Case 5:21-cv-01941-JFW-JC Document 8 Filed 02/14/22 Page 1 of 10 Page ID #:61

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 PAUL MILTON DAVIS, JR., Case No. 5:21-cv-01941-JFW-JC

12 Plaintiff, ORDER DISMISSING COMPLAINT 13 WITH LEAVE TO AMEND AND v. DIRECTING PLAINTIFF TO 14 RESPOND TO ORDER 15 SAN BERNARDINO SHERIFF’S DEPARTMENT, et al., 16 17 Defendants. 18

I. SUMMARY

19 On November 15, 2021, plaintiff Paul Milton Davis, Jr., a detainee who is 20 proceeding pro se and has been granted leave to proceed without prepayment of the 21 filing fee (“IFP”), filed a Civil Rights Complaint (“Complaint” or “Comp.”) 22 pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the San Bernardino County’s 23 Sheriff’s Department (“Sheriff’s Department” or “SBSD”), the West Valley 24 Detention Center (“WVDC”), and SBSD Deputies Villarino, Nunez, Martinez, and 25 Cypress, the latter of whom are sued in both their individual and official capacities.1 26 (Comp. at 1, 3-4 (as paginated on the Court’s electronic docket)). 27 28 1The Complaint does not clarify the basis for plaintiff’s detention. Case 5:21-cv-01941-JFW-JC Document 8 Filed 02/14/22 Page 2 of 10 Page ID #:62

1 As the Complaint is deficient in multiple respects, including those detailed 2 below, it is dismissed with leave to amend. 3 II. THE COMPLAINT 4 Plaintiff alleges that on July 4, 2021 or August 22, 2021,2 Deputies Villarino, 5 Martinez and Nunez handcuffed plaintiff and tried to search his cell, but plaintiff 6 did not let them. (Comp. at 5). In response, the deputies knocked plaintiff to the 7 ground, punched him, choked him, and removed him from his cell. (Comp. at 5). 8 Plaintiff complains that he was wearing a cast and Deputy Nunez used enough force 9 to break the cast.3 (Comp. at 3). Additionally, Deputy Martinez punched plaintiff 10 while plaintiff was handcuffed and slammed his knee on plaintiff’s neck, and 11 Deputy Cypress dragged plaintiff down the stairs while plaintiff was handcuffed, 12 which “messed up [plaintiff’s] left foot.” (Comp. at 3-5). Plaintiff also complains 13 the handcuffs and leg strap were too tight so that they cut his wrists and cut off 14 blood flow to his legs.4 (Comp. at 5). He also asserts that he has mental health 15 16 2Plaintiff provides two dates of injury July 4, 2021 and August 22, 2021 but only 17 describes a single incident. (Comp. at 3, 5). While documents attached to the complaint suggest 18 the incident occurred on July 4, 2021, (Comp. at 7); see also Roth v. Garcia Marquez, 942 F.2d 617, 625 n.1 (9th Cir. 1991) (“If a complaint is accompanied by attached documents, the court is 19 not limited by the allegations contained in the complaint. These documents are part of the 20 complaint and may be considered in determining whether the plaintiff can prove any set of facts in support of the claim.” (citations and internal punctuation omitted)), plaintiff can clarify this 21 issue in any amended complaint he files. 22 3It is unclear exactly what part of plaintiff’s body was in a cast. (See Comp. at 3). 23 4Plaintiff’s Complaint is not always entirely clear in explaining what actions each deputy 24 took against plaintiff or how those actions affected plaintiff. (See Comp. at 3-5). For instance, it is unclear whether plaintiff was successfully handcuffed before the deputies took him to the 25 ground and began punching him. (See Comp. at 5). Nor is it certain how many deputies were 26 involved in dragging plaintiff down the stairs or who choked plaintiff. (See Comp. at 4-5). Moreover, while plaintiff suggests he was injured in the incident, he does not coherently explain 27 the scope of any injuries, but instead complains that, among other things, his left foot was “messed up.” (Comp. at 4-5). Plaintiff can clarify his allegations in any amended complaint he 28 files. 2 Case 5:21-cv-01941-JFW-JC Document 8 Filed 02/14/22 Page 3 of 10 Page ID #:63

1 problems and mental health staff should have been called before the incident 2 occurred. (Comp. at 5). 3 Based on these contentions, plaintiff alleges violations of his Fourth, Sixth, 4 and Fourteenth Amendment rights.5 (Comp. at 5). Among other relief, plaintiff 5 seeks damages and requests defendants undergo more training. (Comp. at 6). 6 III. STANDARD OF REVIEW 7 Since plaintiff is proceeding IFP, his Complaint is subject to sua sponte 8 review and must be dismissed if it is: (1) frivolous or malicious; (2) fails to state a 9 claim upon which relief may be granted; or (3) seeks monetary relief from a 10 defendant immune from such relief. See 28 U.S.C. § 1915(e)(2)(B); Lopez v. 11 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). 12 Dismissal for failure to state a claim is appropriate if plaintiff fails to proffer 13 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. 14 v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 15 (2009). “A claim has facial plausibility when the plaintiff pleads factual content 16 that allows the court to draw the reasonable inference that the defendant is liable for 17 the misconduct alleged.” Iqbal, 556 U.S. at 678; Hartmann v. Cal. Dep’t of Corr. & 18 Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). Although plaintiff must provide 19 “more than labels and conclusions, and a formulaic recitation of the elements of a 20 cause of action will not do,” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678, 21 “[s]pecific facts are not necessary; the [complaint] need only give the [defendants] 22 fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson 23 v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (citations and internal quotation 24 marks omitted); Twombly, 550 U.S. at 555. 25 26 5If plaintiff is a pretrial detainee, his excessive force claim is properly brought under the 27 Fourteenth Amendment. See Kingsley v. Hendrickson, 576 U.S. 389, 397-98 (2015) (“‘[T]he Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to 28 punishment.’” (quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). 3 Case 5:21-cv-01941-JFW-JC Document 8 Filed 02/14/22 Page 4 of 10 Page ID #:64

1 In considering whether to dismiss a complaint, the Court must accept the 2 factual allegations of the complaint as true,6 Wood v. Moss, 572 U.S. 744, 755 n.5 3 (2014); Erickson, 551 U.S. at 93-94, construe the pleading in the light most 4 favorable to the pleading party, and resolve all doubts in the pleader’s favor. 5 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Berg v. Popham, 412 F.3d 1122, 6 1125 (9th Cir. 2005). Pro se pleadings are “to be liberally construed” and are held 7 to a less stringent standard than those drafted by a lawyer. Erickson, 551 U.S. at 8 94; Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); see also Hebbe v. 9 Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (“Iqbal incorporated the Twombly 10 pleading standard and Twombly did not alter courts’ treatment of pro se filings; 11 accordingly, we continue to construe pro se filings liberally when evaluating them 12 under Iqbal.”). Dismissal for failure to state a claim can be warranted based on 13 either the lack of a cognizable legal theory or the absence of factual support for a 14 cognizable legal theory. See Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015), cert. 15 denied, 136 S. Ct. 929 (2016); Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 16 1097, 1104 (9th Cir. 2008). A complaint may also be dismissed for failure to state a 17 claim if it discloses some fact or complete defense that will necessarily defeat the 18 claim. See Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013), 19 cert. denied, 573 U.S. 916 (2014). 20 /// 21 /// 22 /// 23 24 6“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of 25 action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678; 26 Yagman v. Garcetti, 852 F.3d 859, 863 (9th Cir. 2017). Likewise, the Court “need not accept as true allegations contradicting documents that are referenced in the complaint or that are properly 27 subject to judicial notice.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2006); Seven Arts Filmed Entm’t Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 28 2013). 4 Case 5:21-cv-01941-JFW-JC Document 8 Filed 02/14/22 Page 5 of 10 Page ID #:65

1 IV. DISCUSSION 2 The Court has reviewed the Complaint under the aforementioned standards 3 and has concluded the Complaint is deficient and must be dismissed with leave to 4 amend. 5 In particular, “a pro se litigant is not excused from knowing the most basic 6 pleading requirements.” American Ass’n of Naturopathic Physicians v. Hayhurst, 7 227 F.3d 1104, 1107-08 (9th Cir. 2000), cert. denied, 532 U.S. 1008 (2001). For 8 instance, Fed. R. Civ. P. 10(a) requires that the “[t]he title of the complaint must 9 name all the parties.” Here, the title of plaintiff’s Complaint names two defendants 10 – the Sheriff’s Department and WVDC – while the body of his Complaint identifies 11 four entirely different defendants – Deputies Villarino, Nunez, Martinez, and 12 Cypress. (Comp. at 1, 3-4). This does not satisfy Rule 10(a) and, accordingly, 13 plaintiff’s Complaint must be dismissed with leave to amend. See Ferdik v. 14 Bonzelet, 963 F.2d 1258, 1260-63 (9th Cir.), cert. denied, 506 U.S. 915 (1992); see 15 also Rickard v. Riverside Cnty. Sheriff’s Dep’t, 2020 WL 5027985, *5 (C.D. Cal. 16 2020) (“Because the caption of the Complaint fails to clearly identify the 17 persons/entities plaintiff is suing, the Complaint is dismissed with leave to amend 18 for violation of Rule 10(a).”); Rodriguez v. Hart, 2019 WL 688210, *5 (C.D. Cal. 19 2019) (“In any amended complaint he chooses to file, Plaintiff must list his own 20 name and the names of all the Defendants in the proper spaces in the caption or the 21 amended complaint will be subject to dismissal on that basis alone.”). 22 Since the Complaint must be dismissed with leave to amend on the foregoing 23 basis, the Court will highlight a couple of other deficiencies in the Complaint. 24 First, plaintiff fails to state a claim against the Sheriff’s Department and the 25 WVDC – the only two defendants named in the caption of the Complaint – and 26 against the individual defendants to the extent they are sued their official capacities. 27 Plaintiff has not directly raised any allegations against the Sheriff’s Department and 28 WVDC (Comp. at 1-6). However, his suit against the individual deputies in their 5 Case 5:21-cv-01941-JFW-JC Document 8 Filed 02/14/22 Page 6 of 10 Page ID #:66

1 official capacities is equivalent to a suit against their employer, Kentucky v. 2 Graham, 473 U.S. 159, 166 (1985); Hartmann, 707 F.3d at 1127, which in this case 3 is the Sheriff’s Department. See Streit v. Cnty. of Los Angeles, 236 F.3d 552, 565- 4 66 (9th Cir.) (Under California law, a sheriff’s department “is a separately suable 5 entity”), cert. denied, 534 U.S. 823 (2001); Karim-Panahi v. Los Angeles Police 6 Dep’t, 839 F.2d 621, 624 n.2 (9th Cir. 1988) (“Municipal police departments are 7 ‘public entities’ under California law and, hence, can be sued in federal court for 8 alleged civil rights violations”). 9 A municipal entity such as the Sheriff’s Department may be held liable under 10 § 1983 only for constitutional violations occurring pursuant to an official 11 government policy or custom. Collins v. City of Harker Heights, Tex., 503 U.S. 12 115, 121 (1992); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). 13 However, “a municipality cannot be held liable solely because it employs a 14 tortfeasor – or, in other words, a municipality cannot be held liable under § 1983 on 15 a respondeat superior theory.” Monell, 436 U.S. at 692; Board of the Cnty. 16 Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403 (1997). Thus, “[i]n 17 order to hold the [Sheriff’s Department] liable under § 1983, [plaintiff] must show 18 (1) that he possessed a constitutional right of which he was deprived; (2) that the 19 [Sheriff’s Department] had a policy; (3) that the policy amounts to deliberate 20 indifference to [plaintiff’s] constitutional right; and (4) that the policy is the 21 ‘moving force behind the constitutional violation.’” Anderson v. Warner, 451 F.3d 22 1063, 1070 (9th Cir. 2006) (citations and internal quotation marks omitted); 23 Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011), cert. denied, 569 24 U.S. 904 (2013); see also Cameron v. Craig, 713 F.3d 1012, 1023 (9th Cir. 2013) 25 (“Under federal law, the County cannot be held vicariously liable for its deputies’ 26 acts of excessive force. The County may be held liable only if it ‘has adopted an 27 illegal or unconstitutional policy or custom’ that resulted in the excessive force.” 28 (citation omitted)). “To meet [the ‘moving force’] requirement, the plaintiff must 6 Case 5:21-cv-01941-JFW-JC Document 8 Filed 02/14/22 Page 7 of 10 Page ID #:67

1 show both causation-in-fact and proximate causation.” Gravelet-Blondin v. 2 Shelton, 728 F.3d 1086, 1096 (9th Cir. 2013), cert. denied, 571 U.S. 1199 (2014); 3 see also Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008) 4 (en banc) (“[T]here must be ‘a direct causal link between a municipal policy or 5 custom and the alleged constitutional deprivation.’” (quoting City of Canton v. 6 Harris, 489 U.S. 378, 385 (1989)). Conclusory allegations are insufficient to state a 7 Monell claim. Iqbal, 556 U.S. at 678; see also Capp v. Cnty. of San Diego, 940 8 F.3d 1046, 1061 (9th Cir. 2019) (“[T]he [operative complaint] ascribes Defendants’ 9 alleged misconduct to official policy in a conclusory fashion that is insufficient to 10 state a viable [Monell] claim.”); Dougherty, 654 F.3d at 900-01 (affirming dismissal 11 of Monell claims when there was a “lack any factual allegations that would separate 12 them from the ‘formulaic recitation of a cause of action’s elements’ deemed 13 insufficient by Twombly” (quoting Twombly, 550 U.S. at 555). 14 The allegations of plaintiff’s Complaint fail to meet these requirements since, 15 among other things, plaintiff has not identified any policy, practice or custom that 16 caused the alleged violation of his constitutional rights. See Fortson v. Los Angeles 17 City Attorney’s Office, 852 F.3d 1190, 1195 (9th Cir.) (“Fortson’s official-capacity 18 claims against the [police department] fail because he has not sufficiently. . . 19 identified an official policy or custom that was the ‘moving force’ behind a 20 potential constitutional violation.”), cert. denied, 138 S. Ct. 69 (2017); AE ex rel. 21 Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (Monell claims 22 “‘must contain sufficient allegations of underlying facts to give fair notice and to 23 enable the opposing party to defend itself effectively’” and “‘must plausibly suggest 24 an entitlement to relief, such that it is not unfair to require the opposing party to be 25 subjected to the expense of discovery and continued litigation.’” (quoting Starr v. 26 Baca, 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 566 U.S. 982 (2012))); 27 Dougherty, 654 F.3d at 900-01 (affirming dismissal of Monell claim when the 28 plaintiff failed to allege “any facts demonstrating that his constitutional deprivation 7 Case 5:21-cv-01941-JFW-JC Document 8 Filed 02/14/22 Page 8 of 10 Page ID #:68

1 was the result of a custom or practice of the City of Covina or that the custom or 2 practice was the ‘moving force’ behind his constitutional deprivation.”). 3 Second, although plaintiff appears to intend to assert a single excessive force 4 claim against the individual defendants in their individual capacities – a claim 5 which would be cognizable under the Fourteenth Amendment if plaintiff is a 6 pretrial detainee (see supra note 5) or under the Eighth Amendment if plaintiff is a 7 convicted prisoner7 – plaintiff conflates references to violations of the Fourteenth 8 Amendment, the Fourth Amendment and the Sixth Amendment into his single 9 claim. (Comp. at 5). The Court cannot discern from the Complaint, and plaintiff 10 fails to state a claim for violations of the Fourth Amendment (which applies to 11 excessive force claims arising in the context of an arrest or investigatory stop of a 12 free citizen and appears to be inapplicable here)8 and the Sixth Amendment (which 13 does not apply to excessive force claims).9 To the extent plaintiff intends to assert 14 claims arising under the Fourth and/or Sixth Amendments, he must do so in 15 separate claims and allege facts demonstrating violations of such constitutional 16 provisions. 17 18 7Whitley v. Albers, 475 U.S. 312, 318-326 (1986) (claim of excessive force to subdue 19 convicted prisoner analyzed under an Eighth Amendment standard). 20 8Graham v. Connor, 490 U.S. 386, 394 (1989) (excessive force claim arising in context of 21 arrest or investigatory stop of free citizen, most properly characterized as one invoking protections of Fourth Amendment). 22 9The Sixth Amendment provides: 23 24 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have 25 been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses 26 against him; to have compulsory process for obtaining witnesses in his favor, and to have 27 the Assistance of Counsel for his defence.

28 U.S. Const. amend. VI. 8 Case 5:21-cv-01941-JFW-JC Document 8 Filed 02/14/22 Page 9 of 10 Page ID #:69

1 For the reasons discussed herein, plaintiff’s Complaint must be dismissed 2 with leave to amend. 3 V. ORDERS10 4 In light of the foregoing, IT IS HEREBY ORDERED that the Complaint is 5 dismissed with leave to amend. 6 IT IS FURTHER ORDERED that within twenty (20) days of the date of this 7 Order, plaintiff must do one of the following: 8 1. File a First Amended Complaint which cures the pleading defects set 9 forth herein;11 or 10 2. Sign and file the attached Notice of Dismissal which will result in 11 the voluntary dismissal of this action without prejudice; or 12 13 14 10The Magistrate Judge’s orders herein constitute non-dispositive rulings on pretrial matters. See McKeever v. Block, 932 F.2d at 797-98 (magistrate judges can dismiss complaints 15 with leave to amend; dismissal of complaint with leave to amend is non-dispositive matter). To 16 the extent a party disagrees with such non-dispositive rulings, such party may file a motion for review by the assigned District Judge within fourteen (14) days. See Local Rule 72-2.1. To the 17 extent a party believes the rulings to be dispositive, rather than non-dispositive, such party has the right to object to this Court’s determination that the rulings are non-dispositive within 18 fourteen (14) days. A party will be foreclosed from challenging the rulings herein if such party 19 does not seek review thereof, or object thereto. 20 11The Clerk is directed to provide plaintiff with a Central District of California Civil Rights Complaint Form, CV-66, to facilitate plaintiff’s filing of a First Amended Complaint if he 21 elects to proceed in that fashion. Any First Amended Complaint must: (a) be labeled “First 22 Amended Complaint”; (b) be complete in and of itself and not refer in any manner to the original Complaint i.e., it must include all claims on which plaintiff seeks to proceed (Local Rule 15- 23 2); (c) contain a “short and plain” statement of each of the claim(s) for relief (Fed. R. Civ. P. 24 8(a)); (d) make each allegation “simple, concise and direct” (Fed. R. Civ. P. 8(d)(1)); (e) set forth clearly the sequence of events giving rise to the claim(s) for relief; (f) allege specifically 25 what each defendant did and how that individual’s conduct specifically violated plaintiff’s civil rights; (g) for each claim asserted, specifically identify which defendants are being sued and in 26 what capacity; (h) not add defendants or claims that are not reasonably related to the claims 27 asserted in the original Complaint; (i) include a title/caption naming all the parties (Fed. R. Civ. P. 10(a)); and (j) set forth “each claim founded on a separate transaction or occurrence . . . in a 28 separate count[.]” Fed. R. Civ. P. 10(b). 9 Case 5:21-cv-01941-JFW-JC Document 8 Filed 02/14/22 Page 10 of 10 Page ID #:70

1 3. File a Notice of Intent to Stand on Complaint, indicating plaintiff’s 2 intent to stand on the original Complaint despite the pleading defects set forth 3 herein, which may result in the dismissal of this action based upon such defects. 4 Plaintiff is cautioned that his failure timely to file a First Amended 5 Complaint, a Notice of Dismissal, or a Notice of Intent to Stand on Complaint 6 may be deemed plaintiff’s admission that amendment is futile, and may result 7 in the dismissal of this action with or without prejudice on the grounds set 8 forth above, on the ground that amendment is futile, for failure diligently to 9 prosecute and/or for failure to comply with this Order. 10 IT IS SO ORDERED. 11 12 DATED: February 14, 2022 13 ________________/s/___________________ 14 Honorable Jacqueline Chooljian

UNITED STATES MAGISTRATE JUDGE

15 16 Attachments 17 18 19 20 21 22 23 24 25 26 27 28 10