The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
On May 27, 2011, plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 ("Complaint").
Congress has mandated that courts perform an initial screening of civil rights actions brought by prisoners with respect to prison conditions and/or that seek redress from a governmental entity or officer or employee of a governmental entity. The Court "shall" dismiss such an action if the Court concludes that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks relief against a defendant who is immune from suit. 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). In screening such a complaint, the Court must construe the allegations of the complaint liberally and must afford the plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Id.; Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
ALLEGATIONS OF THE COMPLAINT
Plaintiff is currently detained at the West Valley Detention Center ("WVDC") in San Bernardino County. (Complaint at 2.) Defendants are the San Bernardino County Sheriff's Department ("Sheriff's Department") and Sheriff's Deputy Smith. (Id. at 3.) Plaintiff asserts two claims for relief. In Claim One, he asserts claims against Smith and the Sheriff's Department for excessive force and sexual assault, in violation of the Due Process Clause. (Id. at 5.) In Claim Two, he asserts claims under the First, Fifth, and Fourteenth Amendments for violation of his right to petition the government for redress. (Id. at 5a.)
In his factual allegations in support of Claim One, plaintiff alleges that, on February 7, 2011, Smith sexually assaulted plaintiff by squeezing and yanking his penis. (Complaint at 5.) Smith also slammed plaintiff into the wall, choked and kicked him, twisted his fingers, and hit his head. (Id.) Plaintiff suffered physical, mental, and emotional injuries as a result of the assault. (Id.) He further contends that the Sheriff's Department has a policy, practice, or custom of employing "mentally ill, sexual deviant" deputies who are predisposed to use excessive force and sexually assault inmates. (Id.)
In his factual allegations in support of Claim Two, plaintiff alleges that the Sheriff's Department has a policy, custom, or practice of denying access to the law library to research family law issues. (Complaint at 5a.) Thus, plaintiff has been unable to conduct research regarding his appeal of a juvenile court decision terminating his parental rights. (Id.) This policy has caused plaintiff physical, mental, and emotional pain, such as migraines, weight loss, stress, fatigue, and depression. (Id.)
Plaintiff seeks compensatory and punitive damages. (Complaint at 6.)
I. PLAINTIFF'S EXCESSIVE FORCE CLAIM AGAINST DEPUTY SMITH WITHSTAND SCREENING.
At this early stage of the action, the Court finds that plaintiff's excessive force claim against defendant Smith withstands screening.*fn1 Because plaintiff is held at WVDC as a pretrial detainee, his excessive force claim arises under the Due Process Clause of the Fourteenth Amendment.*fn2
II. PLAINTIFF FAILS TO STATE AN EXCESSIVE FORCE CLAIM AGAINST THE SHERIFF'S DEPARTMENT.
Plaintiff asserts his excessive force claim against the Sheriff's Department as well as Smith. (Complaint at 5.)
To allege a Section 1983 claim against an individual defendant, a plaintiff need only allege a constitutional deprivation inflicted on him by that defendant. To allege a Section 1983 claim against a local governmental entity, such as the Sheriff's Department, more is needed. Plaintiff must allege a constitutional deprivation and a policy, custom, or practice of the municipality that was the "moving force" of the constitutional deprivation. Monell v. Department of Social Services, 436 U.S. 658, 694-95, 98 S. Ct. 2018, 2037-38 (1978); ...