1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PETER JON ELLIS, No. 2:22-cv-0942 KJM DB PS 12 Plaintiff, 13 v. ORDER 14 COUNTY OF ELDORADO MENTAL

HEALTH DIVISION,

15 16 Defendant. 17 18 Plaintiff Peter Jon Ellis is proceeding in this action pro se. This matter was referred to the 19 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 20 before the court are plaintiff’s complaint, motion to proceed in forma pauperis pursuant to 28 21 U.S.C. § 1915, and motion to appoint counsel. (ECF Nos. 1-3.) The complaint alleges that 22 plaintiff was discriminated against as a result of a disability. 23 The court is required to screen complaints brought by parties proceeding in forma 24 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 25 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated 26 below, plaintiff’s complaint will be dismissed with leave to amend. 27 //// 28 //// 1 I. Plaintiff’s Application to Proceed In Forma Pauperis 2 Plaintiff’s in forma pauperis application makes the financial showing required by 28 3 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 4 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 5 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 6 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 7 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 8 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 9 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 11 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 12 District Court to examine any application for leave to proceed in forma pauperis to determine 13 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 14 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 15 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 16 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 17 state a claim on which relief may be granted, or seeks monetary relief against an immune 18 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 19 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 20 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 21 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 22 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 23 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 24 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 25 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 26 true the material allegations in the complaint and construes the allegations in the light most 27 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 28 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 1 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 2 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 3 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 4 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 5 The minimum requirements for a civil complaint in federal court are as follows: 6 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s 7 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 8 judgment for the relief the pleader seeks. 9 Fed. R. Civ. P. 8(a). 10 II. Plaintiff’s Complaint 11 Plaintiff’s complaint fails to contain a short and plain statement of a claim showing that 12 plaintiff is entitled to relief. In this regard, in a vague and conclusory manner the complaint 13 alleges simply that on March 14, 2022, plaintiff was seeking mental health treatment and that the 14 defendant discriminated against plaintiff by contacting “the Eldorado County Sherriff’s 15 Department.” (Compl. (ECF No. 1) at 5-6.) As a result, plaintiff “was taken to jail on an 16 unrelated matter[.]” (Id. at 6.) 17 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 18 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 19 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 20 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 21 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 22 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 23 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 24 557). A plaintiff must allege with at least some degree of particularity overt acts which the 25 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 26 It appears that the complaint is attempting to assert claims against the County of El 27 Dorado for violation of 42 U.S.C. § 1983, and the Americans with Disabilities Act. (Compl. 28 (ECF No. 1) at 7.) However, “[i]n Monell v. Department of Social Services, 436 U.S. 658 1 (1978), the Supreme Court held that a municipality may not be held liable for a § 1983 violation 2 under a theory of respondeat superior for the actions of its subordinates.”1 Castro v. County of 3 Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016). In this regard, “[a] government entity may not 4 be held liable under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be 5 shown to be a moving force behind a violation of constitutional rights.” Dougherty v. City of 6 Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell, 436 U.S. at 694). 7 In order to allege a viable Monell claim plaintiff “must demonstrate that an ‘official 8 policy, custom, or pattern’ on the part of [the defendant] was ‘the actionable cause of the claimed 9 injury.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) (quoting Harper v. City 10 of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008)). There are three ways a “policy” can be 11 established. See Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 2010). 12 “First, a local government may be held liable ‘when implementation of its official 13 policies or established customs inflicts the constitutional injury.’” Id. at 1249 (quoting Monell, 14 436 U.S. at 708 (Powell, J. concurring)). Second, plaintiff may allege that the local government 15 is liable for a policy of inaction or omission, for example when a public entity, “fail[s] to 16 implement procedural safeguards to prevent constitutional violations” or fails to adequately train 17 its employees. Tsao, 698 F.3d at 1143 (citing Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 18 1992)); see also Clouthier, 591 F.3d at 1249 (failure to train claim requires plaintiff show that 19 “the need for more or different training [was] so obvious, and the inadequacy so likely to result in 20 the violation of constitutional rights, that the policymakers . . . can reasonably be said to have 21 been deliberately indifferent to the need.”) (quoting City of Canton v. Harris, 489 U.S. 378, 390 22 (1989)); Long v. County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006) (“To impose 23 liability against a county for its failure to act, a plaintiff must show: (1) that a county employee 24 violated the plaintiff’s constitutional rights; (2) that the county has customs or policies that 25 amount to deliberate indifference; and (3) that these customs or policies were the moving force 26 behind the employee’s violation of constitutional rights.”). “Third, a local government may be 27 1 A county itself—not an agency or department—is a proper defendant for a 42 U.S.C. § 1983 28 claim. See Vance v. Cnty. of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996). 1 held liable under § 1983 when ‘the individual who committed the constitutional tort was an 2 official with final policy-making authority’ or such an official ‘ratified a subordinate’s 3 unconstitutional decision or action and the basis for it.’” Clouthier, 591 F.3d at 1250 (quoting 4 Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992)). 5 However, a complaint alleging a Monell violation “‘may not simply recite the elements of 6 a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and 7 to enable the opposing party to defend itself effectively.’” AE ex rel. Hernandez v. Cty. of 8 Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 9 2011)). At a minimum, the complaint should “identif[y] the challenged policy/custom, explain[ ] 10 how the policy/custom was deficient, explain[ ] how the policy/custom caused the plaintiff harm, 11 and reflect[ ] how the policy/custom amounted to deliberate indifference[.]” Young v. City of 12 Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009); see also Little v. Gore, 148 F.Supp.3d 936, 13 957 (S.D. Cal. 2015) (“Courts in this circuit now generally dismiss claims that fail to identify the 14 specific content of the municipal entity’s alleged policy or custom.”). 15 Here, the complaint fails to contain any allegations establishing a Monell violation. With 16 respect to the Americans with Disabilities Act, (“ADA”), Title II of the ADA prohibits a public 17 entity from discriminating against a qualified individual with a disability on the basis of 18 disability. 42 U.S.C. § 12132 (1994); Weinrich v. L.A. County Metro Transp. Auth., 114 F.3d 19 976, 978 (9th Cir.), cert. denied, 522 U.S. 971 (1997). 20 “Generally, public entities must ‘make reasonable modification in policies, practices, or 21 procedures when the modifications are necessary to avoid discrimination on the basis of 22 disability, unless the public entity can demonstrate that making the modifications would 23 fundamentally alter the nature of the service, program, or activity.’” Pierce v. County of Orange, 24 526 F.3d 1190, 1215 (9th Cir. 2008) (quoting 28 C.F.R. § 35.130(b)(7)). To state a claim under 25 Title II, the plaintiff must allege four elements: (1) the plaintiff is an individual with a disability; 26 (2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public 27 entity's services, programs, or activities; (3) the plaintiff was either excluded from participation in 28 or denied the benefits by the public entity; and (4) such exclusion, denial of benefits or 1 discrimination was by reason of the plaintiff’s disability. Simmons v. Navajo County, Ariz, 609 2 F.3d 1011, 1021 (9th Cir. 2010); McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 3 2004); Weinrich, 114 F.3d at 978. 4 Furthermore, “[t]o recover monetary damages under Title II of the ADA, a plaintiff must 5 prove intentional discrimination on the part of the defendant.” Duvall v. County of Kitsap, 260 6 F.3d 1124, 1138 (9th Cir. 2001). The standard for intentional discrimination is deliberate 7 indifference, “which requires both knowledge that a harm to a federally protected right is 8 substantially likely, and a failure to act upon that likelihood.” Id. at 1139. For a claim under the 9 ADA to be successful, the plaintiff must both “identify ‘specific reasonable’ and ‘necessary’ 10 accommodations that the state failed to provide” and show that the defendant’s failure to act was 11 “a result of conduct that is more than negligent, and involves an element of deliberateness.” Id. at 12 1140. Although “[t]he ADA prohibits discrimination because of disability,” it does not provide a 13 remedy for “inadequate treatment for disability.” Simmons, 609 F.3d at 1022 (citing Bryant v. 14 Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“[T]he Act would not be violated by a prison’s 15 simply failing to attend to the medical needs of its disabled prisoners . . . . The ADA does not 16 create a remedy for medical malpractice.”)). 17 Here, the complaint fails to contain any allegations establishing an ADA violation. 18 III. Leave to Amend 19 For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned 20 has carefully considered whether plaintiff may amend the complaint to state a claim upon which 21 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith, 22 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 23 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 24 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the 25 court does not have to allow futile amendments). 26 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 27 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 28 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 1 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. 2 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 3 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 4 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 5 1988)). 6 Here, the undersigned cannot yet say that it appears beyond doubt that leave to amend 7 would be futile. Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted 8 leave to file an amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file 9 an amended complaint “the tenet that a court must accept as true all of the allegations contained 10 in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause 11 of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. 12 “While legal conclusions can provide the complaint’s framework, they must be supported by 13 factual allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line 14 from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 15 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 16 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 17 in itself without reference to prior pleadings. The amended complaint will supersede the original 18 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 19 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 20 and identified in the body of the complaint, and each claim and the involvement of each 21 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 22 must also include concise but complete factual allegations describing the conduct and events 23 which underlie plaintiff’s claims. 24 IV. Motion to Appoint Counsel 25 Plaintiff is informed that federal district courts lack authority to require counsel to 26 represent indigent plaintiffs in civil cases. See Mallard v. United States Dist. Court, 490 U.S. 27 296, 298 (1989). The court may request the voluntary assistance of counsel under the federal in 28 forma pauperis statute, but only under exceptional circumstances. See 28 U.S.C. § 1915(e)(1); 1 | Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 2 | 1335-36 (9th Cir. 1990). The test for exceptional circumstances requires the court to evaluate the 3 | plaintiff's likelihood of success on the merits and the plaintiff's ability to articulate his or her 4 | claims. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 5 | F.2d 952, 954 (9th Cir. 1983). 6 Here, plaintiff's complaint has been dismissed with leave to amend. Accordingly, at this 7 | time, the undersigned cannot find that plaintiff is likely to succeed on the merits. Plaintiff's 8 | motion for appointment of counsel, therefore, will be denied without prejudice to renewal. 9 CONCLUSION 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. The complaint filed June 1, 2022 (ECF No. 1) is dismissed with leave to 12 | amend.” 13 2. Within twenty-eight days from the date of this order, an amended complaint shall be 14 | filed that cures the defects noted in this order and complies with the Federal Rules of Civil 15 || Procedure and the Local Rules of Practice.? The amended complaint must bear the case number 16 | assigned to this action and must be titled “Amended Complaint.” 17 3. Failure to comply with this order in a timely manner may result in a recommendation 18 | that this action be dismissed. 19 4. Plaintiffs June 1, 2022 motion to appoint counsel (ECF No. 3) is denied without 20 || prejudice to renewal. 21 | Dated: October 19, 2022 22 23 24 | DLB:6 UNITED STATES MAGISTRATE JUDGE 95 DB/orders/orders.pro se/ellisO942.dism.lta.ord

26 > Plaintiff need not file another application to proceed in forma pauperis at this time unless plaintiff's financial condition has improved since the last such application was submitted. 3 Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of 28 | voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.