1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES DION PALMER, Case No. 23-cv-06464-PCP

8 Plaintiff, ORDER DISMISSING COMPLAINT

WITH LEAVE TO AMEND, AND

9 v. GRANTING MOTIONS TO PROCEED

IN FORMA PAUPERIS

10 GOVERNOR OF CALIFORNIA, et al., 11 Defendants. Re: Dkt. Nos. 2, 6

12 13 James Palmer, formerly an inmate at the San Francisco County Jail in San Francisco, 14 California, filed this pro se civil rights action under 42 U.S.C. § 1983. The Complaint is before the 15 Court for review under 28 U.S.C. § 1915A. The Complaint is dismissed with leave to amend. 16 I. Background 17 Mr. Palmer states that he “suffer[s] from schizophrenia.” Compl. at 1. He states that he was 18 given “no mental health treatment or care” during his time at the San Francisco County Jail. Id. at 19 2. He also states that his meals had “no or little” of certain vitamins and minerals; that the water 20 temperature in the shower was unsatisfactory; and that the San Francisco County Jail is a “poor 21 prison.” Id. He also mentions “illegal detainment,” “illegal extradition,” and a “due process 22 violation,” but these appear to have occurred in British Columbia and the State of Washington. See 23 id. at 3. 24 In the section of the Complaint seeking relief, Mr. Palmer asks for $11 million in damages, 25 a “healthy nutritious diet,” a “blood test for tuberculosis,” a “DNA test,” and an “acknowledgment 26 of wrongdoings.” Id. at 3. He also writes “9/11 Terrorist Suspect – Biochemical Weapons of Mass 27 Destruction,” lists several viruses, mentions the 1973 Triple Crown winner Secretariat, and writes 1 multiple checks. See Dkt. No. 8. 2 II. Legal Standard 3 Federal courts must screen any case in which a prisoner seeks redress from a governmental 4 entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must 5 identify cognizable claims and dismiss claims that are frivolous, malicious, fail to state a claim 6 upon which relief may be granted, or seek monetary relief from a defendant immune from such 7 relief. 28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. See Balistreri v. 8 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 9 III. Analysis 10 A. Parties 11 Mr. Palmer purports to be bringing this action on behalf of himself and six other 12 individuals. See Compl. at 2. Four of these persons appear to be relatives of Mr. Palmer’s. See id. 13 Mr. Palmer cannot sue on these persons’ behalf because he is permitted only to represent himself. 14 See Cato v. United States, 70 F.3d 1103, 1105 n.1 (9th Cir. 1995) (explaining that only attorneys 15 may represent another person). If other persons wish to sue on the claims at issue, each must file 16 his or her own pro se action. 17 Mr. Palmer names as Defendants the Governor of California; the Director and 18 “Department of Behavior Health and Disability Services,” either for San Francisco or for the State 19 of California; the San Francisco Sheriff Department; and the San Francisco Jail. Id. at 1, 2. He has 20 not identified any way in which these Defendants harmed him. Rather, it appears that Mr. Palmer 21 sues the officials merely because they are officials in supervisory positions. “In a § 1983 suit …. 22 each Government official, his or her title notwithstanding, is only liable for his or her own 23 misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Under no circumstances is there 24 liability under section 1983 on the theory that one is responsible for the actions or omissions of 25 another. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“There is no respondeat superior 26 liability under section 1983.”). It is insufficient for a plaintiff generally to allege that supervisors 27 knew about a constitutional violation and that they generally created policies and procedures that 1 be dismissed from this action unless Mr. Palmer can identify in an amended complaint some 2 action each Defendant took which caused Mr. Palmer’s injury. 3 Moreover, Mr. Palmer cannot sue agencies such as the Sheriff’s Department or the 4 Department of Behavioral Health on the facts provided. To impose liability upon these agencies 5 on the legal theories asserted in the complaint, Mr. Palmer must establish: “(1) that he possessed a 6 constitutional right of which he [] was deprived; (2) that the [entity] had a policy; (3) that this 7 policy amount[ed] to deliberate indifference to the plaintiff’s constitutional rights; and (4) that the 8 policy [was] the moving force behind the constitutional violation.” Oviatt By and Through Waugh 9 v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (citations and quotation marks omitted) 10 (explaining how a government agency may be held liable under Monell v. Dep’t of Soc. Servs. of 11 City of New York, 436 U.S. 658 (1978)). If a plaintiff cannot identify an unconstitutional policy of 12 the government agency, the plaintiff must “produce evidence creating a triable issue of fact 13 regarding the existence of an unconstitutional practice or custom.” Gordon v. Orange County, 6 14 F.4th 961, 974 (9th Cir. 2021) (no custom or practice was shown where the record lacked evidence 15 of any other event involving similar conduct or constitutional violations). “[A] single incident of 16 unconstitutional activity is not sufficient to impose liability under Monell.” City of Oklahoma City 17 v. Tuttle, 471 U.S. 808, 823–24 (1985). Here, Mr. Palmer has not identified any policy or practice 18 which caused any injury. See generally Compl. 19 B. Claims 20 With his allegations about mental health care, nutrition, and water temperature, it appears 21 Mr. Palmer intends to state a claim for deliberate indifference to medical needs. See id. at 2.1 22 However, he has not provided enough facts to state a claim, or to determine which legal standard 23 applies to this claim. 24 If Mr. Palmer chooses to amend, he must provide more facts to support his claims. 25

26 1 It is unclear whether his statements about illegal detention and extradition in British Columbia and the State of Washington were intended to state claims, or to provide background information 27 on Mr. Palmer’s life. See Compl. at 3. If Mr. Palmer intended to base claims on these events, he 1 Although he says he received no mental health care while in San Francisco County Jail, see 2 Compl. at 2, if he was in that facility for only a matter of hours, providing mental health care may 3 not have been feasible. Mr. Palmer therefore must clarify how long he was in the San Francisco 4 County Jail and explain why mental health treatment was necessary during that period. Similarly, 5 Mr. Palmer complains about the shower temperature, but does not provide the information 6 necessary to determine what, if any, rights were implicated by the water temperature. For example, 7 if the water was lukewarm rather than hot, this would not state a claim for deliberate indifference. 8 But if the water was so hot that it scalded Mr. Palmer and caused an injury, this might state a 9 claim for deliberate indifference. See Madrid v. Gomez, 889 F. Supp. 1146, 1166–68, 1212 (N.D. 10 Cal. 1995) (concluding officials were deliberately indifferent where inmate suffered second- and 11 third-degree burns over one-third of his body when bathed in scalding water, and officials delayed 12 seeking medical assistance). Nor does Mr. Palmer explain how he knows his food had “no or little 13 amounts of” certain vitamins and minerals, much less provide the facts to show the levels present 14 in his food were nutritionally inadequate. Mr. Palmer simply must say more. If he chooses to 15 amend, he must identify specific persons who harmed him; what each Defendant did; what harm 16 Mr. Palmer suffered as a result of each Defendant’s actions; and when these actions and this harm 17 occurred.2 18 Mr. Palmer also did not provide enough information for the Court to determine which legal 19 standard applies to his claims. If Mr. Palmer chooses to amend, he should state whether he was a 20 convicted prisoner within the San Francisco County Jail, a pretrial detainee, or an arrestee. If Mr. 21 Palmer was a convicted prisoner during his time in the San Francisco County Jail, then the 22 “‘treatment [he] receive[d] in prison and the conditions under which he [was] confined are subject 23 to scrutiny under the Eighth Amendment.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994). The 24 Eighth Amendment requires prison officials to “ensure that inmates receive adequate food, 25 clothing, shelter, and medical care,” and to “‘take reasonable measures to guarantee the safety of 26 the inmates.’” Id. A prison official violates the Eighth Amendment when two requirements are 27 1 met: (1) the deprivation alleged must be, objectively, sufficiently serious, Farmer, 511 U.S. at 834 2 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison official possesses a 3 sufficiently culpable state of mind, i.e., the offending conduct was wanton, id. (citing Wilson, 501 4 U.S. at 297). If Mr. Palmer were a pretrial detainee during his time at the San Francisco County 5 Jail, then his medical needs claim would be analyzed under the Fourteenth Amendment’s Due 6 Process Clause rather than the Eighth Amendment’s Cruel and Unusual Punishments Clause. See 7 Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). Although a deliberate 8 indifference test still applies to a pretrial detainee’s claim, it is an objective deliberate indifference 9 test, rather than the subjective deliberate indifference test applicable to a prisoner’s claim. See 10 Gordon v. County of Orange, 888 F.3d 1118, 1122 & n.4 (9th Cir. 2018). Finally, if Mr. Palmer 11 were an arrestee in the San Francisco County Jail, the Fourth Amendment may apply to his 12 medical needs claim. See J. K. J. v. City of San Diego, 17 F.4th 1247, 1257 (9th Cir. 2021) (“For 13 purposes of this appeal, we need not decide whether the Fourth Amendment also governs J.K.J.’s 14 claim for denial of medical care, because, under both [the Fourteenth and Fourth Amendment] 15 standards, dismissal was warranted . . . .”), amended and superseded on reh’g, 42 F.4th 990 (9th 16 Cir. 2021), reh’g en banc granted, opinion vacated, 59 F.4th 1327 (9th Cir. 2023). Information on 17 Mr. Palmer’s status is necessary so the Court may know how to proceed. 18 IV. CONCLUSION 19 The Complaint is dismissed with leave to amend. 20 Mr. Palmer’s in forma pauperis application is GRANTED. The initial partial filing fee is 21 $0.10. See 28 U.S.C. § 1915(b)(1) (requiring a court to assess an initial filing fee of 20 percent of 22 a prisoner’s average monthly deposits or monthly balance, whichever is greater). A copy of this 23 order and the attached instructions will be sent to Mr. Palmer and the institution’s trust account 24 office. 25 Mr. Palmer may file a FIRST AMENDED COMPLAINT within thirty-five days from the 26 date this order is filed. The first amended complaint must include the caption and civil case 27 number used in this order (CV 23-6464-PCP (PR)) and the words FIRST AMENDED ] that demonstrate he is entitled to relief on every claim. An amended complaint supersedes the 2 || original complaint. See London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981) ([A] 3 || plaintiff waives all causes of action alleged in the original complaint which are not alleged in the 4 |} amended complaint.”); Ferdik v. Bonzelet, 963 F.2d 1258, 1262-63 (9th Cir. 1992) (where an 5 amended complaint did not name all the defendants to an action, they were no longer defendants). 6 Failure to file an amended complaint within thirty-five days and in accordance with 7 || this order will result in a finding that further leave to amend would be futile, and this action 8 || will be dismissed. 9 It is Mr. Palmer’s responsibility to prosecute this case. Mr. Palmer must keep the Court 10 || informed of any change of address by filing a separate paper with the Clerk headed “Notice of 11 Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to do so «3 12 || will result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil

13 Procedure 41(b). «14

IT IS SO ORDERED.

16 || Dated: September 19, 2024

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P. Casey Pitts 19 United States District Judge 20 21 22 23 24 25 26 27 28