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Donald T. Collier v. City of Vallejo

October 13, 2011

DONALD T. COLLIER, PLAINTIFF,
v.
CITY OF VALLEJO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff, proceeding in this action pro se and in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302(21), pursuant to 28 U.S.C. § 636(b)(1). Before the court is plaintiff's amended complaint, filed pursuant to this court's screening order of August 26, 2011, as well as two motions for reassignment of this case to another judge.

AMENDED COMPLAINT

Plaintiff has not cured the defects pointed out by the previous order, and therefore his amended complaint must be dismissed.*fn1

As set forth in the previous order, plaintiff, an African-American, alleges racial discrimination by the City of Vallejo and Vallejo Transit Bus Company based on actions of its unidentified bus driver, and the bus driver's supervisor, Mr. Staward, and a Mr. Calhaun, through their actions toward plaintiff on two separate occasions while he was attempting to use the city's bus services. He claims they either refused to move the bus until he got off, or refused to accept his medi-cal card in support of a reduced bus fare. Plaintiff claims that these actions reflect racial bias. Plaintiff alleges violations of 42 U.S.C. § 1983.

Section 1983, which incorporates equal protection standards from the Fourteenth Amendment, requires a showing that defendant purposefully discriminated against him because of his race. Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). The complaint must allege that defendants acted with an intent or purpose to discriminate against plaintiff because he is a member of a protected class. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Plaintiff contends that defendants refused to accept his disabled fare, refused bus services to him, and detained the bus, and forced him off the bus, solely because he is African--American. Plaintiff has added the following allegation in his amended complaint:

Basically the message that she was delivering to Plaintiff, I'm a white racist bus driver and I don't care whether you pay your fare or not, if I don't want you to ride, I can have you[] re-moved off my bus for what-ever reason I want, this was the nature of her behavior, I was used as a example to other blacks that rode her bus. (FAC at 2.) He also alleges that defendants would not tolerate a black female bus driver holding up a bus at any time for "personal bias reasons." (Id.)

Even though plaintiff was informed in the previous order that he must provide any factual basis for his belief that defendants intended to discriminate against him, he has not done so in his amended complaint. As explained previously, the fact that plaintiff is African--American by itself is not sufficient to support his claim for violation of the Fourteenth Amendment. Plaintiff has again failed to allege facts which would give rise to an inference of discrimination. In other words, for example, the mere fact that plaintiff was questioned goes no distance in establishing a discrimination unless there are other facts (not conclusions) which could give rise to an inference of discrimination. These additional allegations in the amended complaint are mere conclusions and speculation by plaintiff.*fn2 They are not facts.

The previous order also advised plaintiff that he could not state a claim under § 1983 against the City of Vallejo unless he could allege an official policy or custom of discrimination by the City. Section 1983 provides in pertinent part that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." "Section 1983 does not create any substantive rights; rather it is the vehicle whereby plaintiffs can challenge actions by governmental officials. To prove a case under section 1983, the plaintiff must demonstrate that

(1) the action occurred "under color of state law" and (2) the action resulted in the deprivation of a constitutional right or federal statutory right. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908 [] (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662 [] (1986)." Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

Since there is no respondeat superior liability under § 1983, counties and municipalities may be sued under § 1983 only upon a showing that an official policy or custom caused the constitutional tort. See Mt Healthy City School Dist Board of Education v. Doyle, 429 U.S. 274, 280 (1977); Monell v. New York City Dep't of Social Services, 436 U.S. 658, 691 (1978). "A local government entity cannot be held liable under § 1983 unless the plaintiff alleges that the action inflicting injury flowed from either an explicitly adopted or a tacitly authorized [governmental] policy." Ortez v. Washington Cty., State of Or., 88 F.3d 804, 811 (9th Cir.1996) (citation and quotations omitted) (alteration in original) "[L]ocal governments, like any other § 1983 'person,' . . . may be sued for constitutional deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Monell, 436 U.S. at 690-91.

Thus, "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Monell, at 694. A local governmental entity may also "be liable if it had a policy or custom of failing to train its employees and that failure to train caused the constitutional violation. In particular . . . the inadequate training of police officers could be characterized as the cause of the constitutional tort if -- and only if -- the failure to train amounted to 'deliberate indifference' to the rights of persons with whom the police come into contact." Collins v. City of Harker Heights, 503 U.S. 115, 123-124, 112 S. Ct. 1061 (1992) (fn. omitted), citing in Canton v. Harris, 489 U.S. 378, 387, 388, 109 S.Ct. 1197 (1989).

The amended complaint does not allege that a policy existed to cause the alleged discrimination by the bus driver and other bus staff. Therefore, ...


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