Opinion
Case No. 1:15-cv-01203 DLB
11-13-2015
MONICO J. QUIROGA, Plaintiff, v. FOOD SERVICE, Defendant.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND THIRTY-DAY DEADLINE
Plaintiff Monico J. Quiroga ("Plaintiff"), an inmate in the custody of the Kern County Sheriff's Department, is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 4, 2015. He names "Food Service, Lerdo Detention Facility" as the sole Defendant. A. SCREENING STANDARD
Plaintiff consented to the jurisdiction of the United States Magistrate Judge on November 2, 2015.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. B. ALLEGATIONS IN COMPLAINT
Plaintiff is currently in the custody of the Kern County Sheriff's Department. He is incarcerated at the Lerdo Pre-Trial Facility in Lerdo, California, where the events at issue occurred.
Plaintiff alleges that on July 12, 2015, at dinner, he was given half of a food portion. Plaintiff contends that this is an ongoing problem and that he's "tired of being starved and malnourished." ECF No. 1, at 3. C. DISCUSSION
It is not clear whether Plaintiff is a pretrial detainee or a convicted inmate. Plaintiff is incarcerated at a pretrial facility, however, and the Court will presume he is a pretrial detainee.
If this is not correct, Plaintiff should inform the Court of his status if he amends.
As a pretrial detainee, Plaintiff is protected from conditions of confinement which amount to punishment. Bell v. Wolfish, 441 U.S. 520, 535-36, 99 S.Ct. 1861 (1979); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017-18 (9th Cir. 2010); Clouthier v. County of Contra Costa, 591 F.3d 1232, 1244 (9th Cir. 2010). This right is violated if restrictions are "imposed for the purpose of punishment." Bell, 441 U.S. at 535, 99 S.Ct. 1861. There is no constitutional infringement, however, if restrictions are "but an incident of some other legitimate government purpose." Id. In such a circumstance, governmental restrictions are permissible. United States v. Salerno, 481 U.S. 739, 748, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (holding that the pretrial detention contemplated by the Bail Reform Act is regulatory in nature, and does not constitute punishment before trial in violation of the Due Process Clause).
Plaintiff alleges that he has been receiving half of a food portion, and that this is an ongoing problem. While he may ultimately state a claim, his allegations are too vague to do so at this juncture. Plaintiff has not alleged that the half food portion was imposed for the purpose of punishment. Plaintiff must present factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
Plaintiff also fails to link a specific individual responsible for the decreased food portion. He names the "Food Service, Lerdo Detention Facility" as the sole Defendant, but he does not link any individual with acts or omissions that led to the alleged violations.
Plaintiff is notified that if he amends and his factual allegations state a claim for relief, the United States Marshal cannot initiate service of process on an unknown Defendant, and the action cannot proceed further unless and until Plaintiff identifies the individual(s) responsible for the denials. In this regard, Plaintiff is informed that he must link each named defendant to a violation of his constitutional rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934.
For these reasons, Plaintiff fails to state a claim for relief. Plaintiff will be permitted to amend. In amending, he must allege additional factual support for his claim. D. CONCLUSION AND ORDER
Plaintiff's complaint does not state any cognizable claims against any Defendant.
Plaintiff has not previously been provided with notice of the deficiencies in his claims and the Court will provide Plaintiff with the opportunity to file an amended complaint, if he believes, in good faith, he can cure the identified deficiencies. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).
If Plaintiff amends, he may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
If Plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but under section 1983, it must state what each named defendant did that led to the deprivation of Plaintiff's constitutional rights and liability may not be imposed on supervisory personnel under the mere theory of respondeat superior, Iqbal, 556 U.S. at 676-77; Starr v. Baca, 652 F.3d 1202, 1205-07 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level. . ." Twombly, 550 U.S. at 555 (citations omitted).
Finally, an amended complaint supercedes the original complaint, Lacey v. Maricopa County, 693 F.3d 896, 907 (9th Cir. 2012) (en banc), and it must be "complete in itself without reference to the prior or superceded pleading," Local Rule 220.
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's complaint is DISMISSED WITH LEAVE TO AMEND;
2. The Clerk's Office shall send Plaintiff a complaint form;
3. Within thirty (30) days from the date of service of this order, Plaintiff must file an amended complaint curing the deficiencies identified by the Court in this order;IT IS SO ORDERED.
4. If Plaintiff fails to comply with this order, this action will be dismissed, without prejudice, for failure to obey a court order.
Dated: November 13 , 2015
/s/ Dennis L . Beck
UNITED STATES MAGISTRATE JUDGE