United States District Court, N.D. California
ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE
DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION
M. WHYTE UNITED STATES DISTRICT JUDGE
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
Standard of Review
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).
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).
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.
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.
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
foregoing reasons, the court hereby orders as follows:
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.
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. ...