United States District Court, D. Arizona
ORDER
HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE
At
issue is pro se Plaintiff Oscar Ybarra Jr.'s
Amended Complaint (Doc. 13, Compl.), which he filed pursuant
to the Court's order dismissing with leave to refile his
first Complaint (Doc. 12). However, as set forth below, upon
screening Plaintiff's Amended Complaint pursuant to 28
U.S.C. § 1915(e)(2), the Court finds again that the
Complaint does not state a claim against Defendants Williams
or Kalkbrenner. The Court therefore dismisses the Complaint
with permission to re-file no later than May 8, 2019.
In the
Complaint, Plaintiff alleges that, on February 3, 2018,
officers of the Phoenix Police Department “participated
and engaged in [] beating” him, resulting in various
injuries. (Compl. at 4.) Plaintiff also alleges that the
Phoenix Fire Department responded to the incident but failed
to provide any medical aid. (Compl. at 4.) Plaintiff seeks
money damages under 42 U.S.C. § 1983 for alleged
violations of his Fourth, Eighth, and Fourteenth Amendment
rights.
As was
the case in his original Complaint, while Plaintiff states a
claim against the unnamed police officers, he fails to state
a claim against Phoenix Police Chief Jeri Williams or Phoenix
Fire Chief Kara Kalkbrenner. Plaintiff does not specify
whether he seeks damages against these two Defendants in
their official or individual capacities. Generally,
“personal-capacity suits seek to impose personal
liability upon a government official for actions he takes
under color of state law, ” while
“official-capacity suits, in contrast, ‘generally
represent only another way of pleading an action against an
entity of which an officer is an agent.'”
Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985).
To establish individual liability, “it is enough to
show that the official, acting under color of state law,
caused the deprivation of a federal right.”
Id. at 166. But any suit seeking money damages
against municipal officials in their individual capacity must
allege that the officials were “personally involved in
the deprivation of [plaintiff's] civil rights.”
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.
1998).
As
written, it seems that Plaintiff's Amended Complaint
alleges liability based on Defendants' individual
actions, but it is unclear exactly what those actions are.
Plaintiff claims that both Defendants are “responsible
for the actions of her department [] and [her] employees
[officers].” (Compl. at 5.)[1] Without any allegations that
Defendants were present during the alleged mistreatment of
Plaintiff, or that Defendants directly ordered such
mistreatment, it is improper to hold them accountable in
their individual capacities.
On the
other hand, if Plaintiff attempts to pursue money damages
against Williams and Kalkbrenner in their official
capacities, he must base such an allegation on city policies
rather than specific conduct these individuals engaged in. In
Monell v. Department of Social Services of the City of
New York, 436 U.S. 658 (1978), the Supreme Court held
that a municipality is not liable for § 1983 claims
under a theory of vicarious liability. Instead, a plaintiff
must show that the municipality has adopted an
“official policy” or “custom” that
caused the alleged constitutional violation, “whether
made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy.”
Id. “The ‘official policy'
requirement was intended to distinguish acts of the
municipality from acts of employees of the
municipality, and thereby make clear that municipal liability
is limited to actions for which the municipality is actually
responsible.” Pembaur v. City of Cincinnati,
475 U.S. 469, 479 (1986) (quoting Monell, 436 U.S.
at 694). Under the Monell framework, municipal
officials may be sued for money damages in their official
capacities, but only for actions taken or decisions made
pursuant to an official policy or custom of the relevant
municipality.
If
Plaintiff wishes to sue Defendants Chief Williams and Chief
Kalkbrenner in their official capacities for money damages,
he must demonstrate a municipal policy or custom that could
plausibly be the moving force behind Plaintiff's alleged
injuries. Without doing so, Plaintiff is urging the Court to
impose vicarious liability against City of Phoenix officials
based solely on the conduct of the unnamed officers. See
Connick v. Thompson, 563 U.S. 51, 60-61 (2011). Such
liability will not lie. See Monell, 436 U.S. at 694.
If a
defective complaint can be cured, the plaintiff is entitled
to amend the complaint before the action is dismissed.
See Lopez v. Smith, 203 F.3d 1122, 1127-30 (9th Cir.
2000). Therefore, the Court will give Plaintiff a second
opportunity, if he so chooses, to amend his Complaint.
Plaintiff must make clear his allegations in short, plain
statements and identify whether he seeks relief against
municipal officials in their individual or official
capacities, and if necessary, must identify a municipal
policy or practice that resulted in his constitutional
injuries. The Court also advises Plaintiff that certain
resources for self-represented parties, including a handbook
and the Local Rules, are available on the Court's
website, www.azd.uscourts.gov, by following the link
“For Those Proceeding Without an Attorney.”
IT
IS THEREFORE ORDERED dismissing Plaintiff's
Amended Complaint as to Defendants Williams and Kalkbrenner
(Doc. 13).
IT
IS FURTHER ORDERED that Plaintiff may file a Second
Amended Complaint that complies with the Federal Rules of
Civil Procedure and this Order no later than May 8, 2019. If
no Second Amended Complaint is timely filed, Plaintiff may
proceed only against unnamed officer and firefighter
defendants under the original Complaint (Doc. 1). Plaintiff
is advised that, pursuant to Rule 4(m) of the Federal Rules
of Civil Procedure, if he elects to proceed only against the
unnamed defendants under the original Complaint, he must
serve unnamed defendants with the Summons and Complaint
within 90 days from the date of this Order.
IT
IS FURTHER ORDERED that if Plaintiff chooses to file
a Second Amended Complaint, the complaint may not be served
until and unless the Court screens the Second Amended
Complaint pursuant to 28 U.S.C. § 1915(e)(2). If the
Court gives Plaintiffs leave to serve a Second Amended
Complaint, Plaintiff shall be responsible for service of the
summons and Complaint.
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Notes:
[1] Plaintiff also goes on to claim that
Police Chief Williams is responsible for “misconduct
allegation[s] of Phoenix police officer(s) [that] have arose
as of later times, ” such as at a “Trump rally
September 2018.” (Compl. at 5.) The Court disregards
this portion of Plaintiff's Complaint, as these incidents
...