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Jacome v. Vlahakis

United States District Court, S.D. California

September 9, 2019

DIMITRIS VLAHAKIS, et al, Defendants.



         Before the Court is Defendant San Diego County Sheriff's Deputy Dimitris Vlahakis (“Deputy Vlahakis”) and San Diego County Sheriff's Deputies Ryan Smith, Kyle McGarvey, Matthew Seitz, James Parent, Habib Choufani, Joshua Pirri, and Joshua Linthicum (“Deputy Defendants”)'s March 25, 2019 motion to dismiss (ECF No. 54) pro se Plaintiff Alexander Jacome's Fourth Amended Complaint (“FAC”). (ECF No. 52.)

         Pursuant to Civil Local Rule 7.1(d)(1), the Court finds the motion suitable for adjudication without oral argument. For the reasons explained below, the Defendants' motion to dismiss is denied.


         During the course of litigation, Plaintiff has filed and the Court has ruled on the sufficiency of a number of Plaintiff's complaints. On August 6, 2018, the Court granted in part and denied in part a motion to dismiss Plaintiff's second amended complaint (“SAC”), holding, inter alia, that Plaintiff alleged a plausible excessive force claim against Deputy Vlahakis. (ECF No. 40, at 7.) The Court granted dismissal with leave to amend on four other § 1983 and state law claims. (Id. at 20.)

         Thereafter, on September 4, 2018, Plaintiff filed a Third Amended Complaint (“TAC”) which re-pleaded the five claims in his second amended complaint. (ECF No. 41.) Defendants again filed a motion to dismiss, but this time, in light of the Court's previous findings as to excessive force, did not move to dismiss as to the excessive force claim. (ECF No. 42-1, at 2.) On December 3, 2018, the Court issued an order granting defendants' motion to dismiss Plaintiff's Third Amended Complaint. Because the Defendants did not challenge the excessive force claim asserted against Deputy Vlahakis, the Court observed that “the only issues in contention are the [other] four claims in the FAC.” (ECF No. 47, at 2.) The Court's order dismissed two of those claims with prejudice and granted Plaintiff leave to amend and fortify his deliberate indifference and conditions of confinement claim against the Deputy Defendants. (Id. at 16.)

         Plaintiff timely filed his FAC-the operative complaint-thereafter, asserting the following two § 1983 claims against the Deputy Defendants: (1) deliberate indifference to medical need[1] and (2) conditions of confinement. (ECF No. 52.) Notably, the FAC did not contain any allegations as to the excessive force claim against Deputy Vlahakis. Plaintiff subsequently failed to file and serve an opposition to Defendants' motion to dismiss due by June 14, 2019. (See ECF 58.)

         On June 21, 2019, Defendants filed a notice of lack of opposition to their motion to dismiss, by which Defendants requested that the Court dismiss Plaintiff's FAC with prejudice for failure to oppose. (ECF No. 60); see generally Civ. L.R. 7.1.f.3.c. (stating that failure to follow rules for opposing motions “may constitute a consent to the granting of a motion . . . by the court”).

         The Court, however, declines to grant Defendants' motion because it appears that Plaintiff's failure to file stems directly from his proceeding pro se in confinement. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc) (stating that pro se litigants “must be ensured meaningful access to the courts”). On June 12, 2019, Plaintiff filed a notice of change of address with the Court advising that he had become incarcerated at San Diego Jail - George Bailey Detention Facility. (ECF No. 59.) On August 22, 2019, approximately a month after the deadline on his opposition brief had passed, Plaintiff sent a letter to the Court entitled “motion to proceed to excessive force.” (ECF No. 63.) Plaintiff advised that he had not filed an opposition because he has been in custody at the San Diego County Jail, and that his detention there had “limited his ability to properly act on this action, ” because he had been “wrongfully denied” access to the jail facility's law library. (Id. at 63, at 1.) Plaintiff states that he would be willing to “accept” dismissal on the deliberate indifference and conditions of confinement claims if he would be permitted to proceed on the excessive force claim against Deputy Vlahakis.

         The Court is not prepared to permit Plaintiff's proposed course of action for a number of reasons. At the outset, the Court notes that Plaintiff's indicates that the reason for his failure to file an opposition is a lack of access to the law library in jail. To the extent that Plaintiff was precluded from litigating his case because of a denial of access to the law library or other such resources, the Court finds good cause to overlook Plaintiff's failure to file an opposition brief.

         To the extent that Plaintiff felt it necessary to barter his deliberate indifference and conditions of confinements claims to preserve his excessive force claim, the request must also be denied because (1) his excessive force claim was not stated in his FAC and Plaintiff cannot proceed on the basis thereon, and because (2) his deliberate indifference and conditions of confinements claim are sufficiently alleged to survive the motion to dismiss.

         To address the first point: Plaintiff has conditioned his consent to dismiss the deliberate indifference and conditions of confinement claims on his belief that he may proceed on his excessive force claim against Deputy Vlahakis. But Plaintiff's proposal is based on a mistaken belief that he has a current, live excessive force claim. Although the excessive force claim survived Defendants' motion to dismiss the second amended complaint, Plaintiff did not re-plead that claim in his FAC. See Civ. L.R. 15.1 (requiring that “[e]very pleading to which amendment is permitted as a matter of right or has been allowed by court order, must be complete in itself without reference to the superseded pleading.”). By failing to re-plead the excessive force claim in his FAC, Plaintiff has left it out of his operative pleading and cannot litigate on that basis. See Valadez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011) (observing that an “amended complaint supersedes the original, the latter being treated thereafter as non-existent.” (citations omitted)); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (noting that once a plaintiff amends the complaint, the previous pleading no longer serves any function in the case). Thus, because the FAC does not contain an excessive force claim against Deputy Vlahakis, there is no viable excessive force claim upon which Plaintiff might proceed at this juncture.[2]

         To address the second point, the Court finds, for reasons more fully articulated infra, that Plaintiff's deliberate indifference and conditions of confinement claims sufficiently alleged to survive Defendants' motion to dismiss. Because Plaintiff's failure to oppose their dismissal is excused, and because both claims are plausibly alleged, the Court will not permit Plaintiff to forego his two FAC claims. The Court will instead address them on their merits.


         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To survive a motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). While a plaintiff need not give “detailed factual allegations, ” one must plead sufficient facts that, if true, “raise a right to relief above the speculative level.” Id. at 545. “[F]or a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Twombly, 550 U.S. at 557).

         In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions, however, need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Moreover, a court “will dismiss any claim that, even when construed in the light most ...

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