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SKOVERSKI v. PULLEDIN

United States District Court, S.D. California


September 16, 2005.

JOHN SKOVERSKI, Inmate Booking No. 5702531, Plaintiff,
v.
SERGEANT PULLEDIN, et al., Defendants.

The opinion of the court was delivered by: MARILYN HUFF, Chief Judge, District

ORDER:

(1) DENYING MOTION FOR APPOINTMENT OF COUNSEL [Doc. Nos. 9, 11];
(2) SUA SPONTE DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PER 28 U.S.C. § 1915(e)(2)(B)(ii); and
(3) DENYING PLAINTIFF'S EX PARTE APPLICATION FOR SERVICE OF PROCESS OF SUMMONS AS MOOT
I. Procedural History
On April 26, 2005, Plaintiff, an inmate currently incarcerated at the George Bailey Detention Facility in San Diego, California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. In his original Complaint, Plaintiff alleged that Sergeant Pulledin of the San Diego Sheriff's Department used excessive force against him, during his arrest, in violation of his constitutional rights. See Compl. at 3. Plaintiff also named two unidentified Sheriff Deputies, as well as San Diego County Sheriff Kolender. Plaintiff sought compensatory and punitive damages, as well as injunctive relief. Id. at 7.

On June 3, 2005, this Court granted Plaintiff's Motion to Proceed In Forma Pauperis ("IFP") and sua sponte dismissed Plaintiff's Complaint for failing to state a claim upon which § 1983 relief could be granted. See June 3, 2005 Order at 6-7. Specifically, the Court informed Plaintiff that he failed to state a claim against San Diego Sheriff Bill Kolender because there is no respondeat superior liability under 42 U.S.C. § 1983. Id. at 5 (citing Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993)). The Court dismissed Plaintiff's Complaint but provided Plaintiff thirty (30) days leave to file an Amended Complaint correcting the deficiencies of pleading noted in the Court's Order. Id. at 6. On July 6, 2005, Plaintiff filed his First Amended Complaint ("FAC"). Plaintiff also has filed an "Ex Parte Application for Service of Process," [Doc. No. 6], along with a "Petition for Assignment of Counsel" [Doc. No. 9].

  II. Motion for Appointment of Counsel

  Plaintiff requests the appointment of counsel to assist him in prosecuting this civil action. The Constitution provides no right to appointment of counsel in a civil case, however, unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons. This discretion may be exercised only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both the `likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these issues is dispositive and both must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

  Here, it appears that Plaintiff has not demonstrated a likelihood of success on the merits. Id. Under these circumstances, the Court denies Plaintiff's request without prejudice, as neither the interests of justice nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. III. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2)(B)(ii)

  The Court has carefully reviewed Plaintiff's Amended Complaint as mandated by 28 U.S.C. §§ 1915(e)(2) and 1915A and, for the reasons set forth below, finds that it is also subject to sua sponte dismissal because: (1) it fails to cure the deficiencies of pleading identified in the Court's June 3, 2005 Order; and (2) it still fails to state a claim upon which § 1983 relief may be granted. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).

  As this Court noted in its June 3, 2005 Order, the Prison Litigation Reform Act ("PLRA") requires courts 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. § 1915A(b). Under these provisions, the Court must sua sponte dismiss prisoner and all other IFP complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek monetary relief from a defendant immune from such relief. See 28 U.S.C. § 1915A; Lopez, 203 F.3d at 1126-27 (§ 1915(e)(2)); Resnick, 213 F.3d at 446 (§ 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. However, 28 U.S.C. § 1915A(b) now mandates that the court reviewing an IFP or prisoner's suit make and rule on its own motion to dismiss before directing that the Complaint be served by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 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)"). However, while liberal construction is "particularly important in civil rights cases," Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the court may nevertheless not "supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Moreover, the court is not required to grant leave to amend if it determines that the pleading "could not possibly be cured by the allegation of other facts," Lopez, 203 F.3d at 1130-31 (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)), or if amendment would prove futile. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (where amendment of litigant's complaint would be futile, denial of leave to amend is appropriate).

  A. Respondeat Superior

  Once again, Plaintiff's allegations against San Diego Sheriff Kolender are based on his role as a supervisor. Specifically, Plaintiff alleges that Defendant Kolender is "responsible for the supervision training" and he failed to "properly maintain, train and supervise his subordinate and the jail." See FAC at 3. The Court previously informed Plaintiff that there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, "[t]he inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). In order to avoid the respondeat superior bar, Plaintiff must allege personal acts by each individual Defendant which have a direct causal connection to the constitutional violation at issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). As Sheriff, this Defendant may only be held liable for the allegedly unconstitutional violations of a subordinate if Plaintiff alleges specific facts which show: (1) how or to what extent he personally participated in or directed a subordinate's actions, and (2) in either acting or failing to act, he was an actual and proximate cause of the deprivation of Plaintiff's constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Once again, Plaintiff's First Amended Complaint fails to set forth facts which might be liberally construed to support an individualized constitutional claim against Defendant Kolender. Thus, the Court dismisses all claims against Defendant Kolender, with prejudice and without leave to amend, for failing to state a claim upon which relief could be granted. B. Municipal Liability

  To the extent Plaintiff names the "County of San Diego Jail" and the County of San Diego Sheriff's Department as Defendants, his First Amended 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 or the San Diego Sheriff's Department 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 First Amended 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 one final 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.

  IV. Conclusion and Order

  Good cause appearing, IT IS HEREBY ORDERED that:

  1. Plaintiff's Petition for Appointment of Counsel [Doc No. 9] and Request for Appointment of Counsel [Doc. No. 11] are DENIED without prejudice.

  2. Plaintiff's First Amended Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. However, Plaintiff is GRANTED forty five (45) days leave from the date this Order is stamped "Filed" in which to file a Second Amended Complaint which cures all the deficiencies of pleading noted above. Plaintiff's Second Amended Complaint must be complete in itself without reference to the superseded pleading. See S.D. Cal. Civ. L.R. 15.1. Defendants not named and all claims not re-alleged in the Second Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff's Second Amended Complaint fails to state a claim upon which relief may be granted, it may be dismissed without further leave to amend.

  3. Plaintiff's Ex Parte Application for Service of Process and Summons [Doc. No. 6] is DENIED, without prejudice, as moot.

  IT IS SO ORDERED.

20050916

© 1992-2005 VersusLaw Inc.



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