Rojas v. Johnson et al, No. 3:2017cv01287 - Document 5 (S.D. Cal. 2017)

Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis and dismissing complaint for failing to state a claim pursuant to 28 USC 1915(e)(2) and 1915A(b). The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each t ime the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). Plaintiff is granted 45 days leave from the date of the Order in which to file an Amended Complaint. (Order electronically transmitted to Secretary of CDCR). Signed by Judge John A. Houston on 9/25/2017. (All non-registered users served via U.S. Mail Service)(jpp)

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Rojas v. Johnson et al Doc. 5 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 CESAR ARMANDO ROJAS, CDCR #AB-4157, 15 16 ORDER: Plaintiff, 13 14 Case No.: 3:17-cv-01287-JAH-JMA vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2] RASHAD JOHNSON, Probation Officer, et al., Defendants. AND 17 2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) 18 19 20 21 22 CESAR ARMANDO ROJAS (“Plaintiff”), currently incarcerated at Mule Creek 23 State Prison (“MCSP”) in Ione, California, and proceeding pro se, has filed a civil rights 24 Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). 25 Plaintiff claims a San Diego County probation officer, his unnamed “transferring 26 partner,” a San Diego County Deputy Sheriff, the University of California San Diego 27 (“UCSD”) Emergency Room, and an unidentified emergency medical technician (“EMT”) 28 violated his Eighth Amendment rights on December 22, 2014. See Compl., ECF No. 1 at 1 3:17-cv-01287-JAH-JMA Dockets.Justia.com 1 3-5. He seeks to enjoin Defendants from “bothering” him, and more than $19 million in 2 general and punitive damages. Id. at 7. 3 Plaintiff has not paid the civil filing fee required by 28 U.S.C. § 1914(a); instead he 4 has filed a Motion to Proceed In Forma Pauperis pursuant to 28 U.S.C. § 1915(a) (ECF 5 No. 2). 6 I. Motion to Proceed In Forma Pauperis 7 All parties instituting any civil action, suit or proceeding in a district court of the 8 United States, except an application for writ of habeas corpus, must pay a filing fee of 9 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 10 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 11 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 12 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 13 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 14 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 15 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 16 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 17 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 18 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6- 19 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 20 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 21 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 22 in the account for the past six months, or (b) the average monthly balance in the account 23 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 24 25 26 27 28 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:17-cv-01287-JAH-JMA 1 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner 2 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 3 any month in which his account exceeds $10, and forwards those payments to the Court 4 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. 5 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 6 Statement Report. See ECF No. 2 at 2; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; 7 Andrews, 398 F.3d at 1119. This statement shows that while Plaintiff carried an average 8 monthly balance of $77.63 and had average monthly deposits of $52.86 to his account over 9 the 6-month period immediately preceding the filing of his Complaint, he had an available 10 balance of zero at the time of filing. See ECF No. 2 at 2. Thus, the Court assesses Plaintiff’s 11 initial partial filing fee to be $15.52 pursuant to 28 U.S.C. § 1915(b)(1), but acknowledges 12 he may be unable to pay that initial fee at this time. See 28 U.S.C. § 1915(b)(4) (providing 13 that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing 14 a civil action or criminal judgment for the reason that the prisoner has no assets and no 15 means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 16 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 17 dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of 18 funds available to him when payment is ordered.”). 19 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), 20 declines to exact any initial filing fee because his prison certificate indicates he may have 21 “no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California 22 Department of Corrections and Rehabilitation (“CDCR”), or his designee, to instead collect 23 the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them 24 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 25 U.S.C. § 1915(b)(1). See id. 26 /// 27 /// 28 /// 3 3:17-cv-01287-JAH-JMA 1 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 2 A. 3 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the 4 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP 5 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 6 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 7 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 8 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 9 statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are 10 frivolous, malicious, fail to state a claim, or which seek damages from defendants who are 11 immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 F.3d 1122, 12 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 13 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). Standard of Review 14 All complaints must contain “a short and plain statement of the claim showing that 15 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 16 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 18 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a 19 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 20 reviewing court to draw on its judicial experience and common sense.” Id. The “mere 21 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 22 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 23 “When there are well-pleaded factual allegations, a court should assume their 24 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 25 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 26 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 27 allegations of material fact and must construe those facts in the light most favorable to the 28 plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 4 3:17-cv-01287-JAH-JMA 1 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 2 However, while the court “ha[s] an obligation where the petitioner is pro se, 3 particularly in civil rights cases, to construe the pleadings liberally and to afford the 4 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 5 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply 6 essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the 7 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Plaintiff’s Allegations 8 B. 9 While Plaintiff’s factual allegations are sparse and conclusory, he claims Rashad 10 Johnson, his probation officer, “refused drug testing [him],” “forc[ed] [him] to urin[ate] in 11 a trash can at UCSD,” and then took him to jail “for no reason” on December 22, 2014. 12 See ECF No. 1 at 2, 3. Plaintiff further claims another probation officer, identified only as 13 Johnson’s “transferring partner,” used “excessive force” against him by “splittin[g] [his] 14 chin,” and an unidentified “EMT” in an ambulance handcuffed him while injured. Id. at 2. 15 Finally, Plaintiff claims San Diego Sheriff’s Department Deputy Ayehart “denied [him] 16 medical care in front of [a] nurse at George Bailey Detention Facility,” on an unspecified 17 occasion, and “kept [him] in for violation 120 days in County Jail.” Id. at 2, 5. 18 C. 19 “Section 1983 creates a private right of action against individuals who, acting under 20 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 21 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 22 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 23 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations 24 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 25 secured by the Constitution and laws of the United States, and (2) that the deprivation was 26 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 27 F.3d 1128, 1138 (9th Cir. 2012). 28 /// 42 U.S.C. § 1983 5 3:17-cv-01287-JAH-JMA 1 D. 2 First, to the extent Plaintiff seeks to sue the USCD Emergency Room and an 3 unidentified EMT, his Complaint fails to state a claim upon which § 1983 relief may be 4 granted because neither of these purported parties are alleged to be persons acting “under 5 color of state law.” Id. Proper Parties 6 As a general matter, private hospitals and medical officials are not state actors and 7 therefore cannot be sued under § 1983. See Briley v. California, 564 F.2d 849, 855-856 8 (9th Cir. 1977) (noting that “private hospitals and physicians have consistently been 9 dismissed from § 1983 actions for failing to come within the color of state law requirement 10 of this section.”); see also Babchuk v. Indiana Univ. Health, Inc., 809 F.3d 966, 970-71 11 (7th Cir. 2016). While Plaintiff might be able to hold these defendants liable if his 12 Complaint alleged facts sufficient to plausibly show that either UCSD or the EMT who 13 treated him contracted directly with the State or municipality to provide medical services 14 to persons within their custody, his pleading contains no such allegations. See West v. 15 Atkins, 487 U.S. 42, 53-54 (1988); cf., Lopez v. Dep’t of Health Servs., 939 F.2d 881, 883 16 (9th Cir. 1991) (per curiam) (finding state action where hospital “contract[ed] with the state 17 ... to provide medical services to indigent citizens”); George v. Sonoma Cnty. Sheriff’s 18 Dep’t, 732 F. Supp. 2d 922, 934 (N.D. Cal. 2010) (“A private ... hospital that contracts 19 with a public prison system to provide treatment for inmates performs a public function 20 and acts under color of law for purposes of § 1983.”); Coyle v. San Diego Sheriff’s Dep’t, 21 No. 3:16-CV-0667-GPC-JLB, 2016 WL 3523250, at *3 (S.D. Cal. June 28, 2016). 22 E. 23 Against the remaining Defendants, probation officer Rashad Johnson, Johnson’s 24 unidentified “transferring partner,” and San Diego Sheriff’s Department Deputy Ayehart, 25 Plaintiff seeks damages for actions allegedly committed by them in their official capacities. 26 See Compl., ECF No. 1 at 2. Official Capacity / Monell Claims 27 His Complaint fails to state a claim against these persons, however, because while 28 municipal officers may be sued in their official capacities, Plaintiff must allege facts to 6 3:17-cv-01287-JAH-JMA 1 plausibly show that the constitutional violations for which he seeks redress occurred as the 2 result of the municipality’s official policy or custom, Monell v. Dept. of Soc. Serv. of City 3 of N.Y., 436 U.S. 658, 690 (1978), or through the municipality’s failure to train its 4 employees adequately. City of Canton v. Harris, 489 U.S. 378, 388-91 (1989). 5 While individual-capacity actions seek to impose personal liability upon a 6 government official for actions performed under color of state law, official-capacity actions 7 generally represent another way of suing “an entity of which an officer is an agent.” 8 Kentucky v. Graham, 473 U.S. 159, 165 (1984) (quoting Monell, 436 U.S. at 690 n.55). 9 Local governments are responsible only for “their own illegal acts.” Pembaur v. Cincinnati, 10 475 U.S. 469, 479 (1986) (citing Monell, 436 U.S. at 665-683). They may not be held 11 vicariously liable under § 1983 for their employees’ actions. See Monell, 436 U.S. at 691; 12 Canton, 489 U.S. at 392; Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 13 (1997) (collecting cases). 14 In addition, a municipality’s failure to train its employees in a relevant respect must 15 amount to “deliberate indifference to the rights of persons with whom the [untrained 16 employees] come into contact.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (citing 17 Canton, 489 U.S. at 388). “Only then “can such a shortcoming be properly thought of as a 18 city ‘policy or custom’ that is actionable under § 1983.” Id. at 61 (citing Canton, 489 U.S. 19 at 389). 20 As it stands, Plaintiff’s Complaint contains none of these critical pleading 21 requirements. Therefore, it is subject to dismissal in its entirety for failing to state a claim 22 upon which § 1983 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b)(1); 23 Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 24 F. 25 Moreover, even if Plaintiff had sufficiently pleaded facts to establish municipal 26 liability, his Complaint alleges only violations of the Eighth Amendment’s prohibition on 27 “cruel and unusual punishments.” See Compl., ECF No. 1 at 3-4. The Eighth Amendment’s 28 prohibition of “cruel and unusual punishments” applies only “after conviction and Cruel and Unusual Punishment 7 3:17-cv-01287-JAH-JMA 1 sentence.” Graham v. Connor, 490 U.S. 386, 393 & n.6 (1989) (citing Ingraham v. Wright, 2 430 U.S. 651, 671 n.40 (1977)); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 3 2001). Therefore, any allegations of excessive force or inadequate medical treatment 4 arising during the course of an arrest or pretrial custody also fail to state an Eighth 5 Amendment claim as a matter of law. See, e.g., Langley v. Tulare Police Dep’t, et al., No. 6 1:16-CV-0336-DAD-SKO, 2017 WL 4151246, at *4 (E.D. Cal. Sept. 19, 2017). 7 G. 8 Finally, to the extent Plaintiff seeks damages for an unlawful or prolonged “120 days 9 in County Jail,” see Compl., ECF No. 1 at 5, based on what the Court presumes was due 10 to an alleged probation violation, Plaintiff cannot proceed under § 1983. Challenges to the 11 fact or duration of confinement must be brought in a habeas action, not in a civil rights 12 case. Habeas corpus “is the exclusive remedy ... for the prisoner who seeks ‘immediate or 13 speedier release’ from confinement.” Skinner v. Switzer, 562 U.S. 521, 525 (2011) (quoting 14 Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)). A challenge to the fact or duration of 15 confinement that would, if successful, result in immediate or speedier release falls within 16 the “core” of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 487-89 (1973); see also 17 Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam) (“Challenges to the validity 18 of any confinement or to particulars affecting its duration are the province of habeas 19 corpus.”); Cristiano v. Brown, No. 3:16-CV-3077-BEN-BLM, 2017 WL 3446812, at *3 20 (S.D. Cal. Aug. 9, 2017). 21 III. Unlawful Detention Conclusion and Orders 22 For the reasons explained, the Court: 23 1. 24 25 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2); 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 26 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 27 payments from his account in an amount equal to twenty percent (20%) of the preceding 28 month’s income and forwarding those payments to the Clerk of the Court each time the 8 3:17-cv-01287-JAH-JMA 1 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 2 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 3 THIS ACTION; 4 5 6 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 7 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and 8 GRANTS him forty-five (45) days leave from the date of this Order in which to file an 9 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 10 Amended Complaint must be complete by itself without reference to his original pleading. 11 Defendants not named and any claim not re-alleged in his Amended Complaint will be 12 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 13 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 14 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 15 dismissed with leave to amend which are not re-alleged in an amended pleading may be 16 “considered waived if not repled.”). 17 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 18 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state 19 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 20 1915A(b), and his failure to prosecute in compliance with a court order requiring 21 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 22 not take advantage of the opportunity to fix his complaint, a district court may convert the 23 dismissal of the complaint into dismissal of the entire action.”). 24 25 26 27 IT IS SO ORDERED. Dated: September 25, 2017 HON. JOHN A. HOUSTON United States District Judge 28 9 3:17-cv-01287-JAH-JMA

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