United States District Court, S.D. California
September 16, 2005.
JOHN SKOVERSKI, Inmate Booking No. 5702531, Plaintiff,
SERGEANT PULLEDIN, et al., Defendants.
The opinion of the court was delivered by: MARILYN HUFF, Chief Judge, District
(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
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
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.
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