Henderson v. Sing

          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 orders service on Deputy Hamilton and dismisses the remaining defendants.

         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 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.

         Plaintiff 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 constitutional violation.

         Further, 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.

         Accordingly, 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.

         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 complaint and all attachments thereto, and ...