(PC) Khademi v. Roseville Police Department

[7] 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 DAVOOD KHADEMI, No. 2:21-CV-0966-JAM-DMC-P 12 Plaintiff, 13 v. ORDER 14 ROSEVILLE POLICE DEPARTMENT, et al., [15] Defendants. [17] 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to [19] 42 U.S.C. § 1983 . Pending before the Court is Plaintiff’s original complaint, ECF No. 1. 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 24 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 25 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 26 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 27 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 28 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 1 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 2 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 3 with at least some degree of particularity overt acts by specific defendants which support the 4 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 5 impossible for the Court to conduct the screening required by law when the allegations are vague 6 and conclusory. [7] 8 I. PLAINTIFF’S ALLEGATIONS 9 Plaintiff names the following as defendants: (1) the City of Roseville Police 10 Department for the County of Placer; (2) Sean Vanderwende, a police officer in Roseville; (3) 11 Cameron Landon, a police officer in Roseville; (4) Derek Anganes, a police officer in Roseville; 12 (5) the Superior Court of California in and for the County of Placer; (6) Martin Jones, a public 13 defender in Placer County; (7) Dr. Eugene P. Roeden, a clinical and forensic psychologist in 14 Auburn, CA; (8) Elizabeth Madsen, a public defender in Placer County; and (9) Linda J. 15 Zacharitiz, an attorney for the Court of Appeals for the Third District Court. ECF No. 1, pgs. 1-2. 16 Plaintiff makes a host of conclusory constitutional claims amongst an extensive irrelevant 17 narrative. See id. at 1-25. 18 First, Plaintiff alleges a violation of the First Amendment where Defendants 19 Vanderwende, Landon, and Anganes denied Plaintiff the right to use a phone after Plaintiff’s 20 arrest and incarceration. See id. at 5, 11. 21 Second, Plaintiff alleges a violation of the Eighth Amendment where Defendants 22 Vanderwende, Landon, and Anganes used excessive force injuring Plaintiff’s arm after arrest. 23 See id. at 5, 11. 24 Third, Plaintiff alleges a violation of the Fourth Amendment where Defendants 25 Vanderwende, Landon, and Anganes performed a “visual search of [Plaintiff’s] privet [sic] parts.” 26 Id. at 11. 27 / / / 28 / / / 1 Fourth, Plaintiff alleges a constitutional violation because the law library at the 2 Placer County Jail is inadequate. See id. at 15. Plaintiff alleges “no internet access and no 3 books.” Id. 4 Fifth, Plaintiff alleges a violation of Plaintiff’s right to a speedy trial where 5 Defendant, Roseville Police Department, held Plaintiff for too long without an arraignment. See 6 id. at 15. Plaintiff states he was incarcerated for almost seventy-five (75) days before Plaintiff’s 7 preliminary hearing. See id. at 15. 8 Sixth, Plaintiff alleges a violation of the Equal Protections Clause where 9 Defendant, the Superior Court for the County of Placer, intended to discriminate against Plaintiff 10 because of Plaintiff’s race. See id. at 16. Plaintiff claims he was shackled and chained at 11 Plaintiff’s preliminary hearing. See id. at 18. 12 Seventh, Plaintiff alleges a violation of Plaintiff’s rights against cruel and unusual 13 punishment where Defendant Roseville Police Department held Plaintiff in isolation for twenty14 three hours out of the day and did not have proper medical treatment. See id. at 15. 15 Eighth, Plaintiff alleges a violation of Plaintiff’s right to competent counsel where 16 Defendants Zacharitiz, Madsen, and Jones were ineffective. See id. at 19. Zacharitiz failed to 17 include facts giving rise to a due process argument and failed to find a second expert while 18 representing Plaintiff. See id. at 20. “Jones failed to provide any information regarding the bail 19 amount to the Plaintiff.” Id. at 19. Jones also failed to file on time and failed to respond to any of 20 Plaintiff’s questions. See id. at 19. 21 Nineth, Plaintiff alleges that Defendant Roeder “failed to adequately interview the 22 Plaintiff.” Id. at 23. 23 Tenth, Plaintiff alleges that Defendant, the Superior Court, discriminated against 24 Plaintiff because of a disability. Id. at 24. 25 Plaintiff claims the above events caused Plaintiff mental suffering, humiliation, 26 and embarrassment. See id. at 11. According to Plaintiff, he has suffered “a physical impairment 27 that substantially limits one or more of his major life activities.” Id. at 23. 28 / / / 1 II. DISCUSSION 2 The Court finds that Plaintiff states a cognizable excessive force claim against 3 Defendants Vanderwende, Landon, and Anganes. However, Plaintiff fails to allege any other 4 cognizable claims. There are either problems concerning the Defendants or with not providing 5 enough information to determine whether Plaintiff has a claim, or both. 6 A. Issues with Defendants 7 1. Eleventh Amendment and the Superior Court 8 The Eleventh Amendment prohibits federal courts from hearing suits brought 9 against a state both by its own citizens, as well as by citizens of other states. See Brooks v. 10 Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This prohibition 11 extends to suits against states themselves, and to suits against state agencies. See Lucas v. Dep’t 12 of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Taylor v. List, 880 F.2d 1040, 1045 (9th 13 Cir. 1989). A state’s agency responsible for incarceration and correction of prisoners is a state 14 agency for purposes of the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781 , 782 15 (1978) (per curiam); Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (en banc). 16 Plaintiff lists the Superior Court of California in and for Placer County as a 17 defendant. The Superior Court is a state agency. Plaintiff is prohibited from bringing suit against 18 the Superior Court. Therefore, Plaintiff cannot proceed against the Superior Court. 19 2. Municipal Liability and the Police Department 20 Municipalities and other local government units are among those “persons” to 21 whom § 1983 liability applies. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). 22 Counties and municipal government officials are also “persons” for purposes of § 1983. See id. 23 at 691; see also Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989). A local 24 government unit, however, may not be held responsible for the acts of its employees or officials 25 under a respondeat superior theory of liability. See Bd. of County Comm’rs v. Brown, 520 U.S. 26 397, 403 (1997). Thus, municipal liability must rest on the actions of the municipality, and not of 27 the actions of its employees or officers. See id. To assert municipal liability, therefore, the 28 plaintiff must allege that the constitutional deprivation complained of resulted from a policy or 1 custom of the municipality. See id. A claim of municipal liability under § 1983 is sufficient to 2 withstand dismissal even if it is based on nothing more than bare allegations that an individual 3 defendant’s conduct conformed to official policy, custom, or practice. See Karim-Panahi v. Los 4 Angeles Police Dep’t, 839 F.2d 621 , 624 (9th Cir. 1988). 5 Plaintiff lists the City of Roseville Police Department for Placer County as a 6 defendant. Plaintiff’s claims against Defendant Police Department are for an inadequate law 7 library, for a violation of the Eighth Amendment, and for a violation of Plaintiff’s speedy trial 8 right. For Plaintiff to make these claims cognizable Plaintiff must, at a minimum, allege that 9 Plaintiff’s constitutional violations are the result of the Police Department’s policies or customs. 10 Plaintiff has not so alleged. Plaintiff will be provided an opportunity to amend. 11 3. State Actor Requirement 12 “[T]he requirements for relief under [§] 1983 have been articulated as: (1) a 13 violation of rights protected by the Constitution or created by federal statute, (2) proximately 14 caused (3) by conduct of a ‘person’ (4) acting under color of state law.” Crumpton v. Gates, 947 15 F.2d 1418 , 1420 (9th Cir. 1991). 16 Here, Plaintiff lists Dr. Eugene P. Roeden as a defendant. However, Defendant 17 Roeden did not act under color of state law (i.e., he is not a state actor). Plaintiff will be provided 18 leave to amend to the extent he can allege that Defendant Roeden acted in concert with other 19 state actors such that he himself can be considered as having acted under color of state law. 20 B. Issues with Claims 21 1. Claims Implicating Underlying Criminal Conviction 22 When a state prisoner challenges the legality of his custody and the relief he seeks 23 is a determination that he is entitled to an earlier or immediate release, such a challenge is not 24 cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a writ 25 of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda, [26] 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 27 1995) (per curiam). Thus, where a § 1983 action seeking monetary damages or declaratory relief 28 alleges constitutional violations which would necessarily imply the invalidity of the prisoner’s 1 underlying conviction or sentence, or the result of a prison disciplinary hearing resulting in 2 imposition of a sanction affecting the overall length of confinement, such a claim is not 3 cognizable under § 1983 unless the conviction or sentence has first been invalidated on appeal, by 4 habeas petition, or through some similar proceeding. See Heck v. Humphrey, 512 U.S. 477 , 4835 84 (1994) (concluding that § 1983 claim not cognizable because allegations were akin to 6 malicious prosecution action which includes as an element a finding that the criminal proceeding 7 was concluded in plaintiff’s favor); Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997) 8 (concluding that § 1983 claim not cognizable because allegations of procedural defects were an 9 attempt to challenge substantive result in parole hearing); cf. Neal, 131 F.3d at 824 (concluding 10 that § 1983 claim was cognizable because challenge was to conditions for parole eligibility and 11 not to any particular parole determination); cf. Wilkinson v. Dotson, 544 U.S. 74 (2005) 12 (concluding that § 1983 action seeking changes in procedures for determining when an inmate is 13 eligible for parole consideration not barred because changed procedures would hasten future 14 parole consideration and not affect any earlier parole determination under the prior procedures). 15 Here, Plaintiff alleges two claims that if successful would invalidate Plaintiff’s 16 underlying conviction. Specifically, Plaintiff alleges a violation of his right to a speedy trial and a 17 violation of his right to counsel. As mentioned above, such claims are not cognizable under § 18 1983 unless the conviction or sentence has first been invalidated on appeal, by habeas petition, or 19 through some similar proceeding. Therefore, Plaintiff’s right to counsel claim shall be dismissed 20 with leave to amend to demonstrate that Plaintiff’s conviction has first been invalidated. 21 Additionally, Plaintiff’s right to a speedy trial claim has already been dismissed 22 because of issues pertaining to listing the Police Department as the defendant for that claim (see 23 above). However, if Plaintiff cures the issues concerning the Police Department as the defendant 24 for his speedy trial claim, Plaintiff should also demonstrate that Plaintiff’s underlying conviction 25 has first been invalidated. 26 / / / 27 / / / 28 / / / 1 2. Right to Telephone Access 2 “Prisoners have a First Amendment right to telephone access, subject to reasonable 3 security limitations.” Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (citing Strandberg v. 4 City of Helena, 791 F.2d 744, 747 (9th Cir. 1986)), amended by 135 F.3d 1318 (9th Cir. 1998); 5 see also Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000) (per curiam) (concluding no 6 right to a specific phone rate). However, a plaintiff should provide details surrounding the denial 7 of access to the telephone such as whether the denial of access was “total, partial, or even 8 occasional” or whether “he was denied access for a specific emergency or call to his lawyer on an 9 occasion when he had a specific need.” See Keenan, 83 F.3d at 1092 . 10 Here, Plaintiff asserts that his right to telephone access was denied. Plaintiff has 11 not, however, provided details regarding his telephone access, such as whether denial was total or 12 partial, or whether the call he intended to make was to his lawyer or in relation to an emergency. 13 Therefore, the Court dismisses Plaintiff’s right to telephone access claim with leave to amend. 14 3. Fourth Amendment Body Search 15 Prisoners retain a very limited Fourth Amendment right to shield themselves from 16 being observed nude. See Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir. 1988); cf. 17 Robino v. Iranon, 145 F.3d 1109, 1111 (9th Cir. 1998) (per curiam) (relying on prisoners’ privacy 18 right in not being viewed by guards of the opposite sex to conclude that gender may be a bona 19 fide occupational qualification in a Title VII sex discrimination action brought by male guards). 20 This right is not violated if guards only make casual observations of the prisoner or if the 21 observations are made from a distance. See Michenfelder, 860 F.2d at 334 ; Grummett v. Rushen, [22] 779 F.2d 491, 495-96 (9th Cir. 1985). 23 Generally, strip searches do not violate the Fourth Amendment rights of prisoners. 24 See Michenfelder, 860 F.2d at 332-33 . Strip searches that are “excessive, vindictive, harassing, 25 or unrelated to any legitimate penological interest,” however, may be unconstitutional. Id. at 332 . 26 In the case of a pretrial detainee, a cross-gender, strip search was unreasonable as a matter of law, 27 where the female cadet touched the detainee’s inner and outer thighs, buttocks, and genital area. 28 Byrd v. Maricopa City Sheriff’s Dep’t, 629 F.3d 1135, 1142 . However, routine visual body 1 cavity searches do not violate prisoners’ Fourth Amendment rights. See Bell v. Wolfish, 441 2 U.S. 520 , 558 (1979); Thompson v. Souza, 111 F.3d 694, 700 (9th Cir. 1997); May v. Baldwin, [3] 109 F.3d 557, 565 (9th Cir. 1997); Michenfelder, 860 F.2d at 332 ; Rickman v. Avaniti, 854 F.2d 4 327, 328 (9th Cir. 1988). 5 Here, Plaintiff was allegedly subject to a “visual search” of his “privet [sic] parts.” 6 Plaintiff needs to provide more information for the Court to determine whether this is a 7 cognizable Fourth Amendment claim. Plaintiff should provide facts as to whether he was 8 clothed, whether he was touched, where he was touched if he was, the gender of the guards who 9 searched him, and so on. Plaintiff’s Fourth Amendment claim is dismissed with leave to amend. 10 4. Inadequate Law Library Claim 11 Prisoners have a First Amendment right of access to the courts. See Lewis v. 12 Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977); Bradley v. Hall, 64 13 F.3d 1276, 1279 (9th Cir. 1995) (discussing the right in the context of prison grievance 14 procedures). This right includes petitioning the government through the prison grievance process. 15 See id. Prison officials are required to “assist inmates in the preparation and filing of meaningful 16 legal papers by providing prisoners with adequate law libraries or adequate assistance from 17 persons trained in the law.” Bounds, 430 U.S. at 828 . The right of access to the courts, however, 18 only requires that prisoners have the capability of bringing challenges to sentences or conditions 19 of confinement. See Lewis, 518 U.S. at 356-57 . Moreover, the right is limited to non-frivolous 20 criminal appeals, habeas corpus actions, and § 1983 suits. See id. at 353 n.3 & 354-55. 21 Therefore, the right of access to the courts is only a right to present these kinds of claims to the 22 court, and not a right to discover claims or to litigate them effectively once filed. See id. at 35423 55. 24 As a jurisdictional requirement flowing from the standing doctrine, the prisoner 25 must allege an actual injury. See id. at 349. “Actual injury” is prejudice with respect to 26 contemplated or existing litigation, such as the inability to meet a filing deadline or present a non27 frivolous claim. See id.; see also Phillips v. Hust, 477 F.3d 1070, 1075 (9th Cir. 2007). Delays in 28 providing legal materials or assistance which result in prejudice are “not of constitutional 1 significance” if the delay is reasonably related to legitimate penological purposes. Lewis, 518 2 U.S. at 362. 3 Here, Plaintiff alleges that there is an inadequate law library. However, Plaintiff 4 fails to show how he was injured because of the inadequacy of the law library. Plaintiff’s right to 5 an adequate law library claim has already been dismissed because of issues pertaining to listing 6 the Police Department as the defendant for that claim (see above). However, if Plaintiff cures the 7 issues concerning the Police Department as the defendant for this claim, Plaintiff should also 8 demonstrate that Plaintiff was injured because of the inadequacy of the law library in order to 9 sustain a claim based on denial of access to the courts. [10] 11 III. CONCLUSION 12 Because it is possible that the deficiencies identified in this order may be cured by 13 amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d 14 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an 15 amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258 , 16 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the 17 prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An 18 amended complaint must be complete in itself without reference to any prior pleading. See id. 19 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 20 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 21 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 22 each named defendant is involved, and must set forth some affirmative link or connection 23 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 24 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 25 / / / 26 / / / 27 / / / 28 / / / 1 Because the complaint appears to otherwise state a cognizable claim, if no 2 || amended complaint is filed within the time allowed therefor, the Court will issue findings and 3 || recommendations that the claims identified herein as defective be dismissed, as well as such 4 | further orders as are necessary for service of process as to the cognizable claim. 5 Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a first amended 6 | complaint within 30 days of the date of service of this order. [4] 8 || Dated: September 30, 2021 Ssvcqo_ ? DENNIS M. COTA 10 UNITED STATES MAGISTRATE JUDGE