1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ) 11 DAVID H. MCCLURE, ) Case No. CV 20-9268-CAS (JEM) ) 12 Plaintiff, ) ) MEMORANDUM AND ORDER 13 v. ) DISMISSING COMPLAINT WITH ) LEAVE TO AMEND 14 THE COUNTY OF LOS ANGELES ) CALIFORNIA, et al., ) 15 ) Defendants. ) 16 ) 17

PROCEEDINGS

18 On October 8, 2020, David H. McClure (“Plaintiff”), proceeding pro se and in forma 19 pauperis, filed a Complaint in which he appears to allege various federal constitutional and 20 state law claims, including civil rights claims under 42 U.S.C. § 1983. 21 For the reasons set forth below, the Court finds that the Complaint should be 22 dismissed with leave to amend. 23

PLAINTIFF’S ALLEGATIONS

24 Plaintiff alleges the following: 25 On October 4, 2019, Plaintiff was arrested by Los Angeles County Sheriff’s 26 Department (“LASD”) deputies in connection with a traffic warrant. At that time, Plaintiff 27 28 1 was suffering from an eye injury that he had sustained at work a week earlier. (Complaint 2 at 3.) 3 During the arrest and booking process, Plaintiff “was visibly disabled and wore an 4 eye patch.” He requested access to his prescribed eye medication, which he needed to 5 apply every three to four hours. Plaintiff advised deputies that his eye would be harmed if 6 he were not permitted to use his prescribed medication. Deputies refused to provide 7 Plaintiff with the requested medication. Plaintiff “was antagonized and subjected to physical 8 pain by employees who made unwarranted comments and roughly manipulated his eye 9 patch.” (Id. at 2-3.) 10 Later that morning, Plaintiff was sent to the Los Angeles County Medical Center 11 (“LCMC”) due to his eye condition. LCMC personnel did not provide Plaintiff with his eye 12 medication. (Id. at 3.) 13 On October 7, 2017, Plaintiff was returned to LCMC “for a right orbitotomy, an 14 exploratory surgery and removal of foreign body.” LCMC personnel did not place the order 15 for his eye medication until October 9, 2019, eight days after he was taken into custody. 16 Plaintiff was finally allowed to self-administer his medication on October 23, 2019. (Id. at 3- 17 4.) 18 On November 12, 2019, Plaintiff underwent a right scleral buckle procedure. The 19 physician ordered that Plaintiff should be placed in a face down position and given frequent 20 opthalmic steroids after the procedure. When Plaintiff was returned to the Los Angeles 21 County Jail, he was not provided with the prescribed care. He was transferred to court for 22 an appearance on November 22, 2019, which involved lengthy travel and required Plaintiff 23 to remain upright. As a result, he suffered extreme pain for hours during transport and 24 while waiting for his hearing. Ultimately, these actions caused irreversible damage to 25 Plaintiff’s eye and resulted in his blindness. (Id. at 4.) 26 27 28 1 “Defendants Sheriff Alex Villanueva, other unnamed supervisors, medical staff 2 members and employees, acting under the color of their authority as supervisor officers, 3 deputies, physicians, nurses, and staff” knew or should have known that there was a 4 “history and propensity and pattern” at the Los Angeles County Jails of failing to provide 5 inmates with proper medical treatment. The failure to investigate or correct these acts or 6 failures caused the violations of Plaintiff’s constitutional rights. (Id. at 5.) 7 Specifically, Defendants committed the following wrongful acts: failed to provide 8 access to and delivery of medical care and treatment for inmates with known medical 9 conditions; failed to provide adequate and reasonable monitoring of inmates at Los Angeles 10 County Jails that have obvious and demonstrable medical conditions; failed to supervise 11 their subordinates to ensure that personnel were implementing and complying with policies 12 and procedures to ensure the medical safety of inmates. (Id. at 6.) 13 “This claim includes but is not limited to violations of state and federal law, state and 14 federal constitutional and civil rights violations. Claimant[’]s potential federal causes of 15 action include, but are not limited to, claims under 42 U.S.C. §§ 1983 and 1985 and the 16 Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. (Id.) 17 Plaintiff seeks monetary damages. (Id. at 7.) 18 DISCUSSION 19 I. PLEADING STANDARDS 20 A complaint may be dismissed as a matter of law for failure to state a claim for two 21 reasons: (1) the plaintiff fails to state a cognizable legal theory; or (2) the plaintiff has 22 alleged insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 23 901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim on 24 which relief may be granted, allegations of material fact are taken as true and construed in 25 the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 26 1988). However, “the liberal pleading standard . . . applies only to a plaintiff’s factual 27 28 1 allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of 2 a civil rights complaint may not supply essential elements of the claim that were not initially 3 pled.” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 4 Although a complaint "does not need detailed factual allegations" to survive 5 dismissal, a plaintiff must provide “more than mere labels and conclusions, and a formulaic 6 recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 7 550 U.S. 544, 555 (2007) (rejecting the traditional “no set of facts” standard set forth in 8 Conley v. Gibson, 355 U.S. 41 (1957)). The complaint must contain factual allegations 9 sufficient to rise above the “speculative level,” Twombly, 550 U.S. at 555, or the merely 10 possible or conceivable. Id. at 557, 570. 11 Simply put, the complaint must contain "enough facts to state a claim to relief that is 12 plausible on its face." Twombly, 550 U.S. at 570. A claim has facial plausibility when the 13 complaint presents enough facts “to draw the reasonable inference that the defendant is 14 liable.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard is not a probability 15 requirement, but “it asks for more than a sheer possibility that a defendant has acted 16 unlawfully.” Id. A complaint that pleads facts that are merely consistent with liability stops 17 short of the line between possibility and plausibility. Id. 18 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) 19 that a right secured by the Constitution or laws of the United States was violated and (2) 20 that the violation was committed by a person acting under the color of state law. West v. 21 Atkins, 487 U.S. 42, 48 (1988). Liability may be imposed on an individual defendant under 22 § 1983 if the plaintiff can show that the defendant proximately caused the deprivation of a 23 federally protected right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person 24 deprives another of a constitutional right within the meaning of § 1983 if he does an 25 affirmative act, participates in another's affirmative act or omits to perform an act which he 26 is legally required to do, that causes the deprivation of which the plaintiff complains. Id. at 27 28 1 633. The inquiry into causation must be individualized and focus on the duties and 2 responsibilities of each individual defendant whose acts or omissions are alleged to have 3 caused a constitutional deprivation. Id. Sweeping conclusory allegations will not suffice; 4 the plaintiff must instead “set forth specific facts as to each individual defendant's” 5 deprivation of protected rights. Id. at 634. 6 In a pro se civil rights case, the complaint must be construed liberally to afford 7 plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dept, 839 F.2d 621, 8 623 (9th Cir. 1988). Unless it is clear that the deficiencies in a complaint cannot be cured, 9 pro se litigants are generally entitled to a notice of a complaint’s deficiencies and an 10 opportunity to amend prior to the dismissal of an action. Id. at 623. Only if it is absolutely 11 clear that the deficiencies cannot be cured by amendment should the complaint be 12 dismissed without leave to amend. Id.; Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 13 2007). 14 II. PLAINTIFF MUST NAME ALL DEFENDANTS IN THE CAPTION 15 The caption of the Complaint lists “The County of Los Angeles California Claim 16 Against the Los Angeles Sheriffs Dept” as the defendant in this action. (Complaint at 1.) 17 Thus, the identities of the intended defendants are not clear. Sheriff Alex Villanueva and 18 other County officers and personnel, who are mentioned as defendants in the body of the 19 Complaint, have not been presented properly as parties, and the Court does not recognize 20 them as defendants in this action. If Plaintiff files an amended complaint, he must include 21 in the caption the names of each defendant against whom he is asserting a claim. 22 See Fed. R. Civ. P. 10(a); Local Rule 11-3.8(d); see also Ferdik v. Bonzelet, 963 F.2d 1258, 23 1262-63 (9th Cir. 1992) (dismissing action for refusal to comply with court orders to name 24 defendants in the caption). Thus, Plaintiff must list all defendants in the caption on page 1 25 of the amended complaint. The Court will not order the United States Marshal to serve the 26 amended complaint on any named defendant not identified in the caption. Plaintiff also 27 28 1 must list all defendants in the appropriate section of the amended complaint where Plaintiff 2 is asked to identify the defendants. 3 III. THE COMPLAINT FAILS TO COMPLY WITH FED. R. CIV. P. 8 4 Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “‘a short 5 and plain statement of the claim showing that the pleader is entitled to relief,’ in order to 6 ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” 7 Twombly, 550 U.S. at 555 (internal citation omitted). To comply with Rule 8, a plaintiff 8 should set forth “who is being sued, for what relief, and on what theory, with enough detail 9 to guide discovery.” McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). Conclusory 10 allegations are insufficient. See Iqbal, 556 U.S. at 678 (Rule 8 “demands more than an 11 unadorned, the-defendant-unlawfully-harmed-me accusation”; a pleading that “offers labels 12 and conclusions or a formulaic recitation of the elements of a cause of action will not do.”) 13 (internal quotation marks and citation omitted). 14 Plaintiff's Complaint does not comply with the standards of Rule 8. Plaintiff asserts 15 that his “claim includes but is not limited to violations of state and federal law, state and 16 federal constitutional and civil rights violations.” (Complaint at 6.) He then lists a variety of 17 “potential” federal and state causes of action, but states that “[t]his list is intended to be 18 illustrative, not exhaustive. The actual causes of action that will be asserted will be 19 determined by the facts for which notice has been given and which may be pled in the 20 complaint filed in any action.” (Id. at 7.) Thus, it is not clear what legal claims Plaintiff is 21 attempting to assert, nor is it clear how the factual allegations set forth throughout the 22 Complaint relate to those claims. Plaintiff’s failure to plainly and succinctly provide 23 defendants with fair notice of the bases for his claims violates Rule 8. See Cafasso v. Gen. 24 Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011); see also American Ass’n of 25 Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000) (“[A] pro se 26 litigant is not excused from knowing the most basic pleading requirements.”). 27 28 1 Plaintiff’s Complaint should be dismissed with leave to amend for failure to comply 2 with Rule 8. 3 IV. THE COMPLAINT FAILS TO COMPLY WITH FED. R. CIV. P. 10 4 Fed. R. Civ. P. 10(b) requires a party to “state its claims or defenses in numbered 5 paragraphs, each limited as far as practicable to a single set of circumstances. . . . If doing 6 so would promote clarity, each claim founded on a separate transaction or occurrence . . . 7 must be stated in a separate count[.]” Fed. R. Civ. P. 10(b). “Separate counts will be 8 required if necessary to enable the defendant to frame a responsive pleading or to enable 9 the court and the other parties to understand the claims.” Bautista v. Los Angeles County, 10 216 F.3d 837, 840 (9th Cir. 2000) (citation omitted). “Courts have required separate counts 11 where multiple claims are asserted, where they arise out of separate transactions or 12 occurrences, and where separate statements will facilitate a clear presentation.” Id. at 840- 13 41. “In such cases, separate counts permit pleadings to serve their intended purpose to 14 frame the issue and provide the basis for informed pretrial proceedings.” Id. at 841. 15 “‘Experience teaches that, unless cases are pled clearly and precisely, issues are not 16 joined, discovery is not controlled, the trial court’s docket becomes unmanageable, the 17 litigants suffer, and society loses confidence in the court’s ability to administer justice.’” Id. 18 (citations omitted). 19 Again, Plaintiff does not clearly assert his legal claims, although he provides a long 20 list of “potential” claims. This is insufficient. Plaintiff must set forth each of his claims – 21 including the supporting facts for each claim – as separate counts and explain the factual 22 basis for each count, so as to allow the Court and defendants to understand the scope and 23 nature of Plaintiff’s allegations. 24 Accordingly, the Complaint is subject to dismissal pursuant to Rule 10. If Plaintiff 25 wishes to file an amended complaint, he must set forth each claim as a separately and 26 distinctly numbered claim. Any claim that is not clearly numbered or separated from all 27 28 1 other claims and accompanied with the alleged facts supporting that claim will not be 2 addressed as a separate claim for relief. 3 V. CLAIMS AGAINST THE COUNTY OR AGAINST INDIVIDUALS IN THEIR 4 OFFICIAL CAPACITIES 5 As set forth above, Plaintiff has not properly identified the defendants in this action. 6 However, it does appear that he is attempting to sue the County of Los Angeles, as well as 7 Sheriff Villanueva and other County personnel in their official capacities. 8 The Supreme Court has held that an "official-capacity suit is, in all respects other 9 than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 10 166 (1985); see also Brandon v. Holt, 469 U.S. 464, 471-72 (1985); Larez v. City of Los 11 Angeles, 946 F.2d 630, 646 (9th Cir. 1991). Such a suit "is not a suit against the official 12 personally, for the real party in interest is the entity." Graham, 473 U.S. at 159. Thus, 13 claims against individual defendants in their official capacities are tantamount to claims 14 against the County. 15 A local governmental entity, such as the County, “may not be sued under § 1983 for 16 an injury inflicted solely by its employees or agents. Instead, it is when execution of a 17 government's policy or custom, whether made by its lawmakers or by those whose edicts or 18 acts may fairly be said to represent official policy, inflicts the injury that the government as 19 an entity is responsible under § 1983.” Monell v. Dept. of Social Services of City of New 20 York, 436 U.S. 658, 694 (1978). Thus, “[i]n order to hold [a local government defendant] 21 liable under § 1983, [Plaintiff] must show (1) that he possessed a constitutional right of 22 which he was deprived; (2) that the [local government entity] had a policy; (3) that the policy 23 amounts to deliberate indifference to [Plaintiff's] constitutional right; and (4) that the policy is 24 the ‘moving force behind the constitutional violation.’” Anderson v. Warner, 451 F.3d 1063, 25 1070 (9th Cir. 2006) (citations and internal quotation marks omitted); Dougherty v. City of 26 Covina, 654 F.3d 892, 900 (9th Cir. 2011). “There also must be a ‘direct causal link’ 27 28 1 between the policy or custom and the injury, and [Plaintiff] must be able to demonstrate that 2 the injury resulted from a ‘permanent and well settled practice.’” Anderson, 451 F.3d at 3 1070 (citation omitted); Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 957 (9th Cir. 4 2008) (en banc). A plaintiff cannot prove the existence of a municipal policy or custom 5 based solely on the occurrence of a single incident of unconstitutional action by a non- 6 policymaking employee. City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985). 7 Thus, in order to assert a claim against the County and/or individual defendants in 8 their official capacities, Plaintiff must identify policy statements, regulations, officially 9 adopted or promulgated decisions, customs, or practices by which County officials allegedly 10 inflicted the injuries about which Plaintiff is complaining. 11 If Plaintiff chooses to file an amended complaint, he should not sue the County or 12 any individual defendants in their official capacities unless he can allege specific facts 13 demonstrating that the County has a policy, regulation, custom, or practice by which the 14 injuries to Plaintiff were inflicted. 15 VI. CLAIMS AGAINST INDIVIDUAL DEFENDANTS BASED ON THEIR 16 SUPERVISORY POSITIONS 17 Although it is not clear, it appears that Plaintiff is attempting to sue Sheriff Villanueva 18 and other supervisory officials in their individual capacities. 19 In a Section 1983 action, a supervisory official cannot be held liable under a theory 20 of respondeat superior or vicarious liability. See, e.g., Iqbal, 556 U.S. at 676. A 21 supervisor’s mere knowledge of the unconstitutional conduct of a subordinate does not 22 amount to the supervisor’s own violation of the Constitution. See id. at 677 (rejecting this 23 theory of supervisory liability). “Absent vicarious liability, each Government official, his or 24 her title notwithstanding, is only liable for his or her own misconduct.” Id. 25 Under Section 1983, a supervisor may be liable if a plaintiff demonstrates either: (1) 26 his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal 27 connection between the supervisor’s wrongful conduct and the constitutional violation. 28 1 Edgerly v. City & County of San Francisco, 599 F.3d 946, 961 (9th Cir. 2010); MacKinney v. 2 Nielsen, 69 F.3d 1002, 1008 (9th Cir. 1995). Liability also can be established if the 3 supervisor set in motion a series of acts by others which the actor knows or reasonably 4 should know would cause others to inflict the constitutional injury. Johnson, 588 F.2d at 5 743-44. However, “[v]ague and conclusory allegations of official participation in civil rights 6 violations are not sufficient to withstand a motion to dismiss.” Ivey, 673 F.2d at 268. Thus, 7 a high ranking administrator such as the Sheriff cannot be held liable under Section 1983, 8 absent a showing that he was personally involved in the constitutional deprivation, or if 9 there was a sufficient causal connection between the Sheriff’s wrongful conduct and the 10 constitutional violation. See Redman v. Warden of San Diego, 942 F.2d 1435, 1446 (9th 11 Cir. 1991). 12 As to Sheriff Villanueva, Plaintiff alleges no facts demonstrating that he had personal 13 encounters with the Sheriff at any time during his confinement at the Jail. Plaintiff alleges 14 no facts demonstrating that the Sheriff was personally involved in or individually caused the 15 alleged constitutional deprivations. Thus, to the extent that Plaintiff is attempting to do so, 16 he fails to state a civil rights claim against the Sheriff in his individual capacity. The same 17 principles would apply to other unidentified supervisory officials. 18 Thus, Plaintiff is cautioned that he must allege facts that demonstrate each 19 individual-capacity defendant’s liability under the standards set forth above. To the extent 20 that Plaintiff does not yet know the identities of such individuals, he may identify them as 21 doe defendants in his amended complaint. 22 VII. DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEEDS 23 It appears that Plaintiff is attempting to assert a claim for deliberate indifference to 24 his serious medical needs, in violation of the Fourteenth Amendment. The Court has 25 already found that the Complaint must be dismissed with leave to amend. If Plaintiff 26 chooses to file an amended complaint and assert deliberate indifference claims, his claims 27 are governed by the following standards: 28 1 It appears that Plaintiff was a pretrial detainee, as opposed to a convicted prisoner, 2 at the time of the events relevant to this claim. Thus, his Section 1983 claims arise under 3 the Due Process Clause of the Fourteenth Amendment. Castro v. County of Los Angeles, 4 833 F.3d 1060, 1067-68 (9th Cir. 2016) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)); 5 see also Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010); Maddox v. 6 City of Los Angeles, 792 F.2d 1408, 1414 (9th Cir. 1986). The test for establishing 7 deliberate indifference under the Fourteenth Amendment is “purely objective,” and there is 8 no subjective component. Castro, 833 F.3d at 1071; see also Kingsley v. Hendrickson, 135 9 S. Ct. 2466, 2472-73 (2015). 10 The elements of a pretrial detainee's Fourteenth Amendment claim for deliberate 11 indifference against an individual deputy are: 12 (1) The defendant made an intentional decision with respect to the conditions under 13 which the plaintiff was confined; 14 (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; 15 (3) The defendant did not take reasonable available measures to abate that risk, 16 even though a reasonable officer in the circumstances would have appreciated the 17 high degree of risk involved – making the consequences of the defendant's conduct 18 obvious; and 19 (4) By not taking such measures, the defendant caused the plaintiff's injuries. 20 With respect to the third element, the defendant's conduct must be objectively 21 unreasonable, a test that will necessarily “turn[ ] on the ‘facts and circumstances of 22 each particular case.’” Kingsley, 135 S. Ct. at 2473 (quoting Graham v. Connor, 490 23 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)); see also Restatement 24 (Second) of Torts § 500 cmt. a (Am. Law Inst. 2016) (recognizing that “reckless 25 disregard” may be shown by an objective standard under which an individual “is held 26 to the realization of the aggravated risk which a reasonable [person] in his place 27 would have, although he does not himself have it”). 28 1 Castro, 833 F.3d at 1071; see also Darnell v. Pineiro, 849 F.3d 17, 35-36 (2d Cir. 2017) 2 (concluding that “Kingsley's broad reasoning extends beyond the excessive force context in 3 which it arose” and announcing “we join the . . . Ninth Circuit, which, . . . likewise interpreted 4 Kingsley as standing for the proposition that deliberate indifference for due process 5 purposes should be measured by an objective standard”). Under this test, “a pretrial 6 detainee who asserts a due process claim” must “prove more than negligence but less than 7 subjective intent – something akin to reckless disregard.” Castro, 833 F.3d at 1071. 8 Constitutional deprivations that are the result of mere negligence or accident are not 9 actionable. Kingsley, 135 S. Ct. at 2472; see also Daniels v. Williams, 474 U.S. 327, 331- 10 32 (1986) (negligence does not translate to a due process violation even if it causes injury). 11 * * * * 12 For the reasons set forth herein, the Complaint is DISMISSED WITH LEAVE TO 13 AMEND. 14 If Plaintiff desires to pursue this action, he is ORDERED to file a First Amended 15 Complaint within thirty (30) days of the date of this Order, which remedies the deficiencies 16 discussed above. 17 If Plaintiff chooses to file a First Amended Complaint, it should: (1) bear the docket 18 number assigned in this case; (2) be labeled “First Amended Complaint"; (3) be filled out 19 exactly in accordance with the directions on the form; and (4) be complete in and of itself 20 without reference to the previous complaints or any other pleading, attachment or 21 document. The Clerk is directed to provide Plaintiff with a blank Central District of California 22 civil rights complaint form, which Plaintiff must fill out completely and resubmit. 23 /// 24 /// 25 /// 26 /// 27 /// 28 1 Plaintiff is admonished that, if he fails to file a First Amended Complaint by the 2 deadline set herein, the Court may recommend that this action be dismissed for 3 failure to prosecute and failure to comply with a Court order. 4 5 DATED: November 9, 2020 /s/ John E. McDermott 6 JOHN E. MCDERMOTT

UNITED STATES MAGISTRATE JUDGE

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