The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
I. The Court must screen the First Amended Complaint
Plaintiffs are proceeding with a civil rights action pursuant to 42 U.S.C. § 1983. On July 7, 2010, plaintiffs filed an application to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915. (Doc. 3) Because Plaintiff has been granted leave to proceed IFP, this Court must screen the First Amended Complaint ("FAC") under 28 U.S.C. § 1915(e)(2)(B), which requires the dismissal of a case at any time if the court determines that it (1) "is frivolous or malicious," (2) "fails to state a claim on which relief may be granted" or (3) "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i),(ii) and (iii).
Plaintiff's FAC seeks damages under 42 U.S.C. § 1983. To warrant relief under this section, plaintiffs must show that the defendants' acts or omissions caused the deprivation of the their constitutionally protected rights. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1993). "A person deprives another of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]." Id. There must be an actual causal connection or link between the actions of each defendant and the deprivation alleged to have been suffered by plaintiffs. See Monell v. Department of Social Services, 436 U.S. 658, 691-692 (1978)(citing Rizzo v. Goode, 432 U.S. 362, 370-371(1976)).
There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993); Monell, 436 U.S. at 691 (the supervisor of someone who allegedly violated a plaintiff's constitutional rights is not made liable for the violation by virtue of that role). "Liability under § 1983 arises only upon a showing of personal participation by the defendant. (Citation.) A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. There is no respondeat superior liability under § 1983." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), citation omitted.
Recently, the Supreme Court rejected that a supervisor can be held liable for his mere "knowledge and acquiescence" in unlawful conduct by his subordinates. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (U.S. 2009). The Court held,... respondent believes a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution. We reject this argument. Respondent's conception of "supervisory liability" is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeeds of their agents. In a § 1983 suit or a Bivens action--where masters do not answer for the torts of their servants--the term "supervisory liability" is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.
Section 1983 complaints are governed by the notice pleading standard in Federal Rule of Civil Procedure 8(a). Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give fair notice and state the elements of plaintiffs' claim plainly and succinctly. Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). In other words, the complaint must give the defendants fair notice of what constitutes the plaintiffs' claims and the grounds upon which they rest. Although a complaint need not outline all of the elements of a claim, it must be possible to infer from the allegations that all of the elements exist and that plaintiffs are entitled to relief under a viable legal theory. Walker v. South Cent. Bell Telephone Co., 904 F.2d 275, 277 (5th Cir. 1990).
In Ashcroft v. Iqbal, 129 S.Ct. at 1949, the Court observed,
[T]he pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. [Citations]. A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." [Citation]. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." [Citation].
The Court further clarified that, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Citation]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation]. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"
Id. The Court instructed, "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. at 1950. However, the conclusions contained in the pleading "are not entitled to the assumption of truth." Id.
III. Summary of the Allegations
Plaintiffs allege that their decedent, Ruben Alejandro Morales ("Morales"), was shot and killed by a member of the Delano Police Department on July 6, 2009. (Doc. 7 at 8-9) At the time, Morales rented a room in the home of Maria Nunez. Id. When Ms. Nunez arrived at the home at about midnight, she noticed that the front door was ajar and that there were lights flickering inside. Id. Nunez called the police and when they arrived, she reported that Morales was lawfully inside. Id. Although other officers inspected the home and "cleared it," Officers Mejia and Manuele entered the residence from the backyard. Id. When they encountered Morales in his bedroom, Mejia shot him at "point-blank" range. Id.
After the shooting, Morales "lay dying on the floor" but neither Mejia nor Manuele provided medical attention in a timely fashion. (Doc. 7 at 8-9) Other Delano Police Officers who were present at the scene, ignored Morales' need for medical attention. Id. Eventually a call was placed requesting medical assistance. Id. Plaintiffs allege that Kern dispatched its own employees or dispatched agents of Kern to provide medical assistance but that this medical personnel did not arrive at the scene for 20 minutes despite being only five miles away at the time of the dispatch. (Doc. 7 at 9) When the medical personnel arrived at the scene, Morales was still alive. Id. The medical personnel transported the decedent to Delano Regional Medical Center where he was pronounced dead at 1:10 a.m. Id.
Based upon these factual allegations, the Plaintiffs seek to impose liability under 42 USC § 1983 for violations of Morales' Fourth, Fourteenth and Eighth Amendments rights and for violations of their Fourth and Fourteenth Amendment rights. They seek to impose liability ...