The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER: (1) DENYING AMENDED MOTION TO PROCEED IN FORMA PAUPERIS AS MOOT [Doc. No. 5] AND (2) DISMISSING AMENDED SAN DIEGO COMPLAINT FOR FAILING TO STATE A CLAIM AND FOR SEEKING DAMAGES FROM DEFENDANTS WHO ARE IMMUNE PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) & 1915A(b)
Plaintiff, a state inmate currently incarcerated at the California Rehabilitation Center in Norco, California, and proceeding pro se, has initiated this civil action pursuant to 42 U.S.C. § 1983.
On June 4, 2009, the Court granted him leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a), but sua sponte dismissed his Complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) [Doc. No. 3]. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (2000). Specifically, the Court found that because, on the face of his pleading, Plaintiff claimed to have been subjected to excessive force by Metropolitan Transit System agents on June 26, 2004, his claims were barred by the statute of limitations. See June 4, 2009 Order [Doc. No. 3] at 4-5, citing Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993) (where the running of the statute of limitations is apparent on the face of the complaint, dismissal for failure to state a claim is proper.)). The Court further found that while not entirely clear, it appeared Plaintiff claimed to have been subjected to excessive force and inadequate medical care at the hands of unidentified San Diego County Sheriff's deputies and/or employees of the County of San Diego; however, his Complaint failed to allege he was injured as the result of a municipal policy, custom or practice. (Id. at 6-7, citing Monell v. Department of Social Services, 436 U.S. at 658, 690-91 (1978)). Because Plaintiff is proceeding without counsel, the Court notified Plaintiff of his pleading deficiencies and granted him an opportunity to amend his Complaint in order to fix them. (Id. at 7-8.) See also Lucas v. Dept. of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) ("Unless it is absolutely clear that no amendment can cure the defect ... a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend.")
Plaintiff has since filed an Amended Complaint [Doc No. 4], as well as an "Amended" Motion to Proceed IFP [Doc. No. 5].
II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
As the Court noted in its previous Order, the Prison Litigation Reform Act ("PLRA") obligates it 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), 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; Lopez, 203 F.3d at 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick, 213 F.3d at 446 n.1 (§ 1915A).
In his Amended Complaint, Plaintiff names the Metropolitan Transit System, the San Diego Trolley, the County of San Diego and the United States of America as Defendants. (Amend. Compl. at 1-2.) First, Plaintiff cannot sue the United States under § 1983. Under the well-established legal doctrine of sovereign immunity, the United States, its departments, and agencies cannot be sued without its express consent. See U.S. v. Mitchell, 463 U.S. 206, 212, (1983).
Second, as noted in the Court's June 4, 2009 Order, while "municipalities and other local government units ... [are] among those 'persons' to whom § 1983 applies," Monell, 436 U.S. at 690, Plaintiff must allege an injury resulting from "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Id. at 694. There is no respondeat superior liability. Id. at 691. Thus, four conditions that must be satisfied in order to establish municipal liability for failing to act to preserve constitutional rights: (1) that the plaintiff possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and (4) that the policy is the moving force behind the constitutional violation.
Dietrich v. John Ascuaga's Nugget, 548 F.3d 892, 900 (9th Cir. 2008) (citing Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996) (internal quotation marks omitted)). While Plaintiff has been notified of the pleading requirements for stating a claim based on municipal liability, his Amended Complaint, like his original Complaint, fails to allege any of the elements essential for pleading a Monell claim, and is subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446 n.1.
Finally, while the Court previously found Plaintiff's claims untimely and permitted him leave to allege facts that might show he is entitled to either statutory or equitable tolling, see June 4, 2009 Order at 4-5, citing Fink v. Shedler, 192 F.2d 911, 916 (9th Cir. 1999), his Amended Complaint includes no such allegations. See Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993). Accordingly, for this additional reason, the Court finds Plaintiff's Amended Complaint fails to state a claim upon which relief can be granted. See 28 U.S.C. §§ 1915(e)(2), 1915A(b).
III. Conclusion and Order
Good cause appearing therefor, IT IS HEREBY ...