United States District Court, S.D. California
September 15, 2005.
THOMAS EDWIN SHOEMAKER, Inmate Booking Plaintiff,
SAN DIEGO COUNTY JAIL., Defendants.
The opinion of the court was delivered by: IRMA GONZALEZ, District Judge
ORDER SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A
CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND § 1915A(b)(1)
Plaintiff, pre-trial detainee currently residing at the George
Bailey Detention Facility in San Diego, California, and
proceeding pro se, has filed a civil rights Complaint pursuant to
42 U.S.C. § 1983. Plaintiff alleges that while he was
incarcerated at the San Diego Central Jail, a deputy sheriff
caused Plaintiff's cell door to be shut on his fingers. See
Compl. at 3.
Plaintiff did not prepay the $250 filing fee mandated by
28 U.S.C. § 1914(a) to commence a civil action; instead, he filed a
Motion to Proceed In Forma Pauperis ("IFP") pursuant to
28 U.S.C. § 1915(a) [Doc. No. 2]. The Court granted Plaintiff's
Motion to Proceed IFP on August 26, 2005 [Doc. No. 3]. I. Initial Screening per 28 U.S.C. § 1915(e)(2)(B) and §
A. Standard of Review
The Prison Litigation Reform Action ("PLRA") obligates the
Court to review complaints filed by all persons proceeding IFP
and by those, like Plaintiff, who are "incarcerated or detained
in any facility [and] accused of, sentenced for, or adjudicated
delinquent for, violations of criminal law or the terms or
conditions of parole, probation, pretrial release, or
diversionary program," "as soon as practicable after docketing."
See 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
provisions, the Court must sua sponte dismiss any IFP or prisoner
complaint, or any portion thereof, which is frivolous, malicious,
fails to state a claim, or which seeks damages from defendants
who are immune. See 28 U.S.C. § 1915(e)(2)(B) and § 1915A;
Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he
provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to
prisoners."); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.
2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only
permits but requires" the court to sua sponte dismiss an in
forma pauperis complaint that fails to state a claim); Resnick
v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).
Before amendment by the PLRA, the former 28 U.S.C. § 1915(d)
permitted sua sponte dismissal of only frivolous and malicious
claims. Lopez, 203 F.3d at 1126, 1130. An action is frivolous
if it lacks an arguable basis in either law or fact. Neitzke v.
Williams, 490 U.S. 319, 324 (1989). However,
28 U.S.C. § 1915(e)(2) and § 1915A now mandate that the court reviewing an
IFP or prisoner's suit make and rule on its own motion to dismiss
before effecting service of the Complaint by the U.S. Marshal
pursuant to FED.R.CIV.P. 4(c)(2). See Calhoun, 254 F.3d at 845;
Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth,
114 F.3d 601, 604-05 (6th Cir. 1997) (stating that sua sponte
screening pursuant to § 1915 should occur "before service of
process is made on the opposing parties"); Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing
28 U.S.C. § 1915A).
"[W]hen determining whether a complaint states a claim, a court
must accept as true all allegations of material fact and must
construe those facts in the light most favorable to the
plaintiff." Resnick, 213 F.3d at 447; Barren,
152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure
12(b)(6)"); Andrews, 398 F.3d at 1121. In addition, the Court
has a duty to liberally construe a pro se's pleadings, see
KarimPanahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th
Cir. 1988), which is "particularly important in civil rights
cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.
1992). In giving liberal interpretation to a pro se civil rights
complaint, however, the court may not "supply essential elements
of claims that were not initially pled." Ivey v. Board of
Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir.
B. Failure to State a Claim
As currently pleaded, it is clear that Plaintiff's Complaint
fails to state a cognizable claim under 42 U.S.C. § 1983. Section
1983 imposes two essential proof requirements upon a claimant:
(1) that a person acting under color of state law committed the
conduct at issue, and (2) that the conduct deprived the claimant
of some right, privilege, or immunity protected by the
Constitution or laws of the United States. See
42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117, 2122
(2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985)
To the extent Plaintiff only names the "San Diego County Jail"
as a Defendant, his Complaint fails to state a claim because a
municipal agency or department is not a "person" subject to suit
under § 1983. See Vance v. County of Santa Clara,
928 F. Supp. 993, 996 (N.D. Cal. 1996) ("Naming a municipal department as a
defendant is not an appropriate means of pleading a § 1983 action
against a municipality.") (citation omitted); Powell v. Cook
County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) ("Section
1983 imposes liability on any `person' who violates someone's
constitutional rights `under color of law.' Cook County Jail is
not a `person.').
While the County of San Diego itself may be considered a
"person" and therefore, a proper defendant under § 1983, see
Monell v. Department of Social Services, 436 U.S. 658, 691
(1978); Hammond v. County of Madera, 859 F.2d 797, 801 (9th
Cir. 1988), as a municipality it may be held liable under § 1983
only where the Plaintiff alleges facts to show that a
constitutional deprivation was caused by the implementation or
execution of "a policy statement, ordinance, regulation, or decision officially adopted and
promulgated" by the County. Monell, 436 U.S. at 690; Board of
the County Commissioners v. Brown, 520 U.S. 397, 402-04 (1997);
Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995). In other
words, "respondeat superior and vicarious liability are not
cognizable theories of recovery against a municipality." Miranda
v. Clark County, Nevada, 279 F.3d 1102, 1109-10 (9th Cir. 2002).
"Instead, a Monell claim exists only where the alleged
constitutional deprivation was inflicted in `execution of a
government's policy or custom."' Id. (quoting Monell,
436 U.S. at 694). Thus, even were the Court to liberally construe
Plaintiff's allegations against the San Diego County Jail as an
attempt to state a claim against County of San Diego, Plaintiff
has not stated a § 1983 claim because he has failed to allege
that any individual County employee deprived him of a
constitutional right pursuant to official municipal policy,
custom or practice. See Monell, 436 U.S. at 690; Brown,
520 U.S. at 403.
Accordingly, the Court finds that Plaintiff's Complaint fails
to state a section 1983 claim upon which relief may be granted,
and is therefore subject to dismissal pursuant to
28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). The Court will provide Plaintiff with
an opportunity to amend his pleading to cure the defects set
forth above. Plaintiff is warned that if his amended complaint
fails to address the deficiencies of pleading noted above, it may
be dismissed with prejudice and without leave to amend.
II. Conclusion and Order
Good cause appearing, IT IS HEREBY ORDERED that:
Plaintiff's Complaint is DISMISSED without prejudice for
failing to state a claim upon which relief may be granted. See
28 U.S.C. §§ 1915(e)(2)(b)(ii) & 1915A(b)(1). However, Plaintiff
is GRANTED forty five (45) days leave from the date this Order
is stamped "Filed" in which to file a First Amended Complaint
which cures all the deficiencies of pleading noted above.
Plaintiffs Amended Complaint must be complete in itself without
reference to the superseded pleading. See S.D. CAL. CIVLR.
15.1. Defendants not named and all claims not realleged in the
Amended Complaint will be deemed to have been waived. See King
v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiffs Amended Complaint still fails to state a
claim upon which relief may be granted, it may be dismissed
without further leave to amend and may hereafter be counted as a
"strike" under 28 U.S.C. § 1915(g).*fn1 See McHenry v.
Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).
IT IS SO ORDERED.
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