1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 TYE JAHN LE ‘DRE PARKER, 11 Case No. 21-01026 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH LEAVE TO AMEND v. 13

14 SAN FRANCISCO SHERIFF’S DEPT., et al., 15 Defendant.

16

17 18 Plaintiff, an inmate at the San Francisco County Jail, filed the instant pro se civil 19 rights action pursuant to

against the San Francisco Sheriff’s Department 20 and the City and County of San Francisco.1 Dkt. No. 1. Plaintiff’s motion for leave to 21 proceed in forma pauperis will be addressed in a separate order. 22 23 DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 1 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 2 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 3 upon which relief may be granted or seek monetary relief from a defendant who is immune 4 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 5 construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 6 To state a claim under

, a plaintiff must allege two essential 7 elements: (1) that a right secured by the Constitution or laws of the United States was 8 violated, and (2) that the alleged violation was committed by a person acting under the 9 color of state law. See West v. Atkins,

(1988). 10 B. Plaintiff’s Claims 11 Plaintiff claims that from October 18, 2020 to October 28, 2020, he was subjected 12 to inhumane living conditions due to the backed-up toilet in his cell and the persistent 13 stench. Dkt. No. 1 at 2-3. Plaintiff claims that the “deputized staff” ignored him, 14 sometimes for hours, until he could use the restroom elsewhere in the jail. Id. at 3. 15 Plaintiff names the San Francisco Sheriff’s Department and the City and County of San 16 Francisco. Id. at 1. Plaintiff claims he suffered physical illness, emotional distress, and 17 loss of appetite and sleep. Plaintiff seeks damages. Id. at 3. 18 The Constitution does not mandate comfortable prisons, but neither does it permit 19 inhumane ones. See Farmer v. Brennan,

(1994). The treatment a 20 prisoner receives in prison and the conditions under which he is confined are subject to 21 scrutiny under the Eighth Amendment. See Helling v. McKinney,

(1993). 22 The Amendment also imposes duties on these officials, who must provide all prisoners 23 with the basic necessities of life such as food, clothing, shelter, sanitation, medical care 24 and personal safety. See Farmer,

; DeShaney v. Winnebago County Dep't 25 of Social Servs.,

(1989); Hoptowit v. Ray,

(9th 26 Cir. 1982). A prison official violates the Eighth Amendment when two requirements are 1 U.S. at 834 (citing Wilson v. Seiter,

(1991)), and (2) the prison official 2 possesses a sufficiently culpable state of mind,

(citing Wilson,

). 3 Plumbing which deprives inmates of basic hygiene and seriously threatens inmates’ 4 physical and mental well-being amounts to cruel and unusual punishment. See Hoptowit v. 5 Spellman,

(9th Cir. 1985); Toussaint v. McCarthy,

, 6 1409 (N.D. Cal. 1984). 7 Plaintiff satisfies the first element of an Eighth Amendment claim as the plumbing 8 issues in his cell were objectively, sufficiently serious.

However, Plaintiff fails to 9 satisfy the second element to state a § 1983 claim, i.e., that a person acting under the color 10 of state law committed the Eighth Amendment violation. Plaintiff names the San 11 Francisco Sheriff’s Department and the City and County of San Francisco as defendants, 12 but these entities are not an individual nor a “person” to satisfy the second element of an 13 Eighth Amendment claim. Plaintiff shall be granted leave to file an amended complaint to 14 identify at least one proper defendant from among the “deputized staff,” who knew of and 15 disregarded an excessive risk to Plaintiff’s health or safety. See Farmer,

. 16 The defendant must both be aware of facts from which the inference could be drawn that a 17 substantial risk of serious harm exists, and he must also draw the inference. See

18 In preparing an amended complaint, Plaintiff should also keep the following 19 principles in mind. Liability may be imposed on an individual defendant under § 1983 20 only if Plaintiff can show that the defendant proximately caused the deprivation of a 21 federally protected right. See Leer v. Murphy,

(9th Cir. 1988); Harris v. 22 City of Roseburg,

(9th Cir. 1981). A person deprives another of a 23 constitutional right within the meaning of section 1983 if he does an affirmative act, 24 participates in another’s affirmative act or omits to perform an act which he is legally 25 required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 26 F.2d at 633. 1 San Francisco, Plaintiff fails to state a claim against them. Local governments are 2 “persons” subject to liability under

where official policy or custom 3 causes a constitutional tort, see Monell v. Dep't of Social Servs.,

, 690 4 (1978);2 however, a city or county may not be held vicariously liable for the 5 unconstitutional acts of its employees under the theory of respondeat superior, see Board 6 of Cty. Comm'rs. of Bryan Cty. v. Brown,

(1997); Monell,

691; Fuller v. City of Oakland,

(9th Cir. 1995). To impose municipal 8 liability under § 1983 for a violation of constitutional rights resulting from governmental 9 inaction or omission, a plaintiff must show: “(1) that he possessed a constitutional right of 10 which he or she was deprived; (2) that the municipality had a policy; (3) that this policy 11 amounts to deliberate indifference to the plaintiff’s constitutional rights; and (4) that the 12 policy is the moving force behind the constitutional violation.” Oviatt By and Through 13 Waugh v. Pearce,

, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 14

(1989) (internal quotation marks omitted); see Plumeau v. School Dist. 15 #40 County of Yamhill,

(9th Cir. 1997). Nowhere in the complaint does 16 Plaintiff allege that his conditions were the result of an official policy or custom. Plaintiff 17 may attempt to state a Monell claim in an amended complaint if he can, in good faith, state 18 sufficient facts in support; conclusory and speculative allegations will not be sufficient. 19 20 CONCLUSION 21 For the foregoing reasons, the Court orders as follows: 22 The complaint is DISMISSED with leave to amend. Within twenty-eight 23 (28) days of the date this order is filed, Plaintiff shall file an amended complaint to attempt 24 to correct the deficiencies discussed above. The amended complaint must include the 25 2 Local governing bodies therefore may be sued directly under § 1983 for monetary, 26 declaratory or injunctive relief for the violation of federal rights. See Monell,

|| caption and civil case number used in this order, Case No. C 21-01026 BLF (PR), and the 2 || words “AMENDED COMPLAINT?” on the first page. If using the court form complaint, 3 || Plaintiff must answer all the questions on the form in order for the action to proceed. 4 The amended complaint supersedes the original, the latter being treated thereafter as 5 || non-existent. Ramirez v. Cty. Of San Bernardino,

(9th Cir. 2015). 6 || Consequently, claims not included in an amended complaint are no longer claims and 7 || defendants not named in an amended complaint are no longer defendants. See Ferdik v. 8 || Bonzelet,

(9th Cir. 1992). 9 Failure to respond in accordance with this order in the time provided will 10 || result in the dismissal of this action with prejudice for failure to state a claim, without 11 further notice to Plaintiff. 2 The Clerk shall include two copies of the court’s complaint with a copy of this E 13. || order to Plaintiff. S 14 IT IS SO ORDERED 3 15 || Dated: — June 25,2021 Lower hacnar) BETH LABSON FREEMAN 16 United States District Judge

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