United States District Court, N.D. California, San Jose Division
BRANDON L. BURNS, Plaintiff,
ARAMARK, et al., Defendants.
ORDER OF DISMISSAL WITH PREJUDICE
H. KOH JUDGE.
a California state pretrial detainee proceeding pro
se, filed a civil rights complaint under 42 U.S.C.
§ 1983. Plaintiffs complaint was screened and dismissed
by the Court on November 14, 2018 ("DWLTA Order").
Dkt. No. 5. Plaintiff was given 28 days to amend his
allegations. Id. at 2.
plaintiff failed to file an amended complaint within the
deadline, the Court dismissed the case. Dkt. No. 9. Plaintiff
subsequently moved to reopen and filed an amended complaint
("FAC"). Dkt Nos. 13, 14.
March 15, 2019, the Court granted plaintiffs motion to
reopen, and stated that the Court would review the FAC
pursuant to 28 U.S.C. § 1915A. Dkt. No. 15.
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 28
U.S.C. § 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.
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 violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988).
challenges the kosher meal program at Santa Rita Jail in
Alameda County, which appears to be operated by an entity
known as Aramark. See FAC & Exs. Specifically,
plaintiff alleges that "through low standards of
preparation," "kitchen employees are trying to
deter the kosher/halal population from dining." FAC at
1. Plaintiff alleges that in furtherance of this effort, the
kitchen employees are "serving non-kosher/halal foods
and [altogether] missing foods." Id.
DWLTA Order, the Court gave plaintiff specific instructions
on what he must allege in any amended complaint in order to
state a claim against Santa Rita Jail or Aramark:
Plaintiff has named as a defendant Santa Rita Jail. 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). 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 he possessed
a constitutional right of which he was deprived; (2) that the
municipality had a policy; (3) that this policy amounts to
deliberate indifference to the plaintiffs constitutional
rights; and (4) that the policy is the moving force behind
the constitutional violation." Oviatt By and Through
Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)
(quoting City of Canton v. Harris, 489 U.S. 378, 389
(1989) (internal quotation marks omitted). Plaintiff has not
alleged that the Santa Rita Jail has a policy that amounts to
deliberate indifference to plaintiffs constitutional rights
or that such policy is the moving force behind a
constitutional violation. The claim against Santa Rita Jail
is DISMISSED with leave to amend if plaintiff believes that
he can state a cognizable claim for relief against it.
Order at 4. The requirement that a plaintiff identify a
policy also applies to private entities working with the
municipality under color of state law. See Tsao v. Desert
Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012)
("To make out a claim against Desert Palace under
Monell, Tsao must show that (1) Desert Palace acted
under color of state law, and (2) if a constitutional
violation occurred, the violation was caused by an official
policy or custom of Desert Palace, ").
does not follow the Court's instructions. Plaintiff did
not identify any policy, instead stating that the
"kitchen employees" at the jail are trying to deter
inmates from requesting kosher and halal meals by following
"low standards of preparation" for kosher and halal
meals. FAC at 1. Plaintiff does not identify any policy,
either of Santa Rita Jail or of Aramark, that the kitchen
employees are following in so acting, and appears to believe
that Santa Rita Jail and Aramark should be held liable
because of the kitchen employees' conduct. See
Id. However, "a municipality cannot be held liable
solely because it employs a tortfeasor-or, in other
words, a municipality cannot be held liable under § 1983
on a respondeat superior theory." Monell v.
Dep't of Soc, Servs. of City of New York, 436 ...