Burns v. Aramark

          ORDER OF DISMISSAL WITH PREJUDICE

          LUCY H. KOH JUDGE.

         Plaintiff, 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.

         When 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.

         On 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.

         DISCUSSION

         A. Legal Standard

         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 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. 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 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

         B. Legal Claim

         Plaintiff 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.

         In the 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.

         DWLTA 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, ").

         The FAC 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 ...