degree of risk

involved – making the consequences of the defendant’s conduct obvious; and

(4) by not taking such measures, the defendant caused plaintiff’s injuries. See

id. at 1071. The third element requires that the defendant’s conduct be

“objectively unreasonable,” reflecting a state of mind “akin to reckless

disregard.” Id.

Although Plaintiff alleges that Patino “glave] the verbal order” for Doe

to open the cell door, which ultimately led to Plaintiff's assault by Wall and

Brown, Plaintiff does not allege facts establishing that it was objectively

unreasonable for Patino to do so. Dkt. 6-1 at 3; Castro, 833 F.3d at 1071.

Because Plaintiff provides no details about where he and his assailants were

located at the moment that Patino gave the order, Plaintiff's allegation that

Patino could see that Wall’s hands were wrapped in pieces of linen does not

suffice to show that Plaintiff faced a substantial risk of suffering serious harm.

See Dkt. 6 at 16; Castro, 833 F.3d at 1071. Similarly, that Patino watched the

assault from the Johnson door does not suffice to show his conduct was

unreasonable, because Plaintiff alleges no facts sufficient to show that Patino

did not take reasonable available measures to prevent or shorten the attack. See

Dkt. 6-1 at 2. Finally, Plaintiff's allegation that Patino later failed to report the

attack does not support a failure-to-protect claim because this omission cannot

be said to have “caused” Plaintiff's injuries. Castro, 833 F.3d at 1071; Dkt. 6 at

16. Plaintiff's failure-to-protect claim against Patino in his individual capacity

is therefore subject to dismissal.

C. Castillo

In addition to alleging that Castillo failed to protect him, Plaintiff names

Castillo as a defendant based on his alleged failure to supervise and train

Patino and Doe. “Government officials may not be held liable for the

unconstitutional conduct of their subordinates under a theory of respondeat

superior.” Iqbal, 556 U.S. at 676. However, in cases where the applicable

standard is deliberate indifference, Iqbal does not foreclose a plaintiff from

stating a claim for supervisory liability based upon the “supervisor’s knowledge

of and acquiescence in unconstitutional conduct by his or her subordinates.”

Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). “A defendant may be held

liable as a supervisor under § 1983 ‘if there exists either (1) his or her personal

involvement in the constitutional deprivation, or (2) a sufficient causal

connection between the supervisor’s wrongful conduct and the constitutional

violation.’” Id. (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)).

supervisor can be liable in his individual capacity for his own culpable

action or inaction in the training, supervision, or control of his subordinates;

for his acquiescence in the constitutional deprivation; or for conduct that

showed a reckless or callous indifference to the rights of others.’” Id. at 1208

(quoting Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)).

Aside from asserting that Castillo was required to supervise and train

Patino and Doe, Plaintiff provides no facts to support his conclusory

allegations that Castillo failed to do so. See Dkt. 6 at 3, 10-14. Plaintiff also

does not set forth any facts suggesting that Castillo personally participated in

or knowingly acquiesced to any of the alleged constitutional violations. See

Starr, 652 F.3d at 1207. As to Plaintiffs failure-to-protect claim, Plaintiff does

not allege any facts about Castillo’s actions or omissions at the time of the

assault that would allow the Court to conclude that his conduct was

objectively unreasonable. See Castro, 833 F.3d at 1071. Therefore, Plaintiff

fails to state a claim against Castillo.

D. Doe

Plaintiff alleges that Doe failed to protect him from his assault by other

inmates. See Dkt. 6 at 17; Dkt. 6-1 at 4. This claim is identical to the failure-to-

protect claim Plaintiff raised against Doe in the TAC from his 2016 case. See

TAC at 14-15. The Court’s dismissal with preyudice of Plaintiff's failure-to-

protect claim against Doe precludes Plaintiff from re-alleging the same claim

here. See R&R at 8-9, 11; Order Accepting R&R at 1. Accordingly, Plaintiff's

federal claim against Doe is subject to dismissal.

E. State-Law Claims

AS an initial matter, Plaintiff's claims under California Penal Code

§§ 242, 244.5, 673, 2080, and 3407 do not state a cause of action. A private

right of action under a criminal statute has rarely been implied. See Chrysler

Corp. v. Brown, 441 U.S. 281, 316 (1979). Where a private right of action has

been implied, “there was at least a statutory basis for inferring that a civil cause

of action of some sort lay in favor of someone.” Id. (quoting Cort v. Ash, 422

U.S. 66, 79 (1975)). Here, Plaintiff does not argue that a private cause of action

is implied in these provisions of the California Penal Code, and there is no

indication in those statutes that civil enforcement is available to him. See, e.g.,

Lopes v. Fremont Freewheelers, No. 07-06213, 2008 WL 3304944, at *6 (N.D.

Cal. Aug. 7, 2008) (dismissing plaintiff's claim under § 242 and finding “no

indication that civil enforcement of this statute [was] available to plaintiff’);

Jones v. Virga, No. 11-03000, 2012 WL 1868669, at *4 (E.D. Cal. May 22,

2012) (“California Penal Code § 673 includes no provision for civil

enforcement of any kind that is available to plaintiff.”’)

Similarly, Plaintiff's claims under Title 15 of the California Code of

Regulations are similarly defective because no private right of action is

available to Plaintiff. See, e.g., Davis v. Powell, 901 F. Supp. 2d 1196, 1211

(S.D. Cal. 2012) (“There is no implied private right of action under title fifteen

of the California Code of Regulations.”); Johnson v. Kernan, No. 16-07996,

2018 WL 6137170, at *8 (C.D. Cal. June 1, 2018) (dismissing plaintiff's claims

based on violations of California regulations governing prisons because “the

regulations in question do not provide a private right of action”).

As to Plaintiff's remaining state-law claims, the California Government

Claims Act requires that claims for money damages against a public entity or

its employees be presented to the public entity’s board within six months after

the cause of action accrues. See Cal. Gov’t Code §§ 911.2, 945.4. The claim

nN

must include a “general description of the... injury .. . so far as it may be

known at the time of presentation of the claim.” Cal. Gov’t Code § 910(d). Ifa

claim is filed between six months and a year after the cause of action accrues,

then the claimant may apply to present a late claim. See Cal. Gov’t Code

§ 911.4. The claim presentation requirement is an element of a cause of action

for damages against a public entity or official, and failure to present a claim

will result in dismissal of state-law claims. See State v. Superior Court, 32 Cal.

4th 1234, 1240-41, 1244 (2004). Federal courts thus require presentation for

state-law claims that seek damages against state public employees or entities.

See Karim-Panahi, 839 F.2d at 627 (finding that failure to comply with Act’s

claim-filing requirements bars pendent state-law claims). Thus, state-law

claims may proceed only if the claims were first presented as required by the

Act. See Volis v. Hous. Auth. of L.A. Emps., 670 F. App’x 543, 544 (9th Cir.

2016) (finding that district court properly dismissed state-law claims because

plaintiff “failed to file a timely claim as required by the California Government

Claims Act”). Because Plaintiff does not allege that he complied with the Act

through timely presentation of his claims, his remaining state-law claims are

subject to dismissal.

V. CONCLUSION

For the foregoing reasons, nearly all of the FAC are subject to dismissal.

Because it is not absolutely clear that the FAC’s deficiencies cannot be cured

by amendment, this dismissal is with leave to amend.‘ Accordingly, if Plaintiff

desires to pursue his claims, he must file a Second Amended Complaint

(“SAC”) within thirty-five (35) days of the date of this Order, remedying the

4 Although the FAC is dismissed with leave to amend, the Court advises

Plaintiff that any effort to re-allege claims that were previously dismissed by

this Court with prejudice in Case No. 16-1147 may result in a recommendation

to the District Judge that those claims be dismissed with prejudice.

11

deficiencies discussed above.” The SAC should bear the docket number

assigned in this case, be labeled “Second Amended Complaint,” and be

complete in and of itself without reference to the prior complaints or any other

pleading, attachment or document. The Clerk is directed to send Plaintiff a

blank Central District civil rights complaint form, which Plaintiff is

encouraged to use.

Plaintiff is admonished that if he fails to timely file an SAC, this

action may be dismissed with prejudice for failure to diligently prosecute

and for the reasons discussed in this Order.

Date: August 15, 2019 x ¢ 4 d i

DOUGLAS F. McCORMIC

United States Magistrate Judge

> Alternatively, Plaintiff may elect to file an SAC that is limited to his

§ 1983 excessive force claim against Patino in his individual capacity. The

Court will likely order service of such a complaint.

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