1 2

3

4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 JOHN C. YOUNG, Case No. CV 20-9199-VBF (KK) 11 Plaintiff, 12 v. ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 13 LEVERT, ET AL.,

14 Defendant(s).

15 16 17 I. 18 INTRODUCTION 19 Plaintiff John C. Young (“Plaintiff”), a pretrial detainee proceeding pro se and 20 in forma pauperis, filed a Complaint pursuant to

(“Section 1983”) 21 for violations of his Fourth and Fourteenth Amendment rights. For the reasons 22 discussed below, the Court dismisses the Complaint with leave to amend. 23 II. 24 ALLEGATIONS IN THE COMPLAINT 25 On September 25, 2020, Plaintiff constructively filed1 the Complaint against 26 the County of Los Angeles, various “John Doe” defendants in their individual and 27 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading 1 official capacities (the “Doe defendants”), and the following eighteen employees of 2 the Los Angeles County Sheriff’s Department, each in their individual capacity: 3 Deputy Levert, Deputy Brown, Deputy Mendoza, Deputy Ramirez, Deputy Ayers, 4 Custody assistant Caulderon, Deputy O’Hern, Custody assistant Eisenhower, Deputy 5 Solano, Custody assistant Martinez, Deputy Petersen, Deputy Murcia, Deputy 6 Cococran, Nurse Ramos, Psychologist Sariono, Nurse Jackson, Sergeant Torres, and 7 Custody assistant Armstrong (collectively, “Defendants”). ECF Docket No. (“Dkt.”) 8 1 at 1-8. 9 The allegations in the Complaint are organized under two “claims” arising from 10 two periods of time when Plaintiff was in custody of the Los Angeles County Sheriff’s 11 Department as a pretrial detainee at Men’s Central Jail and/or Twin Towers 12 Correctional Facility in Los Angeles County,2 from approximately April 5, 2020 13 through April 13, 20203 (“Claim One”) and again from April 28, 2020 through May 9, 14 2020 (“Claim Two”).

. Plaintiff claims he 1) was subjected to inhumane and 15 punitive conditions of confinement in violation of the Fourteenth Amendment; 2) 16 received inadequate medical care in violation of the Fourteenth Amendment; and 3) 17 was denied the right to be presented before a magistrate judge for an arraignment or 18 probable cause hearing within forty-eight hours in violation of the Fourth 19 Amendment.

. Specifically, the Complaint sets forth the following 20 allegations: 21

22 Noelle,

(9th Cir. 2009) (stating the “mailbox rule applies to Section 1983 suits filed by pro se prisoners”). 23 2 Plaintiff refers to “Los Angeles County Jail” throughout the Complaint. Plaintiff 24 appears to be presently confined at Men’s Central Jail, but references being confined at the Twin Towers Correctional Facility, dkt. 1 at 10. Both facilities are located in 25 Los Angeles and operated by the Los Angeles Sheriff’s Department. 3 On page 3 of the Complaint, Plaintiff lists the dates of Claim One as “5/5/20 – 26 5/13/20” and Claim Two as “5/25/20 – 6/9/20”. Dkt. 1 at 3. These dates appear to be erroneous because Plaintiff later describes the events in Claim One as beginning on 27 April 5, 2020, the date of Plaintiff’s arrest, and continuing over an eight day period. 1 A. CLAIM ONE 2 On April 5, 2020, Plaintiff was arrested by the Los Angeles Police Department 3 (“LAPD”). Id. at 9. Plaintiff sustained injuries during the arrest and underwent 4 surgery at a hospital. Id. While Plaintiff was still unconscious and “heavily 5 medicated,” he was transferred by the LAPD into the custody of the Los Angeles 6 Sheriff’s Department at “Module 172” of Twin Towers Correctional Facility. Id. at 7 10. When Plaintiff regained consciousness, he found himself in a dirty cell without a 8 mattress, blanket, or his clothes, which had been replaced with a blue padded gown. 9 Id. The cell had “dried up human excrement on two of the walls”; discarded rotten 10 food bits “caked into the corners of the cell, creating a gut-wrenching odor”; no trash 11 receptacle; and cold air blasting out of the vents. Id. at 9-10. 12 In the next few days in Module 172 “during which COVID-19 was active,” 13 Plaintiff was denied a shower, toothpaste, toothbrush, toilet paper, soap, towel, and 14 underwear. Id. at 10. Plaintiff did not receive “yard or dayroom time, etc.” and did 15 not receive dinner a total of “three out of the eight nights” while he was in Module 16 172. Id. Plaintiff alleges multiple defendants were aware of these deprivations 17 because they were patrolling Floor 172 and heard Plaintiff’s requests during this time 18 period, but failed to assist. 19 Specifically, Defendant Levert came to Plaintiff’s cell when Plaintiff regained 20 consciousness and was banging on the cell’s windows and door and “calling out” to 21 passing jail staff to seek help understanding the nature of his arrest. Id. at 10. 22 Defendant Levert entered Module 172 and began taping plastic bags to the windows 23 of Plaintiff’s cell, saying “You talk too fucken much. Fuck around and won’t get your 24 lunch, fucking with me” and told Plaintiff “now you gotta get down there to talk to 25 me,” pointing to a small opening left at the bottom of the windows. Id. at 10-11. 26 Defendant Levert did not give Plaintiff dinner on the “second and fourth night in that 27 module.” Id. at 11. Plaintiff suffers from high blood pressure, and Defendant Levert 1 “persuade[d] the nurse from giving [Plaintiff] his medication” by telling the nurse 2 “this is the gasser.” Id. at 11. 3 Plaintiff asked Defendant Brown for the “items” (e.g. a shower, basic hygiene 4 items such as soap and a toothbrush, yard and dinner), but defendant Brown refused 5 and called Plaintiff a “bitch” and “mark.” Id. at 11. 6 Defendant Mendoza also refused to provide the items or provide Plaintiff a 7 grievance form, and instead insulted Plaintiff and “pound[ed] on the panel of the cell” 8 to wake Plaintiff when he was sleeping. Id. at 11-12. Defendant Mendoza denied 9 Plaintiff dinner on the third night in Module 172 put placed it outside Plaintiff’s cell 10 so Plaintiff could see it. Id. at 12. 11 Defendant Caulderon ignored Plaintiff’s requests for the items described above 12 and laughed when Plaintiff requested a grievance form. Id. 13 Defendant O’Hern walked past Plaintiff’s cell and denied Plaintiff “all the 14 items” listed above. Id. 15 Defendant Martinez denied Plaintiff’s requests and ignored his “desperate pleas 16 for help.” Id. at 13. 17 Defendant Ayers also denied Plaintiff’s requests. Id. 18 Plaintiff alleges the actions of defendants Levert, Brown, Mendoza, Caulderon, 19 O’Hern, Martinez, Ayers and various Doe defendants subjected Plaintiff to “cruel and 20 unusual conditions of confinement that served no penological objective” and 21 constituted deliberate indifference to “sub-standard, consci[ence]-shocking” 22 conditions of confinement. Id. at 15-16. Plaintiff alleges the Doe defendants, who 23 were employed as a “supervisor, doctor, nurse, deputy, etc.” by Los Angeles County 24 but whose identities Plaintiff could not identify due to the plastic bags covering his 25 windows, are “equally liable.” Id. at 16. 26 Additionally, when Plaintiff first arrived in Module 172, defendant Nurse 27 Ramos, the head nurse on Floor 172, approached Plaintiff after he “loud[ly] and 1 Nurse Ramos stated she would order Plaintiff a chest x-ray to test for tuberculosis 2 before Plaintiff would be released into general population. Id. at 14. Several hours 3 later, Plaintiff became “agitated” because no one had come to check on him. Id. 4 Plaintiff “caught” defendant Nurse Ramos’s attention and defendant Nurse Ramos 5 “became angry,” “promis[ed] retribution,” and walked away. Id. In the subsequent 6 eight days, Plaintiff alleges defendant Nurse Ramos insulted and taunted Plaintiff and 7 did not administer his medication. Id. at 16. Defendant Nurse Jackson was also 8 stationed on Floor 172 and “never once gave [Plaintiff] his medication the entire time 9 he was there” and would “simply walk pas[t] the strange cell with the plastic taped 10 over the window.” Id. at 15. Plaintiff alleges defendants Nurse Ramos’ and Nurse 11 Jackson’s “negligence” and “repeated[] fail[ure]” to give Plaintiff his high blood 12 pressure medication constituted deliberate indifference to his serious medical need in 13 violation of the Fourteenth Amendment. Id. at. 16. 14 Plaintiff also alleges that during his pretrial detention in Module 172, he was 15 not delivered to his arraignment or probable cause determination in violation of the 16 Fourth Amendment. Id. at 10. Plaintiff sues defendant County of Los Angeles, 17 alleging the County maintains a “policy, practice and custom whereby . . . inmates are 18 regularly not delivered to their arraignment or a probable cause determination 19 hearing.” Id. at 15. Plaintiff alleges the County of Los Angeles maintains “policies, 20 practices and customs by which if an employee at the inmate reception feels offended 21 by an arriving inmate[, then] – with the endorsement of the psychologist, or under the 22 guise of ‘refusing’ a chest x-ray – [the inmate] is carried off to the suicide ward and 23 denied all the items listed [above]” and is denied a probable cause hearing. Id. at 15. 24 Plaintiff states this practice is so popular that it is referred to as “being ‘pencil 25 fucked’” and put in a “samara [sic] suit.” Id. 26 Plaintiff was released from pretrial detention on April 27, 2020. Id. at 24. 27 /// 1 B. CLAIM TWO 2 Plaintiff’s release was “short lived,” and he was once again arrested on April 28, 3 2020, returned to the custody of the Los Angeles Sheriff’s Department, and classified 4 as a K-10 inmate. Id. at 17. Plaintiff was placed in a holding cell for six hours, during 5 which time medical staff, including defendant Psychologist Sariono, came to speak 6 with Plaintiff and check his vitals. Id. Medical staff then left because Plaintiff “was 7 upset at having spent six hours in the cell.” Id. Defendant Torres then came to the 8 cell and informed Plaintiff the “psychologist and ‘vital-signs’ nurse had marked him 9 down as refusing to talk to them.” Id. Plaintiff responded that was not true, and he 10 was “willing to adhere to whatever step was necessary to avoid” being confined in 11 Module 172. Id. at 17-18. 12 Defendant Psychologist Sariono came back to Plaintiff’s cell multiple times and 13 attempted to ask Plaintiff a “series of questions,” which were recorded. Id. at 18-19. 14 Plaintiff became irritated with her “condescending and provocative tone” and 15 defendant Sariono eventually stated in the recording that Plaintiff was refusing to 16 cooperate, which Plaintiff alleges was a “pretext for the extraction of an inmate that 17 was perfectly willing to cooperate.” Id. at 19. Plaintiff alleges defendant Sariono’s 18 actions constituted “deliberate indifference in her unnecessary and wanton infliction 19 of pain” and “medical mistreatment of serious medical needs.” Id. at 7. 20 Defendant Sergeant Torres came to the holding cell. Id. at 19. Plaintiff told 21 defendant Torres he had an arraignment on April 30, 2020. Id. Defendant Torres 22 escorted Plaintiff into a medical room where a nurse took his vitals, blood pressure 23 and administered his high-blood pressure pill. Id. Plaintiff was then “escorted out of 24 the medical room, and with the ‘x-ray room’ a few feet away, he was instructed to sit 25 on the floor where his legs were wrapped” and “placed in a wheel-chair like device 26 and hauled off to Module 172.” Id. at 20. 27 Defendant Ayers received Plaintiff at the base of the Twin Towers section of 1 and defendant Ayers said it “depended on whether he . . . had a chest x-ray.” Id. at 2 20. Plaintiff was then “wheeled off the elevator, pinned to the dirty floor by six 3 deputies and stripped naked.” Id. 4 During his time in Module 172, Plaintiff was again “denied a mattress, 5 toothpaste and [tooth]brush, face mask, toilet paper, towel, soap, underwear, dinner 6 five out of nine nights there; a blanket; a trash receptacle or trash pick up his entire 7 time there; a cell free of human excrement on the walls; cleaning supplies; his 8 medication and subject to some of the most punitive, consc[ience]-shocking treatment 9 any American – pretrial detainee or not – should ever be subjected to.” Id. at 21. 10 Plaintiff alleges multiple defendants were aware of these deprivations but failed to 11 assist. 12 Specifically, defendant Brown was among the deputies who “pinned” Plaintiff 13 and cut off his clothes. Id. at 21. Defendant Brown told Plaintiff “welcome back to 14 my house, bitch.” Id. Defendant Brown was also aware of Plaintiff being denied the 15 items listed above (e.g. a shower, basic hygiene items such as soap and a toothbrush, 16 yard and dinner), but “did nothing to assist . . . those punitive conditions of 17 confinement.” Id. 18 Defendant Levert again taped plastic bags on the windows of Plaintiff’s cell; 19 did not feed Plaintiff dinner on his first, second, fourth and seventh night in Module 20 172; and used “lies and manipulation to usher nurses past the Plaintiff’s cell without 21 giving him his medication.” Id. 22 Defendant Solano threw Plaintiff’s dinner on the floor “through the tray slot” 23 on his third night in Module 172 and banged on Plaintiff’s cell every time Plaintiff was 24 asleep. Id. at 21-22. When Plaintiff stated his intention to file a complaint, defendant 25 Solano replied, “don’t be a fucken bitch. You know how many of those end up in the 26 fucken trash can around here?” Id. at 22. 27 Defendants Peterson, Armstrong, Eisenhower, Murcia, and Cococran were all 1 were either “personally asked” for the items Plaintiff was derived of, or were “aware 2 of all the Plaintiff’s deprivations” because they observed his conditions in the cell on 3 their patrols. Id. 4 Plaintiff alleges the actions of defendants Torres, Brown, Ayers, Levert, Solano, 5 Peterson, Armstrong, Eisenhower, Murcia, Cococran, and Doe defendants 6 constituted deliberate indifference to “oppressive conditions of confinement” that 7 were punitive and served “no legitimate objective.” Id. at 23. 8 Plaintiff also alleges he was again “not delivered before a magistrate within the 9 forty-eight hour time provision” pursuant to the County of Los Angeles’s 10 “regulations, usage, practice, policies, etc.” in violation of the Fourth Amendment. Id. 11 Plaintiff alleges Defendants’ actions caused “humiliation, stress, mental 12 anguish, pain and suffering, to contemplate suicide”; “stress and anxiety”; and 13 exposed him to “life-altering viruses and diseases” due to the existence of COVID-19. 14 Id. at 16, 23. Plaintiff seeks compensatory and punitive damages. Id. at 26. 15 III. 16 STANDARD OF REVIEW 17 Where a plaintiff is proceeding in forma pauperis, a court must screen the 18 complaint under

and is required to dismiss the case at any time if it 19 concludes the action is frivolous or malicious, fails to state a claim on which relief may 20 be granted, or seeks monetary relief against a defendant who is immune from such 21 relief.

(e)(2)(B); see also Barren v. Harrington,

, 1194 22 (9th Cir. 1998). 23 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a 24 “short and plain statement of the claim showing that the pleader is entitled to relief.” 25 FED. R. CIV. P. 8(a)(2). In determining whether a complaint fails to state a claim for 26 screening purposes, a court applies the same pleading standard as it would when 27 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See 1 A complaint may be dismissed for failure to state a claim “where there is no 2 cognizable legal theory or an absence of sufficient facts alleged to support a 3 cognizable legal theory.” Zamani v. Carnes,

(9th Cir. 2007). In 4 considering whether a complaint states a claim, a court must accept as true all of the 5 material factual allegations in it. Hamilton v. Brown,

(9th Cir. 6 2011). The court, however, need not accept as true “allegations that are merely 7 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 8 Gilead Scis. Sec. Litig.,

(9th Cir. 2008). Although a complaint 9 need not include detailed factual allegations, it “must contain sufficient factual matter, 10 accepted as true, to state a claim to relief that is plausible on its face.” Cook v. 11 Brewer,

(9th Cir. 2011) (quoting Ashcroft v. Iqbal,

, 12 678 (2009)). A claim is facially plausible when it “allows the court to draw the 13 reasonable inference that the defendant is liable for the misconduct alleged.”

The 14 complaint “must contain sufficient allegations of underlying facts to give fair notice 15 and to enable the opposing party to defend itself effectively.” Starr v. Baca,

(9th Cir. 2011). 17 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, 18 however inartfully pleaded, must be held to less stringent standards than formal 19 pleadings drafted by lawyers.’” Woods v. Carey,

(9th Cir. 2008). 20 Liberal construction, however, should only be afforded to “a plaintiff’s factual 21 allegations,” Neitzke v. Williams,

, 330 n.9 (1989), and a court need not 22 accept as true “unreasonable inferences or assume the truth of legal conclusions cast 23 in the form of factual allegations,” Ileto v. Glock Inc.,

(9th Cir. 24 2003). 25 If a court finds the complaint should be dismissed for failure to state a claim, 26 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 27

(9th Cir. 2000). Leave to amend should be granted if it 1 plaintiff is pro se.

; see also Cato v. United States,

, 1106 2 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot 3 be cured by amendment, the court may dismiss without leave to amend. Cato, 70 4 F.3d at 1107-11; see also Moss v. U.S. Secret Serv.,

(9th Cir. 2009). 5 IV. 6 DISCUSSION 7 A. PLAINTIFF’S FOURTH AMENDMENT CLAIM IS NOT 8 PROPERLY BROUGHT PURSUANT TO SECTION 1983 AND IS 9 HECK BARRED 10 1. Applicable Law 11 The Fourth Amendment “requires a prompt judicial determination of probable 12 cause following an arrest made without a warrant and ensuing detention.” Powell v. 13 Nevada,

(1994). An arrestee “is entitled under the Fourth 14 Amendment to a hearing at which he is presented with the probable cause of his 15 arrest within forty-eight hours of the arrest.” Benson v. Chappell,

, 823 16 (9th Cir. 2020). “[A]bsent extraordinary circumstances, a longer delay violates the 17 Fourth Amendment.” Powell,

. 18 A petition for a writ of habeas corpus “is the exclusive remedy for a state 19 prisoner who challenges the fact or duration of his confinement.” Heck v. 20 Humphrey,

(1994). Under Heck, a claim that “necessarily implie[s] 21 the invalidity of [a] conviction or sentence [may] not be maintained under § 1983 22 unless the [plaintiff] proved ‘that the conviction or sentence has been reversed on 23 direct appeal, expunged by executive order, declared invalid by a state tribunal 24 authorized to make such determination[s], or called into question by a federal court’s 25 issuance of a writ of habeas corpus.’” Nonnette v. Small,

(9th Cir. 26 2002) (quoting Heck,

); see also Wilkinson v. Dotson,

, 27 81-82 (2005) (“[A] state prisoner’s § 1983 action is barred” if “success in that action 1 would necessarily demonstrate the invalidity of confinement or its duration,” except 2 where the prisoner’s continuing confinement has already been invalidated.). 3 2. Analysis 4 Here, Plaintiff sues the County of Los Angeles for violating Plaintiff’s Fourth 5 Amendment right to be presented before a magistrate within forty-eight hours of 6 arrest. Dkt. 1 at 1. Plaintiff alleges his Fourth Amendment rights were violated twice: 7 first with respect to his April 5, 2020 detention, and then again with respect to April 8 27, 2020 detention. By arguing he was denied an arraignment or probable cause 9 hearing, Plaintiff’s claim seeks to challenge the “fact or duration” of Plaintiff’s 10 confinement and must be brought in a petition for habeas corpus. See Heck,

at 481; Wilkinson,

(finding a claim “necessarily spell[ing] speedier 12 release” “lies at the core” of habeas relief, and not Section 1983 relief); Butterfield v. 13 Bail,

(9th Cir. 1997) (finding “[i]f the court concludes that the 14 challenge would necessarily imply the invalidity of the judgment or continuing 15 confinement, then the challenge must be brought as a petition for a writ of habeas 16 corpus, not under § 1983”); Tarabochia v. Clatsop Cnty., Or.,

(D. Or. 17 Jan. 3, 2013), vacated in part on other grounds, remanded sub nom. Tarabochia v. 18 Clatsop Cnty., Or.,

(9th Cir. 2016) (“[A] finding by this court that 19 defendants violated plaintiff’s constitutional rights by denying him a timely 20 preliminary hearing or probable cause hearing would arguably constitute grounds for 21 invalidating plaintiff’s conviction. Therefore, plaintiff’s [claim] is properly brought as a 22 petition for habeas corpus relief under

.”). 23 In addition, Plaintiff fails to demonstrate his underlying convictions have been 24 invalidated. Plaintiff’s Fourth Amendment claim is, therefore, barred under Heck. 25 See Heck,

. 26 Accordingly, Plaintiff’s Fourth Amendment claim against the County of Los 27 Angeles is subject to dismissal. 1 B. PLAINTIFF FAILS TO STATE A FOURTH AMENDMENT CLAIM 2 AGAINST THE COUNTY OF LOS ANGELES 3 1. Applicable Law 4 A municipality “may not be sued under § 1983 for an injury inflicted solely by 5 its employees or agents. Instead, it is when execution of a government’s policy or 6 custom, whether made by its lawmakers or by those whose edicts or acts may fairly be 7 said to represent official policy, inflicts the injury that the government as an entity is 8 responsible under § 1983.” Monell v. Dep’t of Soc. Servs. of City of N.Y.,

658, 694 (1978). An “official-capacity suit is, in all respects other than name, to be 10 treated as a suit against the entity.” Kentucky v. Graham,

(1985); 11 see also Brandon v. Holt,

(1985); Larez v. City of Los Angeles, 12

(9th Cir. 1991). Such a suit “is not a suit against the official 13 personally, for the real party in interest is the entity.” Graham,

. 14 To state a cognizable Section 1983 claim against a municipality or local 15 government officer in his or her official capacity, a plaintiff must show the alleged 16 constitutional violation was committed “pursuant to a formal governmental policy or 17 a ‘longstanding practice or custom which constitutes the “standard operating 18 procedure” of the local governmental entity.’” Gillette v. Delmore,

, 19 1346 (9th Cir. 1992). Proof of random acts or isolated events is insufficient to 20 establish a custom or practice. Thompson v. City of L.A.,

(9th 21 Cir. 1989). Rather, a plaintiff must prove widespread, systematic constitutional 22 violations which have become the force of law. Board of Cnty. Comm’rs of Bryan 23 Cnty. v. Brown,

(1997). In addition, a plaintiff must show the 24 policy, practice, or custom was “(1) the cause in fact and (2) the proximate cause of 25 the constitutional deprivation.” Trevino v. Gates,

(9th Cir. 1996). 26 2. Analysis 27 Here, even if Plaintiff’s Fourth Amendment claim against the County of Los 1 probable cause hearing was pursuant to a formal governmental policy or a 2 “longstanding practice or custom” of the County of Los Angeles. Plaintiff alleges this 3 “deprivation was pursuant to [Los Angeles] County’s regulations, usage, practice, 4 policies, etc.” Dkt. 1 at 15. While not entirely clear, it appears Plaintiff is arguing the 5 County of Los Angeles maintains a policy where if “an employee at the inmate 6 reception feels offended by an arriving inmate,” that inmate is “carried off to the 7 suicide ward” and cannot leave. Id. at 15. This occurs by way of “endorsement of 8 the psychologist, or under the guise of ‘refusing’ a chest x-ray.” Id. Plaintiff states 9 this practice is so popular that it is called “being ‘pencil fucked’” and put in a “samara 10 [sic] suit.” Id. at 15. 11 Plaintiff’s conclusory allegations are insufficient to state a Section 1983 claim 12 against the County of Los Angeles. While Plaintiff was apparently twice confined to 13 Module 172 and did not attend his probable cause hearing, these instances appear to 14 be isolated events and do not demonstrate a widespread, systematic violation which 15 have become the force of law. Brown,

. 16 Accordingly, Plaintiff’s Fourth Amendment claim against the County of Los 17 Angeles is subject to dismissal. 18 C. PLAINTIFF FAILS TO STATE A FOURTEENTH AMENDMENT 19 INADEQUATE MEDICAL CARE CLAIM AGAINST DEFENDANTS 20 NURSE RAMOS, NURSE JACKSON, OR PSYCHOLOGIST 21 SARIONO 22 1. Applicable Law 23 The Fourteenth Amendment, rather than the Eighth Amendment, governs 24 claims for violations of the right to adequate medical care brought by pretrial 25 detainees. Gordon v. Cnty. of Orange,

(9th Cir. 2018), cert. 26 denied sub nom. Cnty. of Orange, Cal. v. Gordon,

(2019). A claim of 27 denial of the right to adequate medical care under the Fourteenth Amendment is 1 analyzed under an objective deliberate indifference standard, not a subjective 2 standard.

The elements of such a claim are: 3 (i) the defendant made an intentional decision with respect to the 4 conditions under which the plaintiff was confined; (ii) those conditions 5 put the plaintiff at substantial risk of suffering serious harm; (iii) the 6 defendant did not take reasonable available measures to abate that risk, 7 even though a reasonable official in the circumstances would have 8 appreciated the high degree of risk involved—making the consequences 9 of the defendant’s conduct obvious; and (iv) by not taking such 10 measures, the defendant caused the plaintiff’s injuries. 11

12 “With respect to the third element, the defendant’s conduct must be objectively 13 unreasonable, a test that will necessarily ‘turn[ ] on the facts and circumstances of each 14 particular case.’”

(quoting Castro v. Cnty of Los Angeles,

, 1071 15 (9th Cir. 2016)). The “‘mere lack of due care’” is insufficient.

(quoting Daniels v.

U.S. 327, 330-31 (1986)). A plaintiff must “prove more than negligence 17 but less than subjective intent – something akin to reckless disregard.”

18 2. Analysis 19 a. Defendants Nurse Ramos and Nurse Jackson 20 In Claim One, Plaintiff alleges defendant Nurse Ramos insulted and taunted 21 Plaintiff and did not administer his high blood pressure medication for a period of 22 eight days while he was in Module 172. Dkt. 1 at 16. Plaintiff also alleges defendant 23 Nurse Jackson was stationed on Floor 172 and “never once gave [Plaintiff] his 24 medication the entire time he was there” and would “simply walk pas[t]” his cell.

25 at 15. Plaintiff, however, has failed to explain how either defendant Nurse Ramos or 26 defendant Nurse Jackson made an intentional decision putting Plaintiff at a 27 “substantial risk of suffering serious harm.” Gordon,

. 1 or defendant Nurse Jackson was aware Plaintiff had a high blood pressure condition; 2 Plaintiff required medication; or whether Plaintiff in fact was prescribed and regularly 3 taking a specific medication that was intentionally denied. Additionally, Plaintiff has 4 not alleged facts showing he suffered any harm or injury. See

5 Plaintiff has therefore not shown the actions of defendant Nurse Ramos or 6 defendant Nurse Jackson were objectively unreasonable. Accordingly, Plaintiff’s 7 Fourteenth Amendment claim against defendants Nurse Ramos and Nurse Jackson is 8 subject to dismissal. 9 b. Defendant Sariono 10 In Claim Two, Plaintiff alleges defendant Sariono came to Plaintiff’s holding 11 cell and attempted to interview him upon his arrival at the prison. Dkt. 1 at 17. 12 Defendant Sariono returned to Plaintiff’s cell multiple times to ask questions but 13 Plaintiff became irritated with her “condescending and provocative tone.”

at 17- 14 19. Though not entirely clear, it appears Plaintiff alleges defendant Sariono was using 15 a “pretext” to “extract[]” Plaintiff and presumably assign him to Module 172 against 16 his wishes by stating Plaintiff was refusing to cooperate. Id. at 19. 17 Plaintiff has not demonstrated any element of a Fourteenth Amendment claim 18 against defendant Sariono. Plaintiff has not alleged facts making it plausible that 19 defendant Sariono’s attempts to interview him, or statement that he was refusing to 20 cooperate, constitute an “intentional decision” with respect to Plaintiff’s conditions of 21 confinement which put Plaintiff “at substantial risk of suffering serious harm.” 22 Gordon,

. Moreover, Plaintiff has not alleged facts showing 23 defendant Sariono’s actions were objectively unreasonable. Plaintiff, in fact, concedes 24 he became angry with defendant Sariono and she left his cell multiple times, causing 25 Plaintiff to eventually be escorted out by defendant Torres. Plaintiff also fails to 26 allege he suffered any injury under defendant Sariono’s care or direction.

To the 27 extent Plaintiff attempts to argue defendant Sariono caused Plaintiff “injury” by 1 sending him to Module 172, Plaintiff has failed to demonstrate this decision was 2 objectively unreasonable. 3 Accordingly, Plaintiff’s Fourteenth Amendment claim against defendant 4 Sariono is subject to dismissal. 5 D. PLAINTIFF’S FOURTEENTH AMENDMENT CLAIMS FOR 6 COMPENSATORY DAMAGES ARE BARRED BY THE PLRA 7 BECAUSE HE FAILS TO ALLEGE PHYSICAL INJURY 8 1. Applicable Law 9 The Prison Litigation Reform Act (“PLRA”) provides that “[n]o Federal civil 10 action may be brought by a prisoner confined in jail, prison, or other correctional 11 facility, for mental and emotional injury suffered while in custody without a prior 12 showing of physical injury.” 42 U.S.C. § 1997e(e). This physical injury requirement 13 applies only to claims for mental or emotional injury and it does not bar claims for 14 compensatory, nominal, or punitive damages which are not premised on mental or 15 emotional injury. Oliver v. Keller,

(9th Cir. 2002). 16 To satisfy this requirement, the physical injury “need not be significant but 17 must be more than de minimis.”

. However, “the absence of an observable 18 medical condition requiring treatment by a medical professional does not necessarily 19 render Plaintiff’s injuries de minimis.” Monclova-Chavez v. McEachern, No. 1:08- 20 CV-00076-AWI,

, at *6 (E.D. Cal. Jan. 5, 2011), report and 21 recommendation adopted,

(E.D. Cal. Mar. 17, 2011) (finding 22 “[e]ven if Plaintiff did not suffer any diagnosable injury that necessitated medical 23 treatment, Plaintiff’s alleged injuries [of bruises on his right shoulder, right arm, and 24 hands, weakness and numbness in the right arm and shoulder] are more than de 25 minimis”). 26 2. Analysis 27 Here, Plaintiff fails to allege he suffered any physical injuries. To the extent 1 for emotional injuries are barred by the PLRA. Oliver,

; Phillips v. 2 Cnty. of Riverside, No. 5-19-CV-01518-VAP-MAA,

, at *12 (C.D. 3 Cal. July 24, 2020) (finding prisoner’s Fourteenth Amendment claim regarding 4 conditions of confinement that did “not allege any physical injuries arising out of any 5 of the conditions of confinement” did not satisfy the “physical injury” requirement of 6 Section 1997e(e)). 7 E. PLAINTIFF’S CLAIMS AGAINST THE DOE DEFENDANTS ARE 8 SUBJECT TO DISMISSAL 9 1. Applicable Law 10 To state a Section 1983 claim against a defendant for violation of civil rights 11 under Section 1983, a plaintiff must allege that the defendant deprived him or her of a 12 right guaranteed under the Constitution or a federal statute. See West v. Atkins, 487

(1988); Karim-Panahi v. Los Angeles Police Dep’t,

, 624 (9th 14 Cir. 1998). A plaintiff must present facts showing how a particular defendant was 15 directly and personally involved in inflicting the alleged injury. See Iqbal,

676. Moreover, although a complaint need not include detailed factual allegations, it 17 “must contain sufficient factual matter, accepted as true, to state a claim to relief that 18 is plausible on its face.” Cook,

(quoting Iqbal,

). 19 2. Analysis 20 Here, Plaintiff makes no specific allegations against any of the Doe 21 defendants, merely arguing they are “equally liable.” Dkt. 1 at 16. Plaintiff’s 22 barebones assertions that various other defendants employed as “supervisor, doctor, 23 nurse, deputy, etc.” by Los Angeles County, but whose identities Plaintiff couldn’t 24 determine, fails to set forth specific allegations.

Plaintiff must allege specific facts 25 showing how each Doe defendant was directly and personally involved in inflicting 26 the alleged constitutional injury. See Iqbal,

(“[A] plaintiff must plead 27 that each Government-official defendant, through the official’s own individual 1 Accordingly, Plaintiff’s claims against the Doe defendants are subject to 2 dismissal.

LEAVE TO FILE A FIRST AMENDED COMPLAINT 5 For the foregoing reasons, the Complaint is subject to dismissal. As the Court 6 is unable to determine whether amendment would be futile, leave to amend is granted. 7 See Lucas v. Dep’t of Corr.,

(9th Cir. 1995) (per curiam). Plaintiff is 8 advised that the Court’s determination herein that the allegations in the Complaint are 9 insufficient to state a particular claim should not be seen as dispositive of that claim. 10 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual 11 matter in the pleading, accepted as true, to state a claim to relief that is viable on its 12 face, Plaintiff is not required to omit any claim in order to pursue this action. 13 However, if Plaintiff asserts a claim in Plaintiff’s First Amended Complaint that has 14 been found to be deficient without addressing the claim’s deficiencies, then the Court, 15 pursuant to the provisions of

, ultimately will submit to the assigned 16 district judge a recommendation that such claim be dismissed with prejudice for 17 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with 18 the district judge as provided in the Local Rules Governing Duties of Magistrate 19 Judges. 20 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the 21 service date of this Order, Plaintiff choose one of the following two options: 22 1. Plaintiff may file a First Amended Complaint to attempt to cure the 23 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a blank 24 Central District civil rights complaint form to use for filing the First Amended 25 Complaint, which the Court encourages Plaintiff to use. 26 If Plaintiff chooses to file a First Amended Complaint, Plaintiff must clearly 27 designate on the face of the document that it is the “First Amended Complaint,” it 1 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not 2 include new defendants or allegations that are not reasonably related to the claims 3 asserted in the Complaint. In addition, the First Amended Complaint must be 4 complete without reference to the Complaint, or any other pleading, attachment, or 5 document. 6 An amended complaint supersedes the preceding complaint. Ferdik v. 7 Bonzelet,

(9th Cir. 1992). After amendment, the Court will treat 8 all preceding complaints as nonexistent.

Because the Court grants Plaintiff 9 leave to amend as to all claims raised here, any claim raised in a preceding 10 complaint is waived if it is not raised again in the First Amended Complaint. 11 Lacey v. Maricopa Cnty.,

(9th Cir. 2012). 12 The Court advises Plaintiff that it generally will not be well-disposed toward 13 another dismissal with leave to amend if Plaintiff files a First Amended Complaint 14 that continues to include claims on which relief cannot be granted. “[A] district 15 court’s discretion over amendments is especially broad ‘where the court has already 16 given a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cnty. 17 of Orange,

(C.D. Cal. 2012); see also Ferdik,

1261. Thus, if Plaintiff files a First Amended Complaint with claims on which 19 relief cannot be granted, the First Amended Complaint will be dismissed 20 without leave to amend and with prejudice. 21 2. Alternatively, Plaintiff may file a notice with the Court that Plaintiff 22 intends to stand on the allegations in the Complaint. If Plaintiff chooses to stand on 23 the Complaint despite the deficiencies in the claims identified above, then the Court 24 will submit a recommendation to the assigned district judge that the deficient 25 claims discussed in this Order be dismissed with prejudice for failure to state a 26 claim, subject to Plaintiff’s right at that time to file Objections with the district judge 27 as provided in the Local Rules Governing Duties of Magistrate Judges. If the 1 Magistrate Judge and dismisses the deficient claims discussed in this Order, the Court 2 will issue a separate order regarding service of any claims remaining in the Complaint 3 at that time. 4 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice, 5 pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to 6 mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff 7 to use if Plaintiff chooses to voluntarily dismiss the action. 8 Plaintiff is explicitly cautioned that failure to timely respond to this 9 Order will result in this action being dismissed with prejudice for failure to 10 state a claim, or for failure to prosecute and/or obey Court orders pursuant to 11 Federal Rule of Civil Procedure 41(b). 12 13 Dated: April 20, 2021

14 HONORABLE KENLY KIYA KATO United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27