The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN DEFENDANTS, TO FIND THAT PLAINTIFF STATES COGNIZABLE CLAIM AGAINSTSOME DEFENDANTS, ORDERSERVICE OF THE THIRD AMENDED COMPLAINT OBJECTIONS DUE: 30 DAYS
Plaintiff, Robert Glen Mistriel ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed a third amended complaint ("TAC") on October 12, 2010. Plaintiff states that his claims arise under 42 U.S.C. § 1983 for violations of his Fourth, Fifth, Eighth, and Fourteenth Amendment rights.
Plaintiff claims the following individuals were members of an organization called The Lords of Bakersfield ("LOB"): Ed Jagels ("Jagels"), Al Leddy ("Leddy"), Steven Tauzer ("Tauzer"), Edwin Buck ("Buck"), Bob Patterson ("Patterson"), Glen Fitts ("Fitts"), Don Rogers ("Rogers"), Stan Harper ("Harper"), Alfred 'Ted' Fritts ("Fritts"), Hurbert 'Eli' Elias ("Elias"), and Tommy Tarver ("Tarver"). Plaintiff contends that the LOB is a group of men who seeks out and molests young boys.
Plaintiff claims that, after Defendant Tarver was murdered in 1978, authorities suspected Plaintiff's involvement. (TAC at 11:8-9.) Ultimately, he was removed from the custody of his mother, made a ward of the court, and was eventually placed in the care of defendants San Felipe Boys Home ("SFBH"), Sally Rockholt ("Rockholt"), Kern County Probation Department ("KCPD"), Glen Brown ("Brown"), Bakersfield Police Department ("BPD"), and Child Protective Services ("CPS").*fn1 (TAC at 11:13-17.) He alleges that the acquisition of custody, i.e., placement outside his mother's home, was "affirmative government action which gave rise to and created a 'special relationship' between the state, CPS, City of Bakersfield, Kern County, CPS, Rockholt, SFBH, KCPD, Brown, BPD, Fitts, Patterson, and certain other does."*fn2 (TAC at 11:22-26.)
Plaintiff claims that, while he was a ward of the court or otherwise the responsibility of the government after being removed from his mother's home, the LOB Defendants were continuously permitted to remove him from his placement at the SFBH. (TAC at 11:9-19; 11:20-25.) During temporary removals from SFBH, Plaintiff claims he was drugged, physically and sexually abused, and exploited through child pornography, before being returned to those entrusted with his care at SFBH. (TAC at 14:6-14.) Plaintiff alleges that, despite informing SFBH, Rockholt, Brown, KCPD, CPS, Patterson and unnamed others of the abuse he received at the hands of various LOB Defendants when they removed him from SFBH, he was "completely rebuffed." (TAC at 14:9-11.)
Plaintiff also alleges that the LOB defendants would attend parties or social gatherings, sometimes during work breaks or while on duty, at which time they would exploit Plaintiff and other youths through child pornography. (TAC at 14:23-26 - 15:2-6; 15:10-11.) Plaintiff asserts that he was "utilized as a scout to recruit other unwary youths." (TAC at 15:2-13.)
Plaintiff contends that, despite having an opportunity and a duty to stop Plaintiff from being harmed, Defendants Rockholt, KCPD, Brown, SFBH, CPS, Harper, Rogers, Elias, Jagels, Leddy, Buck, Patterson, BPD, and City of Bakersfield refused to do so. (TAC at 16:2-10.) Instead, these defendants "acquiesced, condoned, and ratified these acts by concealing them and through [their] government and political influences, indemnified each other from criminal persecution and ramification[s]." (TAC at 16:20-24.)
Plaintiff further claims the following individuals, businesses, municipalities, and municipal departments knew of the abuse and, despite a duty to intervene, allowed it to continue: Patterson, Fitts, the County of Kern, Kern County District Attorney's Office ("KCDAO"), Kern County Personnel Board ("KCPB"), KCPD, Brown, Rockholt, City of Bakersfield, BPD, SFBH, the Bakersfield California Newspaper, Eli's Clock Emporium, and CPS.
Plaintiff claims the following municipalities, municipal departments or sub-units, and supervisors are liable for implementing and maintaining deficient policies and customs: County of Kern, City of Bakersfield, KCDAO, Jagels, Leddy, Tauzer, KCPB, Buck, KCPD, Brown, BPD, Patterson, Fitts, Rogers, and CPS. Plaintiff claims the policies and customs were the "proximate cause and moving force behind each of the alleged violations." The allegedly deficient policies include:
1) failing to properly train and educate all officers and personnel in applicable laws and in which to detect through observation and interaction signs of child physical and sexual abuse; 2) failing to adequately supervise employees and children charged to their care or employ; 3) failing to properly discipline employees refusing to adhere to and enforce the law faithfully; 4) failing to investigate complaints and claims of physical or sexual abuse or any other instance in which abuse of authority is alleged despite how blatant the wrongdoing; 5) permitting the circumvention of arrest and prosecution o[f] LOB members; 6) permitting the repeated falsification of reports with impunity; 7) repeated and deliberate failures to pursue and discover known offenders who were known to be prone to child sexual abuse, constitutional violations and/or cover ups and who were employed by or contracting with any state, county or city agency mentioned herein; 8) permitting the faulty and fraudulent convictions of innocent persons with impunity; 9) permitting the falsification or malicious withholding of material evidence or the destruction of such evidence with impunity; 10) failing to properly assign and monitor adequately troublesome personnel especially those responsible for the placement, safekeeping, and protection of children; 11) systematically discouraging and ignoring early reports and claims of child exploitation, and physical/sexual abuse through intimidation and violence; 12) deliberately refusing and failing to apprehend identified and responsible child abusers and predators and bring to justice those responsible for said abuse; 13) permitting LOB members or associates to manipulate and bribe officials from reporting or arresting them through egregious abuses of authority; and, 14) refusing to report flagrant abuses of power and authority of any mentioned state, county or city employee. (TAC at 22-23.)*fn3
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. Id. §§1915A(b)(1), (2), 1915(e)(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." Id. § 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-meaccusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain 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] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability. . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555).
C. Claims Against Municipal Departments and Sub-Units Should Be Dismissed
Plaintiff attempts to set forth Section 1983 claims for Fourteenth Amendment violations against the Kern County Probation Department, the Kern County District Attorney's Office, the Kern County Personnel Board, the Bakersfield Police Department, and Kern County's Child Protective Services Department.
While Section 1983 is not itself a source of substantive rights, it provides a cause of action against any person who, under color of law, deprives an individual of federal constitutional rights or limited federal statutory rights. 42 U.S.C. § 1983; Grahm v. Connor, 490 U.S. 386, 393-94 (1989). The term "persons" encompasses state and local officials sued in their individual capacities, private individuals, and entities which act under the color of state law and local governmental entities. Vance v. Cnty. of Santa Clara, 928 F. Supp. 993, 995-96 (N.D. Cal. 1996). However, the entities named above are all municipal departments and sub-units of local governments and are not generally considered "persons" within the meaning of Section 1983. See United States v. Kama, 394 F.3d 1236, 1239 (9th Cir. 2005) (Ferguson, J., concurring) (noting that municipal police departments and bureaus are generally not considered "persons" within the meaning of Section1983); Vance, 928 F. Supp. at 995-96 (dismissing sua sponte Santa Clara Department of Corrections as improper defendant); Jewett v. City of Sacramento Fire Dep't, No. CIV. 2:10-556 WBS KJN, 2010 WL 3212774, at *2 (E.D. Aug. 12, 2010) (finding fire department not a "person" under Section 1983 and dismissing suit against it); Wade v. Fresno Police Dep't, No. Civ. 09-0588 AWI DLB, 2010 WL 2353525, at *4 (E.D. Cal. June 9, 2010) (finding police department is not a "person" under Section 1983); Morris v. State Bar of Cal., No. Civ. 09-0026 LJO GSA, 2010 WL 966423, at *3 (E.D. Cal. Mar. 11, 2010) (finding that a fire department is a municipal department and therefore not a "person" under Section 1983); Sanders v. Aranas, No. 1:06-CV-1574 AWI SMS, 2008 WL 268972, at *3 (E.D. Cal. Jan 29, 2008) (finding Fresno Police Department improper defendant because it is a subdivision of the City of Fresno); Brockmeier v. Solano Cnty. Sheriff's Dep't, No. Civ-S-05-2090 MCE EFB PS, 2006 WL 3760276, at *4 (E.D. Cal. Dec. 18, 2006) (dismissing Sheriff's Department as an improperly named defendant for purposes of Section 1983). Therefore, these departments and sub-units should be dismissed as improper defendants under Section 1983.
Moreover, Plaintiff has also named the County of Kern and the City of Bakersfield as defendants; naming sub-units of these municipalities as defendants is redundant. See Abeytia v. Fresno Police Dep't, No. 1:08-cv-01528 OWW GSA, 2009 WL 1674568, at *9 (E.D. Cal. June 12, 2009) ("Naming the [Fresno Police Department], which is a department of the City, as a defendant is redundant to naming the City of Fresno as a defendant."). Therefore, the sub-unit defendants should be dismissed.
D. Claims Alleging Fourth, Fifth, and Eighth Amendments Violations
Plaintiff claims that his rights under the Fourth, Fifth, and Eighth Amendment were violated. Plaintiff claims that:
[e]ach defendant violated Plaintiff's liberty interest under the Fourth, Fifth, Eighth and Fourteenth Amendments to be free of seizure of his person, to liberty, life, personal security, pursuit of happiness, bodily integrity and through acting with deliberate indifference to the known and obvious dangers and risks posed to Plaintiff which were affirmatively created by Defendants. (TAC at 18:3-12.) It is not clear how any of these constitutional amendments are implicated by the factual allegations in Plaintiff's complaint.
1. Fourth Amendment Violations
The Fourth Amendment pertains to governmental searches and seizures, and does not apply to actions of private citizens. U.S. CONST. AMEND. IV; United States v. Jacobsen, 466 U.S. 109, 113 (1984) ("This Court . . . consistently construed this protection as proscribing only governmental action; it is wholly inapplicable 'to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.'" (quoting Walter v. United States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting))). Plaintiff's only allegations of unreasonable seizure of his person relate to actions taken by the LOB Defendants who, as explained, infra, were acting as private citizens. Therefore, Plaintiff was not "seized" within the meaning of the Fourth Amendment.
2. Fifth Amendment Violations
The Fifth Amendment prohibits the federal government from depriving an individual of "life, liberty or property, without due process of law." U.S. CONST. AMEND. V. Because the Fifth Amendment relates to actions taken by the federal government, and Plaintiff has only alleged actions taken by state and local officials, Plaintiff's claims are more properly construed under the Due Process Clause of the Fourteenth Amendment rather than the Fifth Amendment. See Lee v. City of L.A., 250 F.3d 668, 687 (9th Cir. 2001) ("The Due Process Clause of the Fifth Amendment and the equal protection component thereof apply only to actions of the federal government -- not to those of state or local governments." (citing Schweiker v. Wilson, 450 U.S. 221, 227 (1981))). Plaintiff's claim brought pursuant to the Fifth Amendment is not viable.
3. Eighth Amendment Violations
The Eighth Amendment prohibits federal and state governments from imposing cruel and unusual punishments against individuals convicted of crimes. U.S. CONST. AMEND. VIII. Plaintiff alleges that throughout his "custody," he was "punished through sexual and physical abuses, rapes and exploitation," that the abuse occurred under threat of "repulsive retributions [sic] should Plaintiff and other youths offer the slightest form of resistance," and that "corporal punishments inflicted included but were not limited to bondage and group anal penetration, physically nude beatings with leather whips and other torturous devises/apparatus; forceful anal penetration with foreign objects of collosal magnitude and false imprisonment in an underground pool for extended durations." (TAC at 15:18-25.)
The allegations of the complaint indicate that the punishments imposed on Plaintiff were not by the federal or state government in response to a crime he had been convicted of committing, but instead were the actions of private individuals. Therefore, Plaintiff's complaint fails to support his ...