United States District Court, E.D. California
EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a federal prisoner proceeding without counsel in this civil rights action concerning events that occurred while he was housed at the Sacramento County Main Jail ("SCMJ"). This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4). Plaintiff's prior two amended complaints have been dismissed with leave to amend under the court's screening obligation. In response to the latest screening order, plaintiff filed a sixth amended complaint (ECF No. 33) and then, a week later, filed what he styled as a "supplemental complaint, " citing Federal Rule of Civil Procedure 15(d) (ECF No. 36).
The filing of two complaints following the prior dismissal results in some confusion on the docket. Plaintiff's "supplemental complaint" is a photocopy of his sixth amended complaint with some additional claims added in extra inserted pages. These additional claims do not concern events arising after the filing of the sixth amended complaint, and therefore the complaint is not truly a "supplemental" one under Rule 15(d). Nevertheless, it contains the entirety of the sixth amended complaint and the claims plaintiff apparently intended to include and forgot, but submitted one week later. Because it is apparent that plaintiff intends to assert all claims in the latter document, the court will treat the entirety of docket number 36, the so-called supplemental complaint, as the true sixth amended complaint. ECF No. 36 will serve as plaintiff's currently-operative pleading in this case. The earlier filed document (ECF No. 33) that was labelled as the sixth amended complaint will be disregarded.
I. Screening Pursuant to 28 U.S.C. § 1915A
A. Screening Requirements and Standards
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted, " or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).
A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) "requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). While the complaint must comply with the "short and plaint statement" requirements of Rule 8, its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
To avoid dismissal for failure to state a claim a complaint must contain more than "naked assertions, " "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-557. In other words, "[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. at 1949.
Furthermore, a claim upon which the court can grant relief must have facial plausibility. 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." Iqbal, 129 S.Ct. at 1949. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Before assessing the claims currently asserted by plaintiff, the court notes that plaintiff has included the Sacramento County Sheriff's Department as a defendant in this action (along with the county and Sheriff Scott Jones). The Sheriff's Department, which is a local law enforcement department of Sacramento County, is not a "person" subject to suit under § 1983. Daniels v. Medical Servs. Div., No. 15cv0030 BEN (BLM), 2015 U.S. Dist. LEXIS 20111, at *3-4 (S.D. Cal. Feb. 18, 2015). Therefore, the court will dismiss the department from the action.
Claim 1: "Safety Suit" Policy. Plaintiff alleges that, after he attempted suicide by hanging, he was placed in a "safety suit" for 30 days without a towel or underwear. ECF No. 36 at 3, 6. According to plaintiff, this was not only embarrassing, but an inadequate response to his suicide attempt, because he was still housed with the general population and was able to access "unsafe" materials. Id. at 3. Plaintiff claims that another inmate in a safety suit hung himself in front of plaintiff's cell. Id. Plaintiff alleges that he grieved the policy to the director of psychiatric services at SCMJ, defendant Solokalov, but Solokalov denied the grievance. Id. at 4. Plaintiff alleges that defendants Rider, Massa, Andris, and Steed also reviewed and denied the grievance. Id.
For the limited purposes of § 1915A screening, the court finds that plaintiff's "safety suit" allegations suffice to state a cognizable Eighth Amendment claim against Sacramento County and defendant Jones. A local government entity is a "person" subject to liability under 42 U.S.C. § 1983 where the entity's official policy or custom causes a constitutional tort, see Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978); however, a city or county may not be held vicariously liable for the unconstitutional acts of its employees under the theory of respondeat superior, see Board of Cty. Comm'rs. of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691. To impose municipal liability under § 1983 for a violation of constitutional rights, a plaintiff must show: (1) that the plaintiff possessed a constitutional right of which he or she was deprived; (2) that the municipality had a policy (or deliberately failed to have a necessary policy); (3) that this policy (or absence of policy) amounts to deliberate indifference to the plaintiff's constitutional rights; and (4) that the policy (or absence thereof) is the moving force behind the constitutional violation. Gibson v. County of Washoe, 290 F.3d 1175, 1193-95 (9th Cir. 2002); Plumeau v. School Dist. #40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). Plaintiff has adequately pleaded that the county, through its sheriff defendant Jones, operated SCMJ under a policy of placing suicidal inmates in safety suits and that the policy caused jail staff to place him in a safety suit, which was a deliberately indifferent response to his suicidality.
Plaintiff has not stated a cognizable Eighth Amendment claim against defendants Solokalov, Rider, Massa, Andris, and Steed regarding the "safety suit" policy. It is currently an open question in the Ninth Circuit whether an appeals reviewer who learns of a constitutional violation through the appeals process and fails to intervene is personally involved in the violation such that he or she may be subjected to liability under § 1983. Nicholson v. Finander, No. CV 12-9993-FMO (JEM), 2014 U.S. Dist. LEXIS 50716, at *21-22 (C.D. Cal. Feb. 11, 2014); Pogue v. Igbinosa, No. 1:07-cv-01577-GMS, 2012 U.S. Dist. LEXIS 23150, at *22-26 (E.D. Cal. Feb. 23, 2012). Some courts have concluded that an appeals reviewer may be liable if the reviewer had the authority and opportunity to prevent or curtail the violation but failed to do so. Herrera v. Hall, No. 1:08-cv-01882-LJO-SKO PC, 2010 U.S. Dist. LEXIS 70611, at *13 (E.D. Cal. July 14, 2010). The court will assume, for screening purposes that defendant Solokalov, as the director of psychiatric services at the jail, had the authority to decline to enforce the safety suit policy. However, plaintiff states that he did not present his grievance about the policy until "after the fact"; that is, when he was no longer in the safety suit and thus Solokalov, Rider, Massa, Andris, and Steed had no opportunity to prevent or curtail the alleged Eighth Amendment violation. ECF ...