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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ARTHUR D. FINCH, 

Plaintiff(s),

 v.

ALAMEDA COUNTY SHERIFF'S

DEP'T, et al.,

Defendant(s). 

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No. C 09-2627 CRB (PR)

ORDER OF SERVICE

Plaintiff, a prisoner at Avenal State Prison, has filed a pro se civil rights

complaint for damages under 42 U.S.C. § 1983 alleging that on January 23, 2009,

while he was a pretrial detainee at the Alameda County Jail, Alameda County

Deputy Sheriffs Foster, Manson and Brandon beat and assaulted him. Plaintiff

also names the Alameda County Sheriff's Department. 

DISCUSSION

A. Standard of Review

Federal courts must engage in a preliminary screening of cases in which

prisoners seek redress from a governmental entity or officer or employee of a

governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable

claims or dismiss the complaint, or any portion of the complaint, if the complaint

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"is frivolous, malicious, or fails to state a claim upon which relief may be

granted," or "seeks monetary relief from a defendant who is immune from such

relief." Id. § 1915A(b). Pro se pleadings must be liberally construed, however. 

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two

essential 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 the color of state law. West v. Atkins, 487 U.S. 42, 48

(1988).

B. Legal Claims

The Due Process Clause of the Fourteenth Amendment protects a postarraignment pretrial detainee from the use of excessive force that amounts to

punishment. Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (citing Bell v.

Wolfish, 441 U.S. 520, 535-39 (1979)). Liberally construed, plaintiff's

allegations that Alameda County Deputy Sheriffs Foster, Manson and Brandon

beat and assaulted him state a cognizable § 1983 claim for use of excessive force

in violation of the Due Process Clause and will be served on these three

defendants. But the Alameda County Sheriff's Department will be dismissed

because it is named on the theory that it is liable for the actions of its employees

and it well established that there is no liability under § 1983 under such a theory,

i.e., a theory of respondeat superior liability. See Taylor v. List, 880 F.2d 1040,

1045 (9th Cir. 1989) (under no circumstances is there liability under § 1983

solely because one is responsible for the actions or omissions of another). 

/

/

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CONCLUSION

For the foregoing reasons and for good cause shown,

1. The clerk shall issue summons and the United States Marshal shall

serve, without prepayment of fees, copies of the complaint in this matter, all

attachments thereto, and copies of this order on the following defendants at the

Alameda County Sheriff's Department: Alameda County Deputy Sheriffs Foster,

Manson and Brandon. The Alameda County Sheriff's Department itself is

dismissed, however. 

2. In order to expedite the resolution of this case, the court orders as

follows:

a. No later than 90 days from the date of this order, defendants

shall file a motion for summary judgment or other dispositive motion. A motion

for summary judgment shall be supported by adequate factual documentation and

shall conform in all respects to Federal Rule of Civil Procedure 56, and shall

include as exhibits all records and incident reports stemming from the events at

issue. If defendants are of the opinion that this case cannot be resolved by

summary judgment or other dispositive motion, they shall so inform the court

prior to the date their motion is due. All papers filed with the court shall be

served promptly on plaintiff.

b. Plaintiff's opposition to the dispositive motion shall be filed

with the court and served upon defendants no later than 30 days after defendants

serve plaintiff with the motion. 

c. Plaintiff is advised that a motion for summary judgment

under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your

case. Rule 56 tells you what you must do in order to oppose a motion for

summary judgment. Generally, summary judgment must be granted when there

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is no genuine issue of material fact--that is, if there is no real dispute about any

fact that would affect the result of your case, the party who asked for summary

judgment is entitled to judgment as a matter of law, which will end your case. 

When a party you are suing makes a motion for summary judgment that is

properly supported by declarations (or other sworn testimony), you cannot simply

rely on what your complaint says. Instead, you must set out specific facts in

declarations, depositions, answers to interrogatories, or authenticated documents,

as provided in Rule 56(e), that contradicts the facts shown in the defendant's

declarations and documents and show that there is a genuine issue of material

fact for trial. If you do not submit your own evidence in opposition, summary

judgment, if appropriate, may be entered against you. If summary judgment is

granted, your case will be dismissed and there will be no trial. Rand v. Rowland,

154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App A).

Plaintiff is also advised that a motion to dismiss for failure to exhaust

administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your

case, albeit without prejudice. You must “develop a record” and present it in

your opposition in order to dispute any “factual record” presented by the

defendants in their motion to dismiss. Wyatt v. Terhune, 315 F.3d 1108, 1120

n.14 (9th Cir. 2003).

d. Defendants shall file a reply brief within 15 days of the date

on which plaintiff serves them with the opposition. 

e. The motion shall be deemed submitted as of the date the

reply brief is due. No hearing will be held on the motion unless the court so

orders at a later date. 

3. Discovery may be taken in accordance with the Federal Rules of

Civil Procedure. No further court order is required before the parties may

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conduct discovery.

4. All communications by plaintiff with the court must be served on

defendants, or defendants' counsel once counsel has been designated, by mailing

a true copy of the document to defendants or defendants' counsel.

5. It is plaintiff's responsibility to prosecute this case. Plaintiff must

keep the court and all parties informed of any change of address and must comply

with the court's orders in a timely fashion. Failure to do so may result in the

dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b).

SO ORDERED.

DATED: Jan. 12, 2010 

CHARLES R. BREYER

United States District Judge

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