Henderson v. Burrell

          ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION

          RONALD M. WHYTE UNITED STATES DISTRICT JUDGE

         Plaintiff, a California state pretrial detainee, proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma pauperis in a separate order. For the reasons stated below, the court dismisses two defendants and serves the remaining defendant.

         DISCUSSION

         A. Standard of Review

         A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

         B. Plaintiff’s Claims

         In the complaint, plaintiff alleges that he was at the scene when defendant Officer Ross Burrell of the Emeryville Police Department had stopped someone named Terry Harris. Defendant requested identification from plaintiff and Harris. Plaintiff complied. Defendant then asked plaintiff to put his hands behind his back. Defendant removed all of plaintiff’s jewelry and checked plaintiff’s pockets. Defendant proceeded to unzip plaintiff’s pants and take off plaintiff’s jackets, and throw them “somewhere.” Plaintiff asked defendant why he was taking plaintiff’s clothes when plaintiff was not under arrest. Defendant responded by putting plaintiff’s hands tightly into handcuffs, injuring plaintiff’s wrists. Plaintiff alleges that Harris had been in possession of a stolen rain coat, but Harris was not searched. Eventually, plaintiff had all of his upper body clothing removed, and defendant forced plaintiff to lie on the ground with his pants to his ankles. Plaintiff claims that defendant then fondled plaintiff’s private parts, and penetrated plaintiff’s rear with some unknown object. Liberally construed, plaintiff has stated a cognizable claim that Officer Burrell violated plaintiff’s Fourth Amendment rights against unreasonable searches and seizures.

         Plaintiff also names as defendants Supervisor Richard Lee and the Emeryville Police Department. However, plaintiff proffers no facts linking Supervisor Lee to any allegation. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). A supervisor may be liable under section 1983 upon a showing of (1) personal involvement in the constitutional deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). Plaintiff has not provided any facts sufficient to state a cognizable claim against Supervisor Lee. Accordingly, Supervisor Lee is dismissed with leave to amend if plaintiff believes in good faith that he can state a cognizable claim against him.

         Further, although local governments are “persons” subject to liability under 42 U.S.C. § 1983 where official policy or custom causes a constitutional tort, see Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978), in order to impose municipal liability under Section 1983 for a violation of constitutional rights resulting from governmental inaction or omission, 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; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional rights; and (4) that the policy is the moving force behind the constitutional violation. See Plumeau v. School Dist. #40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). Plaintiff has not done so. Accordingly, the Emeryville Police Department is dismissed with leave to amend if plaintiff believes in good faith that he can state a cognizable claim against it.

         CONCLUSION

         For the foregoing reasons, the court hereby orders as follows:

         1. The clerk of the court shall mail a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the Notice of Removal and all attachments thereto, and a copy of this order to Officer Ross Burrell #364 at the Emeryville Police Department.

         The clerk of the court shall also mail a courtesy copy of the complaint and a copy of this order to the Alameda County Counsel at 1221 Oak Street, Suite 450, Oakland CA 94612. ...