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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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9 10 RICHARD G. LOZANO, Case No. 5:21-cv-789-VAP (MAR) 11 Plaintiff, 12 v. FINAL REPORT AND

RECOMMENDATION OF UNITED

13 SAN BERNARDINO SHERIFF DEPT., STATES MAGISTRATE JUDGE 14 Defendant(s). 15 16 17 This Final1 Report and Recommendation is submitted to the Honorable 18 Virginia A. Phillips, United States District Judge, pursuant to 28 U.S.C. § 636 and 19 General Order 05-07 of the United States District Court for the Central District of 20 California. 21 I. 22 SUMMARY OF RECOMMENDATION 23 On April 22, 2021, Richard G. Lozano (“Plaintiff”), proceeding pro se and in 24 forma pauperis, constructively filed2 a Complaint (“Complaint”) pursuant to 28 U.S.C. 25

26 1 This Final Report and Recommendation is substantively unchanged from the original Report and 27 Recommendation except for footnote 3, which describes Plaintiff’s potential release or address change. 1 § 1983 (“section 1983”) against the San Bernardino Sheriff’s Department. 2 (“Defendant”). ECF Docket No. (“Dkt.”) 1. For the reasons discussed below, it is 3 recommended that this action be DISMISSED with prejudice for failure to state a 4 claim. 5 II. 6 BACKGROUND 7 A. Summary of the Complaint 8 Plaintiff, currently an inmate at Central Detention Center3 (“CDC”), alleges 9 that on February 22, 2021, he “fell out of a van after being transported from CDC to 10 West Valley D.C. in Rancho Cucamonga due to negligence of the Sheriff Dept. to 11 provide a step stool to step on when [Plaintiff was] exiting the vehicle.” Dkt. 1 at 1. 12 The Complaint contains just one (1) claim: that Defendant violated Plaintiff’s 13 “[Fourteenth Amendment right] to proper medical procedure.” Dkt. 1 at 6. 14 Plaintiff names the Defendant in its individual capacity and requests $15,000. Id. at 4, 15 7. 16 B. Order Dismissing Complaint with Leave to Amend 17 On May 27, 2021 the Court issued an Order Dismissing Complaint With Leave 18 to Amend (“ODLA”), finding the Complaint was subject to dismissal because (1) the 19 Complaint fails to state a cognizable section 1983 claim, (2) the Complaint fails to 20 comply with Federal Rule of Civil Procedure 8(a) (“Rule 8”), and (3) the Complaint 21 fails to state a claim under the Fourteenth Amendment. Dkt. 6 at 6–8. 22

23 Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”). 24 3 The mail containing the August 17, 2021 Report and Recommendation was returned to the Court. Dkts. 10; 11. Furthermore, a search on the San Bernardino County Sheriff’s Department (“SBSD”) 25 website indicates Plaintiff may no longer be in the custody of the SBSD. San Bernardino County Sheriff’s Department, “Inmate Locator,” Booking No. 2102341913, available at 26 https://wp.sbcounty.gov/sheriff/corrections/inmate-locator/ (last visited September 23, 2021). 27 Accordingly, Plaintiff may have been either been released or moved since his last correspondence with the court. As noted in the Court’s Initial Civil Rights Case Order, Plaintiff’s failure to inform 1 On June 8, 2021, Plaintiff filed a notice with the court that he intends to stand 2 on the allegations in his Complaint.4 Dkt. 7. 3 III. 4 STANDARD OF REVIEW 5 Where a plaintiff proceeds in forma pauperis, a court must screen the 6 complaint under 28 U.S.C. § 1915 and is required to dismiss the case at any time if it 7 concludes the action is frivolous or malicious, fails to state a claim on which relief may 8 be granted, or seeks monetary relief against a defendant who is immune from such 9 relief. 28 U.S.C. § 1915(e)(2)(B); see Barren v. Harrington, 152 F.3d 1193, 1194 (9th 10 Cir. 1998). 11 In determining whether a complaint fails to state a claim for screening 12 purposes, a court applies the same pleading standard as it would when evaluating a 13 motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)). 14 See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). A claim should be 15 dismissed under Rule 12(b)(6) if the plaintiff fails to proffer “enough facts to state a 16 claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has 17 facial plausibility when the plaintiff pleads factual content that allows the court to 18 draw the reasonable inference that the defendant is liable for the misconduct alleged.” 19 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 20 Dismissal for failure to state a claim can be warranted based on either a lack of 21 a cognizable legal theory or the absence of factual support for a cognizable legal 22

23 4 Plaintiff also requests appointment of counsel. There is no constitutional right to appointed counsel in civil rights actions. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). A court 24 has no direct way to pay appointed counsel and cannot compel an attorney to represent a plaintiff. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 301–10 (1989). In exceptional circumstances, a court 25 may request counsel to voluntarily provide representation. 28 U.S.C. § 1915(e)(1); see Mallard, 490 U.S. at 301–10. To decide whether “exceptional circumstances” exist, a court evaluates both the 26 likelihood of a plaintiff’s success on the merits and plaintiff’s ability to articulate claims pro se. 27 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff has failed to state a cognizable claim and therefore has no likelihood of success on 1 theory. See, e.g., Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th 2 Cir. 2008). A complaint may also be dismissed for failure to state a claim if it 3 discloses some fact or complete defense that will necessarily defeat the claim. 4 Franklin v. Murphy, 745 F.2d 1221, 1228–29 (9th Cir. 1984), abrogated on other 5 grounds by Neitzke v. Williams, 490 U.S. 319 (1989). Although the plaintiff must 6 provide “more than labels and conclusions,” Twombly, 550 U.S. at 555, “[s]pecific 7 facts are not necessary; the [complaint] need only give the defendant[s] fair notice of 8 what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 9 U.S. 89, 93 (2007) (per curiam) (citations and quotation marks omitted). 10 In considering whether a complaint states a claim, a court must accept as true 11 all of the material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892–93 12 (9th Cir. 2011). However, a court need not accept as true “allegations that are merely 13 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 14 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). The court must also 15 construe the pleading in the light most favorable to the pleading party and resolve all 16 doubts in the pleader’s favor. See, e.g., Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 17 2005). Pro se pleadings are “to be liberally construed” and are held to a less stringent 18 standard than those drafted by a lawyer. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 19 2010) (“Iqbal incorporated the Twombly pleading standard and Twombly did not 20 alter courts’ treatment of pro se filings; accordingly, we continue to construe pro se 21 filings liberally when evaluating them under Iqbal.”). 22 If a court finds the complaint should be dismissed for failure to state a claim, a 23 court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 24 F.3d 1122, 1126–30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it 25 appears possible the defects in the complaint could be corrected, especially if the 26 plaintiff is pro se. Id. at 1130–31; see also Cato v. United States, 70 F.3d 1103, 1106 27 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot 1 be cured by amendment, a court may dismiss without leave to amend. Cato, 70 F.3d 2 at 1105, 07–11. 3 IV. 4 DISCUSSION 5 A. THE COMPLAINT FAILS TO STATE A COGNIZABLE SECTION 6 1983 CLAIM 7 1. Applicable law 8 Municipalities and other local government units are considered “persons” 9 under § 1983 and therefore may be liable for causing a constitutional deprivation. 10 Long v. Cty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006) (citing Monell v. Dep't of 11 Soc. Servs., 436 U.S. 658, 690–91 (1978)). However, because no respondeat superior 12 liability exists under § 1983, a municipality is liable only for injuries that arise from an 13 official policy or longstanding custom. City of Canton v. Harris, 489 U.S. 378, 385 14 (1989) (citing Monell, 436 U.S. at 694). 15 To state a cognizable section 1983 claim against a municipality or local 16 government officer in his or her official capacity, a plaintiff must show the alleged 17 constitutional violation was committed “pursuant to a formal governmental policy or 18 a longstanding practice or custom which constitutes the ‘standard operating 19 procedure’ of the local governmental entity.” Gillette v. Delmore, 979 F.2d 1342, 20 1346 (9th Cir. 1992) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 21 (1989)) (quotation marks omitted). Proof of random acts or isolated events is 22 insufficient to establish a custom or practice. Thompson v. City of L.A., 885 F.2d 23 1439, 1444 (9th Cir. 1989), overruled on other grounds by Bull v. City & Cty. of San 24 Francisco, 595 F.3d 964 (9th Cir. 2010). Rather, a plaintiff must prove widespread, 25 systematic constitutional violations which have become the force of law. Board of 26 Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997). In addition, a 27 plaintiff must show the policy, practice or custom was: “(1) the cause in fact and (2) 1 the proximate cause of the constitutional deprivation.” Trevino v. Gates, 99 F.3d 2 911, 918 (9th Cir. 1996). 3 2. Analysis 4 Here, Plaintiff names as a Defendant, the San Bernardino Sheriff’s Department 5 (“SBSD”), a municipality, in its individual capacity only. Dkt. 1 at 4. However, the 6 SBSD is not an individual, and cannot be sued as such. See Oswald v. San Bernardino 7 Cty. Sheriff's Dep't, No. EDCV 1601150-DMG (DFM), 2016 WL 11621788, at *2 8 (C.D. Cal. Oct. 3, 2016) (“Insofar as Plaintiff is attempting to sue the Sheriff’s 9 Department in its individual capacity, the Sheriff’s Department is not an individual, 10 and cannot be sued as such.”). Accordingly, the Complaint fails to state a claim 11 against the Sheriff’s Department. 12 Even if the Court construes Plaintiff’s claim as an official capacity claim against 13 the SBSD as an entity, it must be dismissed because Plaintiff fails to allege any 14 widespread, systematic constitutional violations that have become the force of law or 15 formal governmental policy pursuant to which Defendant acted. Rather, Plaintiff 16 only challenges the SBSD’s conduct during a single, isolated incident. Dkt. 1 at 1. 17 Even taking Plaintiff’s allegations as true, proof of an isolated event is insufficient to 18 state an official capacity claim against SBSD. See Thompson, 885 F.2d at 1444. 19 Accordingly, Plaintiff has failed to state a cognizable section 1983 claim against 20 Defendant SBSD. 21 B. PLAINTIFF FAILS TO STATE A CLAIM UNDER THE 22 FOURTEENTH AMENDMENT 23 1. Applicable law 24 The Fourteenth Amendment governs claims for violations of the right to 25 adequate medical care brought by pretrial detainees. Gordon v. Cty. of Orange, 888 26 F.3d 1118, 1124–25 (9th Cir. 2018), cert. denied sub nom. Cty. of Orange, Cal. v. 27 Gordon, 139 S. Ct. 794 (2019). A claim of denial of the right to adequate medical care 1 indifference standard. Gordon, 888 F.3d at 1124–25. The elements of such a claim 2 are: 3 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions 4 put the plaintiff at substantial risk of suffering serious harm; (iii) the 5 defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have 6 appreciated the high degree of risk involved—making the consequences 7 of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries. 8 Id. 9 “With respect to the third element, the defendant’s conduct must be objectively 10 unreasonable, a test that will necessarily ‘turn[ ] on the facts and circumstances of each 11 particular case.’” Id. (quoting Castro v. County of Los Angeles, 833 F.3d 1060, 1071 12 (9th Cir. 2016)). The “‘mere lack of due care’” is insufficient. Gordon, 888 F.3d at 13 1124–25 (quoting Daniels v. Williams, 474 U.S. 327, 330–31 (1986)). A plaintiff must 14 “prove more than negligence but less than subjective intent – something akin to 15 reckless disregard.” Gordon, 888 F.3d at 1124–25; see also Sarkiss v. Duncan, No. 16 CV 17-06866-VAP (DFM), 2017 WL 10562979, at *6 (C.D. Cal. Sept. 22, 2017) (“[A] 17 claim of medical malpractice or mere negligence is insufficient to make out a 18 Fourteenth Amendment claim.”). 19 2. Analysis 20 Here, Plaintiff alleges Defendant has violated his Fourteenth Amendment right 21 to “proper medical procedure.”5 Dkt. 1 at 6. However, Plaintiff does not explain 22 how Defendant’s alleged failure to provide a step stool for exiting the bus relates to 23 24 5 Plaintiff fails to clarify whether the alleged fall occurred before or after he was convicted. 25 Therefore, it is not clear whether the Fourteenth Amendment standards apply or whether the often harder-to-prove Eighth Amendment “subjective” standard would apply. See Kingsley v. 26 Hendrickson, 576 U.S. 389 (2015) (noting the standard applicable to Fourteenth Amendment 27 excessive force cases is the same as the Fourth Amendment “objective” test, rather than the often harder-to-prove Eighth Amendment “subjective” standard). Nevertheless, because Plaintiff has 1 Plaintiff’s medical care. Nor does Plaintiff allege any facts about Defendant’s 2 conduct, other than their failure to provide a step stool. Accordingly, the Complaint, 3 as alleged, does not demonstrate that: (1) Defendant was aware of the risk in the first 4 place; (2) Defendant “made an intentional decision” that put Plaintiff at risk; or (3) 5 Defendant failed to take reasonable measures to abate that risk. See Gordon, 888 6 F.3d at 1124–25. 7 Furthermore, Plaintiff explicitly alleges only that he was injured “due to 8 negligence” on behalf of the SBSD. Dkt. 1 at 1. However, Plaintiff must prove 9 “more than negligence” to succeed on a deliberate indifference to medical needs 10 claim. Gordon, 888 F.3d at 1124–25. Therefore, even taking Plaintiff’s allegation of 11 negligence as true, he has failed to state a Fourteenth Amendment claim for 12 inadequate medical care. 13 C. THE COMPLAINT SHOULD BE DISMISSED WITHOUT LEAVE 14 TO AMEND 15 As discussed above, the Complaint fails to state a claim on which relief may be 16 granted. See above, subsections IV.A, IV.B. Despite being given an opportunity to 17 correct the specific deficiencies the Court identified in the ODLA, Dkt. 6, Plaintiff 18 declined to file an amended complaint and chose instead to “stand on the allegations 19 in [his] complaint.” Dkt. 7 at 1. 20 Plaintiff’s decision not to file an amended complaint shows leave to amend 21 would be futile. See Pearce v. LA Cty. Jail Peace Officer/Corr. Officer, No. CV 17- 22 8092 JLS (JC), 2018 WL 3339646, at *2 (C.D. Cal. July 5, 2018) (finding where 23 plaintiff is “unwilling to draft a complaint that states viable claims for relief [the 24 Court] deems such failure an admission that amendment is futile”). Accordingly, the 25 Complaint should be dismissed without leave to amend. See Ismail v. Cty. of Orange, 26 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012) (“[A] district court’s discretion over 27 amendments is especially broad ‘where the court has already given a plaintiff one or 1 | more opportunities to amend his complaint.”’) (quoting DCD Programs, Ltd. v. 2 | Leighton, 833 F.2d 183, 186 n.3 Oth Cir. 1987)). 3 V. 4 RECOMMENDATION 5 IT IS THEREFORE RECOMMENDED that the District Court issue an 6 | order: 7 (1) accepting this Report and Recommendation; and 8 (2) directing Judgment be entered dismissing this action with prejudice. 9 VI. 10 NOTICE 11 Reports and Recommendations are not appealable to the Court of Appeals, but 12 | may be subject to the right of any party to file objections as provided in the Local 13 | Rules Governing the Duties of Magistrate Judges and review by the District Judge 14 | whose initials appear in the docket number. No Notice of Appeal pursuant to the 15 | Federal Rules of Appellate Procedure should be filed until entry of the judgment of 16 | the District Court. 17 18 | Dated: September 30, 2021 LBA 19 ST 20 United States Magistrnte fudge 21 22 23 24 25 26 27 28