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Chris Wamalwa Kibunguchy v. Sacramento County Police Department

December 14, 2010

CHRIS WAMALWA KIBUNGUCHY, PLAINTIFF,
v.
SACRAMENTO COUNTY POLICE DEPARTMENT, ET AL., DEFENDANTS.



ORDER

Chris Wamalwa Kibunguchy, an inmate confined at Atascadero State Hospital, filed this pro se civil rights action under 42 U.S.C. § 1983. Plaintiff's complaint concerns events alleged to have occurred during his arrest, while detained at the Sacramento County Jail, and while incarcerated thereafter. In addition to filing a complaint, plaintiff has filed an application to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

I. Request to Proceed In Forma Pauperis

Plaintiff has requested leave to proceedin forma pauperis pursuant to 28 U.S.C. § 1915. Dckt. No. 11. Plaintiff's application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

II. Screening Order

Pursuant to 28 U.S.C. § 1915A, the court shall review "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

A district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570).

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. 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. 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. (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950.

The Civil Rights Act under which this action was filed provides: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)

The court has reviewed plaintiff's complaint pursuant to 28 U.S.C. § 1915A and finds it does not state a cognizable claim against any defendant for the following reasons.

Plaintiff alleges that, on the night he was arrested, he got into a fight with defendant Scott Cunningham. He took a cold bath to cool down, which was interrupted by the appearance of arresting officers, defendants Thompson and Garret. Defendants Thompson and Garret "optioned to summon" plaintiff out of the bath with an "electric assault handgun," which they shot at him twice. After feeling the jolt from the gun, the next thing plaintiff remembers is laying on a gurney at the jail. Plaintiff had passed out and fallen on his hand, breaking it. Rather than give him pain medicine for his hand, jail staff forced him to take psychiatric medicine to which he had a severe allergic reaction. Plaintiff was sentenced to two years for the fight, although he contends that he did not commit assault because the fight was mutual. Plaintiff's two-year sentence expired on June 19, 2009, however he has not been released but instead transferred to Atascadero State Hospital. A parole officer, presumably defendant Austin, is "threatening" plaintiff "to better watch out."

These facts fail to state a claim against defendant Sacramento Police Department. To state a claim for a violation of civil rights against a municipal agency under § 1983, a plaintiff must allege that a departmental policy, custom, or practice was the moving force behind the constitutional violation he allegedly suffered. Galen v. County of L.A., 477 F.3d 652, 667 (9th Cir. 2007). No such allegations appear in the complaint.

Plaintiff's facts further fail to state a claim against defendant Cunningham. Plaintiff includes no facts establishing that Cunningham, apparently a private citizen, acted under color of ...


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