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Sergio Diaz v. L.A. County Sheriff's Dept.

April 15, 2011

SERGIO DIAZ, PLAINTIFF,
v.
L.A. COUNTY SHERIFF'S DEPT., ET AL., DEFENDANTS.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

ORDER RE DISMISSAL WITH LEAVE TO AMEND

Pro se prisoner Sergio Diaz (hereinafter referred to as "Plaintiff") filed a Civil Rights Complaint pursuant to 42 U.S.C. § 1983 on March 11, 2011, pursuant to the Court's Order re Leave to File Action without Prepayment of Full Filing Fee. Plaintiff has named as Defendants Captain Victor Trujillo, Sheriff Leroy Baca, Mayor Antonio Villaraigosa, William T. Fujioka and Unknown Deputies, Sergeants, and Lieutenants in their individual capacities.

STATEMENT OF FACTS

Plaintiff alleges on May 26, 2009 at the North County Correctional Facility he was punched, kicked and tazed during a contraband watch between 3:00 p.m. and 12:00 a.m. (Complaint at 5.) Plaintiff alleges that unknown deputies left him naked in his cell while other inmates could watch, which was humiliating to him. Plaintiff alleges that unknown deputies watched as Plaintiff was beaten and tazed. Plaintiff was left in the tank for an hour without any medical care. Plaintiff was sent back to his dorm among dirty walls and bunks which can contain "gangrene" or "staphylocolus" infections. Plaintiff alleges he has a documented scar on his back from the tazing incident. Plaintiff alleges the deputies did not document this incident and told Plaintiff to keep his mouth shut or they would taze him again. (Complaint at 5.)

Plaintiff alleges that Defendants Captain Victor Trujillo and other unknown lieutenants and sergeants violated his Fourteenth Amendment rights by failing to train and supervise the deputies, lieutenants and sergeants. Plaintiff alleges that unknown deputies violated his Fourth and Fourteenth Amendment rights by forcibly exposing Plaintiff's nude body to strangers, therefore violating Plaintiff's right to due process and privacy. Plaintiff alleges that his Fourth, Eighth and Fourteenth Amendment rights were violated by the Defendants use of excessive force. (Complaint at 5.)

Plaintiff alleges that Defendant Sheriff Leroy Baca violated his Fourth and Fourteenth Amendment rights by failing to train and supervise his captain, lieutenants and sergeants and deputies "whom abused a policy, used excessive force, failed to document an incident properly and failed to provide adequate health care." (Complaint at 7.) Plaintiff alleges that Defendant Antonio Villaraigosa violated his Fourteenth Amendment rights by failing to supervise the City of Los Angeles. (Id.) Plaintiff alleges that Defendant William T.

Fujioka violated his Fourteenth Amendment rights by failing to supervise the County of Los Angeles. (Id.)

Plaintiff seeks compensatory and punitive damages against Defendants. (Complaint at 8.)

STANDARD OF REVIEW

Because Plaintiff is seeking to proceed in forma pauperis, the Court shall review such a complaint "as soon as practicable after docketing." Pursuant to 28 U.S.C. § 1915(e)(2), the District Court is required to dismiss a complaint if the Court finds that the complaint

(1) is legally frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary relief from a defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B) (re: all in forma pauperis complaints).

A complaint may also be dismissed for lack of subject matter jurisdiction, pursuant to F.R.Civ.P. 12(b)(1). Neitzke v. Williams, 490 U.S. 319, 327 n.6, 109 S.Ct. 1827 (1989)(unanimous decision)(patently insubstantial complaint may be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction. When considering a dismissal, a Court must accept as true all allegations and material facts and must construe those facts in a light most favorable to the plaintiff. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). However, a "court [is not] required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Nor is a Court "bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (2007)). "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." Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(citing Twombly, 550 U.S. at 556.) "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant acted unlawfully." (Id.) Although a complaint need not include "'detailed factual allegations,' ... [a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of the cause of action will not do.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). The Complaint must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" (Id. at 1950 [quoting Fed.R.Civ.P. 8(a)(2) (internal brackets omitted).

In civil rights cases in which the Plaintiff appears pro se, the pleadings must be construed liberally, so as to afford the plaintiff the benefit of any doubt as to the potential validity of the claims asserted. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). If, despite such liberal construction, the Court finds that the complaint should be dismissed for failure to state a claim, the Court has the discretion to dismiss the complaint with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). A pro se litigant should be given leave to amend, unless it is clear that the deficiencies of the complaint ...


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