MEMORANDUM AND ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND
For the reasons discussed below, the Second Amended Complaint is dismissed with leave to amend. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1); 42 U.S.C. § 1997e(c).
Plaintiff, a state prisoner and former pretrial detainee at the West Valley Detention Center who has been granted leave to proceed without prepayment of the filing fee, filed a form pro se civil rights Complaint on April 7, 2009. The original Complaint challenged the conditions of confinement at the West Valley Detention Center. On July 31, 2009, the Court issued a Memorandum and Order dismissing the Complaint with leave to amend. On August 24, 2009, Plaintiff filed a First Amended Complaint. Like the original Complaint, the First Amended Complaint challenged Plaintiff's conditions of confinement while a pretrial detainee at the West Valley Detention Center.
On February 2, 2010, the Court issued a Memorandum and Order dismissing the First Amended Complaint with leave to amend. The Court advised Plaintiff that he would be given one last opportunity to file a complaint complying with Rule 8 and addressing the deficiencies previously identified. On February 10, 2010, Plaintiff filed a Second Amended Complaint ("SAC").
SUMMARY OF ALLEGATIONS OF SECOND AMENDED COMPLAINT
The Second Amended Complaint names as the sole Defendant the San Bernardino County Sheriff's Department Health Services (the "DHS"), and purports to sue the DHS in both individual and official capacities (SAC, p. 3). The Second Amended Complaint attempts to assert two claims for relief. Plaintiff asserts that the DHS retaliated against Plaintiff for complaining of injuries Plaintiff received on or about October 28, 2008. Plaintiff also asserts that the DHS denied Plaintiff adequate medical care and was deliberately indifferent to Plaintiff's medical needs (SAC, p. 5, parts 1 and 2). Plaintiff appears to allege that his left arm was injured on October 28, 2008, but that the DHS denied Plaintiff x-rays until on or about January 29, 2009 (by which time, according to Plaintiff, the alleged injury had healed) (SAC, p. 5, parts 1 and 2).
Since Plaintiff is a prisoner proceeding on a civil rights complaint naming a governmental defendant and addressing conditions in a correctional facility, the Court must screen the Complaint and dismiss any claims that fail to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A ("prisoner" complaints against government defendants by detained persons accused of crimes); 42 U.S.C. § 1997e(c) (complaints regarding "prison" conditions by a prisoner confined in any jail, prison, or other correctional facility); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) ("The statutory authority is clear: 'the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted.'") (emphasis in original, citing 28 U.S.C. § 1915(e)(2)(B)(ii)), cert. denied, 525 U.S. 1154 (1999).
When a plaintiff appears pro se, the court construes the pleadings liberally to afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988); see also Jackson v. Carey, 353 F.3d 750, 756 (9th Cir. 2003) (applying same). Giving Plaintiff the benefit of any doubt, the Second Amended Complaint in this action appears deficient for the following reasons.
I. The Second Amended Complaint Fails to State A Claim Against the DHS
The Second Amended Complaint does not cure the deficiencies the Court identified in its July 31, 2009 and February 2, 2010 Memoranda and Orders with respect to the allegations against the DHS.
The Second Amended Complaint does not identify any DHS employees involved in the events alleged in the Second Amended Complaint.*fn1
Instead, Plaintiff generally sues the DHS. As the Court has advised Plaintiff, Plaintiff may not sue the DHS, a San Bernardino County entity, on a theory of respondeat superior for the conduct of county employees. Respondeat superior is not a theory of liability cognizable under 42 U.S.C. section 1983. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1185 (9th Cir. 2002), cert. denied, 537 U.S. 1106 (2003).
A county or municipal entity may be held liable under section 1983 only if the alleged wrongdoing was committed pursuant to a county or municipal policy, custom or usage. See Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 402-04 (1997); Monell v. New York City Department of Social Services, 436 U.S. 658, 691 (1978); see also Gibson v. County of Washoe, Nev., 290 F.3d at 1185-87 (describing "two routes" to municipal liability, where municipality's official policy, regulation or decision violated plaintiff's ...