Schultz v. Kern Cnty.

1

SUSAN MARIE SHULTZ, Plaintiff, v. KERN COUNTY, Defendant.

No. 1:22-cv-00646-JLT-BAM

United States District Court, E.D. California

August 1, 2022

FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION (Doc. 10)

FOURTEEN-DAY DEADLINE

BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE

Plaintiff Susan Marie Shultz (“Plaintiff”'), proceeding pro se and in forma pauperis, initiated this civil action on March 2, 2022. (Doc. 1.) Plaintiff filed a first amended complaint on May 21, 2022, and the matter was transferred to the Fresno Division of this Court on May 31 2022. (Docs. 6, 8.)

On June 15, 2022, the Court screened Plaintiff's first amended complaint and granted her leave to amend within thirty (30) days of service of the Court's order. (Doc. 10.) Plaintiff was expressly warned that if she failed to file a second amended complaint in compliance with the Court's order, then the Court would recommend dismissal of this action, with prejudice, for failure to obey a court order and for failure to state a claim. (Id.) The deadline for Plaintiff to file her second amended complaint has passed and Plaintiff has not complied with the Court's order. The Court therefore will recommend dismissal of this action for failure to state a claim and failure to obey a court order.

I. Failure to State a Claim

A. Screening Requirement and Standard

The Court screens complaints brought by persons proceeding in pro se and in forma pauperis. 28 U.S.C. § 1915(e)(2). Plaintiffs complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiffs allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

B. Plaintiff's Allegations

Plaintiff alleges violations of due process, equal protection, and Cal.Gov. Code § 7260.5. Plaintiff names as defendants: (1) Kern County, (2) Kern County Sheriff Department, (3) Kern County Public Works, and (4) Kern County Environmental Health.

Plaintiff alleges as follows. Plaintiff “was accused of trespassing in an unsafe home and vacated without notice on April 14, 2020 by the Kern County Sheriff Department. No report was made. I requested several times to make a report and to write down my name. The sheriff said they only do that if a) I was dead or b) for trespassing.” Plaintiff was told by the county that there are “refunds” to relocate Plaintiff. Plaintiff was also told that Plaintiff was denied relocation and homeless counseling. The county did not hold anyone liable. Plaintiff was displaced and “displacement means ridicule and humiliation, homelessness and criminalization.” Plaintiff was “vacated, leaving [plaintiff] outside during COVID” and alone with men who harmed Plaintiff. Plaintiff alleges she was hired to caretake the property. Plaintiff seeks relocation, access to water, privacy. She alleges she “lost everything.”

C. Discussion

Plaintiff's complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to state a cognizable claim under 42 U.S.C. § 1983. Because she is proceeding pro se, Plaintiff will be granted leave to amend her complaint to the extent that she can do so in good faith. To assist Plaintiff, the Court provides the pleading and legal standards that appear relevant to her claims.

1. Federal Rule of Civil Procedure 8

Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556-557. Although Plaintiffs complaint is short, it is not a plain statement of her claims. As a basic matter, the complaint does not clearly state what happened, when it happened or who was involved. Plaintiff's allegations must be based on facts as to what happened and not conclusions.

2. Federal Rule of Civil Procedure 10

Plaintiff is informed that Rule 10(a) of the Federal Rules of Civil Procedure requires that each defendant be named in the caption of the complaint. A complaint is subject to dismissal if “one cannot determine from the complaint who is being sued, [and] for what relief....” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). Only Kern County is named in the caption.

Various other entities are not named in the caption, and the Court will not assume that Plaintiff intends to proceed against those not so named.

3. Linkage Requirement

The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law]...subjects, or causes to be subjected, any citizen of the United States...to the deprivation of any rights, privileges, or immunities secured by the Constitution...shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. Dep I of Soc. Servs., 436 U.S. 658, (1978); Rizzo v. Goode, 423 U.S. 362, (1976). The Ninth Circuit has held that “[a] person ‘subjects another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978).

Plaintiff's complaint fails to link Defendant Kern County, and the other entities referred to in the body of the first amended complaint, to potential constitutional violations. Plaintiff must name individual defendants and allege what each defendant did or did not do that resulted in a violation of his constitutional rights.

4. Police and Sheriff Departments as Defendants

“To state a claim under 42 U.S.C. § 1983, the plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated; and (2) that the alleged violation was committed by a person acting under color of state law.” Campbell v. Washington Dep't of Soc. Servs., 671 F.3d 837, 842 n. 5 (9th Cir. 2011) (citing Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 (9th Cir.1987)). In this instance, Plaintiff refers to the Kern County Sheriff Department in the body of the first amended complaint as a potential defendant. The Court recognizes that there is a split within district courts in the Ninth Circuit on whether a police or sheriff department is “person” under § 1983 and a proper defendant for § 1983 claims. See Siralsamy v. Sacramento Cty. Sheriff Dep't, No. 2:21-cv-0678-JAM-KJN PS, 2021 WL 2210711, at *4 (E.D. Cal. June 1, 2021) (noting split of authority on whether a California sheriff's department or police department is a “person” under § 1983 and a proper defendant for § 1983 claims); Cantu v. Kings Cty., No. 1:20-cv-00538-NONE-SAB, 2021 WL 411111, at *1 (E.D. Cal. Feb. 5, 2021) (discussing split within district courts in the Ninth Circuit on issue). Certain courts have found that a police department may be sued as a “person” under § 1983. See, e.g., Estate of Pimentel v. City of Ceres, No. 1:18-cv-01203-DAD-EPG, 2019 WL 2598697, at *2-*3 (E.D. Cal. Jun. 25, 2019) (rejecting argument that Ceres Police Department is not a “person” within meaning of § 1983; denying defendants' motion for judgment with respect to plaintiff's claims against Ceres Police Department).

Plaintiff also appears to assert claims against various departments within Kern County: Kern County Sheriff's Department Kern County Public Works and Kern County Environmental Health. Under section 1983, however, a local government unit may not be held responsible for the acts of its employees under a respondeat superior theory of liability. See Monell v. Dep't of Social Servs., 436 U.S. 658, 690-91 (1978). Generally, a claim against a local government unit for municipal or county liability requires an allegation that “a...