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Kocontes v. Orange County Sheriff's Department

United States District Court, C.D. California, Southern Division

October 29, 2019

LONNIE L. KOCONTES, Plaintiff,
v.
ORANGE COUNTY SHERIFF'S DEPARTMENT, et al., Defendants.

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

          PAUL L ABRAMS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, an inmate at the Theo Lacy Jail, Orange, California (the “Jail”), filed a pro se civil rights action herein pursuant to 42 U.S.C. § 1983 on October 16, 2019. (ECF No. 1). Plaintiff also filed a request to proceed without prepayment of the filing fee, which was subsequently granted. (ECF Nos. 2, 4). The Complaint names as defendants the Orange County Sheriff's Department (“OCSD”); Global Tel Link Corp. (“GTL”), which is identified as contracting with the OCSD to provide the Jail's “inmate phone system”; and ten “doe” defendants, who are not identified in any way. (ECF No. 1 at 3). Plaintiff lists as incident dates March 2013 through September 2019, and 2015 through August 2019. (Id. at 3). Plaintiff seeks monetary damages and injunctive relief including destruction of recordings of telephone calls, reclassification of his status, “legal mail” tracking, and expungement of disciplinary records. (Id. at 19).

         In accordance with the mandate of the Prison Litigation Reform Act of 1995 (“PLRA”), the Court has screened the Complaint prior to ordering service for the purpose of determining whether the action is frivolous or malicious; or fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A, 1915(e)(2); 42 U.S.C. § 1997e.

         The Court's screening of the pleading under the foregoing statutes is governed by the following standards. A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts alleged under a cognizable legal theory. See, e.g., Kwan v. SanMedica Int'l, 854 F.3d 1088, 1093 (9th Cir. 2017); see also Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“In determining whether a complaint should be dismissed for failure to state a claim under the [PLRA], we apply the familiar standard of Fed.R.Civ.P. 12(b)(6).”). Further, with respect to a plaintiff's pleading burden, the Supreme Court has held that: “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. … Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted, alteration in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (To avoid dismissal for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (internal citation omitted)).

         Since plaintiff is appearing pro se, the Court must construe the allegations of the pleading liberally and must afford plaintiff the benefit of any doubt. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Further, it is particularly important in a civil rights case filed by a pro se litigant to attempt to ascertain plaintiff's claims to protect his or her access to the courts. See Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013) (the rule of liberal construction “relieves pro se litigants from the strict application of procedural rules”). In addition, the Court may not dismiss a claim because a pro se litigant has set forth an incomplete “legal theory supporting the claim” alleged. See Johnson v. City of Shelby, 574 U.S. 10, 11, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014). Finally, in determining whether a complaint states a “claim to relief that is plausible on its face, ” factual allegations are accepted as true and construed in the light most favorable to plaintiff. See, e.g., Soltysik v. Padilla, 910 F.3d 438, 444 (9th Cir. 2018). However, the “tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678; see also Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (“a court discounts conclusory statements, which are not entitled to the presumption of truth, before determining whether a claim is plausible”). Nor is the Court “bound to accept as true a legal conclusion couched as a factual allegation or an unadorned, the-defendant-unlawfully-harmed-me accusation.” Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018) (internal quotation marks and citations omitted).

         After careful review of the Complaint under the foregoing standards, the Court finds that plaintiff's allegations fail to state a short and plain statement of any claim and appear insufficient to state a claim against any named defendant. Accordingly, the Complaint is dismissed with leave to amend. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (a “pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment” (internal quotation marks omitted)).

         If plaintiff desires to pursue this action, he is ORDERED to file a First Amended Complaint no later than November 19, 2019, remedying the deficiencies discussed below. Further, plaintiff is admonished that, if he fails to timely file a First Amended Complaint or fails to remedy the deficiencies of this pleading as discussed herein, the Court will recommend that the action be dismissed without further leave to amend and with prejudice.[1]

         A. FEDERAL RULE OF CIVIL PROCEDURE 8 (“RULE 8”)

         Plaintiff's Complaint fails to comply with Rule 8(a) and Rule 8(d). Rule 8(a) states:

A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

(Emphasis added). Additionally, Rule 8(d)(1) provides: “Each allegation must be simple, concise, and direct. No. technical form is required.” (Emphasis added). Although the Court must construe a pro se plaintiff's pleadings liberally, a plaintiff nonetheless must allege a minimum factual and legal basis for each claim that is sufficient to give each defendant fair notice of what plaintiff's claims are and the grounds upon which they rest. See, e.g., Brazil v. United States Dep't of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (complaint must give defendants “fair notice of the claims against them”). If a plaintiff fails to clearly and concisely set forth factual allegations sufficient to provide defendants with notice of which defendant is being sued on which theory and what relief is being sought against them, the complaint fails to comply with Rule 8. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981). A claim has “substantive plausibility” if a plaintiff alleges “simply, concisely, and directly [the] events” that entitle him to damages. Johnson, 135 S.Ct. at 347. Moreover, failure to comply with Rule 8 constitutes an independent basis for dismissal of a complaint that applies even if the claims in a complaint are not found to be wholly without merit. See McHenry, 84 F.3d at 1179.

         Here, it is not clear what claims plaintiff is purporting to raise against which defendant. Plaintiff's Complaint appears to allege seven “claims, ” the last three of which arise under state law. (ECF No. 1 at 16 -18). Additionally, plaintiff references violations of state law in other claims that appear to be raising federal civil rights violations. For example, in his Claim 1, plaintiff alleges that unspecified defendants violated Cal. Penal Code § 637.2 and Cal. Civil Code § 52.1. (Id. at 5). In his Claim 3, plaintiff alleges that he was improperly classified by unnamed jail officials in violation of OCSD's policies and state regulations. (Id. at 9-10). In his Claim 4, plaintiff alleges that the “Jail's disciplinary rules” are vague and arbitrarily applied, but it is not clear if plaintiff is purporting to allege that the rules are unconstitutional, or if some defendants improperly applied the rules under state law. (Id. at 13). To the extent that plaintiff is purporting to allege that any named defendant violated a prison regulation or state law, such allegations fail to give rise to a federal civil rights claim and must be alleged in a separate claim arising under state law. See, e.g., Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (the failure to follow prison regulations or policies is not a federal constitutional violation); Ove v. Gwinn, 264 F.3d 817, 823 (9th Cir. 2001) (an alleged violation of California law fails to state a claim under § 1983).

         In order to state a federal civil rights claim against a particular defendant, plaintiff must allege that a specific defendant, while acting under color of state law, deprived him of a right guaranteed under the Constitution or a federal statute. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). “A person deprives another ‘of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains].'” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (emphasis and alteration in original)). Here, plaintiff generally references “defendants” in his claims (ECF No. 1 at 5-6, 9), and he fails to set forth a short and plain statement of any claim against a specific defendant alleging that a specific defendant took an affirmative action, participated in another's affirmative action, or failed to perform an action that he or she was legally required to do that caused each of the constitutional violations alleged in the Complaint.

         Further, plaintiff names as a defendant GTL, which is a private corporation. (Id. at 3). Plaintiff's only factual allegations against this defendant are that it improperly implemented a list of telephone numbers, maintained an incomplete list of telephone numbers, and “knew” that “it was recording inmates' calls to attorneys” (id. at 6, 18), but plaintiff does not allege that any specific defendant affiliated with GTL took an intentional action, participated in the actions of another, or failed to take an action that he or she was legally obligated to do that caused a constitutional violation. To the extent that any GTL official was negligent or reckless in implementing the alleged list, such actions fail to state a federal civil rights claim. In determining the plausibility of plaintiff's claims, the Court discounts unsupported and conclusory allegations such as that GTL “violated plaintiff's Sixth Amendment rights” in “the operation of the jail's inmate phone system” (id. at 3), or that the “OCSD and GTL have engaged in a long-term, ongoing pattern or practice of intentionally recording calls by inmates to attorneys in high-profile cases” (id. at 17). See, e.g., Chavez, 683 F.3d at 1108; Keates, 883 F.3d at 1243. Further, to the extent that plaintiff is purporting to state a federal civil rights claim against GTL, plaintiff may raise a claim pursuant to § 1983 against a private party for an alleged violation of a constitutional right in only very limited circumstances. “Section 1983 liability extends to a private party where the private party engaged in state action under color of law and thereby deprived a plaintiff of some right, privilege, or immunity protected by the Constitution or the laws of the United States.” Brunette v. Humane Society of Ventura Cty., 294 F.3d 1205, 1209 (9th Cir. 2002). In addition, the “under-color-of-state-law” requirement excludes from the reach of § 1983 all “merely private conduct, no matter how discriminatory or wrongful.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (internal quotation marks omitted). Thus, the ultimate issue in determining whether a person is subject to suit under § 1983 is whether the alleged infringement of federal rights is “fairly attributable” to the government. Rendell-Baker v. Kohn, 457 U.S. 830, ...


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