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 orders service on Deputy Hamilton and dismisses the
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 in February 2016, he was
housed at the Santa Rita Jail. While at the jail, plaintiff
got sick and was placed on antibiotics and prednisone for
asthma. On February 11, 2016, plaintiff filed an
administrative grievance complaining about being forced to be
in the freezing cold while he was wheezing and coughing.
Plaintiff states that, as a result of the grievance, Deputy
Hamilton instructed jail staff not to answer
plaintiff’s call button. Plaintiff describes needing
help because of wheezing and shortness of breath, but no one
assisted him. Plaintiff also declares that Deputy Hamilton
“tossed” plaintiff’s cell during a search
and then threatened plaintiff that if plaintiff submitted an
administrative grievance naming Deputy Hamilton, plaintiff
would get the “ass whooping of [his] life.”
Liberally construed, plaintiff has stated a cognizable claim
of retaliation against Deputy Hamilton.
has also named as defendants Deputy Sing, Alameda County
Sheriff’s Department, and Corizon Health Services.
However, plaintiff proffers no facts linking Deputy Sing to
any constitutional violation. At most, plaintiff states that
he informed Deputy Sing that he needed medical help, but
plaintiff did not receive medical help until the nurse came
to aid him. Instead, Deputy Sing asked plaintiff if plaintiff
needed to have his blood sugar checked. About 45 minutes
after the nurse checked plaintiff, Deputy Sing came back to
plaintiff and directed plaintiff to cuff up. Even liberally
construed, plaintiff has not set forth sufficient, plausible
facts to state a cognizable claim of any constitutional
violation against Deputy Sing. Similarly, plaintiff proffers
no facts linking Corizon Health Services to any
although local governments are “persons” subject
to liability under 42 U.S.C. Section 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.
Deputy Sing, Corizon Health Services, and the Alameda County
Sheriff’s Department are dismissed with leave to amend
if plaintiff believes in good faith that he can state a
cognizable claim against them.
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 ...