Haeussinger v. Gore et al, No. 3:2022cv00186 - Document 7 (S.D. Cal. 2022)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis. And Dismissing Complaint Without Prejudice. Case Closed Deadline 12/23/2022.. Signed by District Judge Robert S. Huie on 11/22/2022. (All non-registered users served via U.S. Mail Service)(alns)
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Haeussinger v. Gore et al Doc. 7 Case 3:22-cv-00186-RSH-DDL Document 7 Filed 11/22/22 PageID.18 Page 1 of 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 22-CV-186-RSH-DDL SEAN D. HAEUSSINGER, II, Plaintiff, 12 13 v. 14 BILL GORE, et al., ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITHOUT PREJUDICE Defendants. 15 [ECF No. 2] 16 17 18 19 This Order addresses Plaintiff’s motion to proceed in forma pauperis (“IFP”). The 20 Court GRANTS Plaintiff’s IFP motion and, after screening the Complaint, DISMISSES 21 the Complaint without prejudice. 22 I. MOTION TO PROCEED IFP 23 “Plaintiffs normally must pay $350 1 to file a civil complaint in federal district court, 24 28 U.S.C. § 1914(a), but 28 U.S.C. § 1915(a)(1) allows the district court to waive the fee, 25 26 27 1 28 In addition to the $350 statutory fee, civil litigants ordinarily must pay an administrative fee of $52. See 28 U.S.C. § 1914(b); J. Conference Sched. of Fees, D. Ct. 1 22-CV-186-RSH-DDL Dockets.Justia.com Case 3:22-cv-00186-RSH-DDL Document 7 Filed 11/22/22 PageID.19 Page 2 of 6 1 for most individuals unable to afford it, by granting IFP status.” Andrews v. Cervantes, 493 2 F.3d 1047, 1051 (9th Cir. 2007). A court may authorize the commencement of a suit 3 without prepayment of fees if a plaintiff submits an affidavit, including a statement of all 4 his assets, showing that he is unable to pay the filing fee. 28 U.S.C. § 1915(a). The 5 determination of indigency falls within the district court’s discretion. Cal. Men’s Colony 6 v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 U.S. 194 7 (1993). A party need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont de 8 Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. § 9 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because of his 10 poverty pay or give security for costs . . . and still be able to provide himself and dependents 11 with the necessities of life.” Id. at 339. 12 Plaintiff submits an affidavit indicating that he and his spouse are currently 13 unemployed and have fewer than five dollars in their bank accounts. ECF No. 2 at 2. 14 Plaintiff owns no assets. Id. at 3. The Court finds that the affidavit sufficiently shows that 15 Plaintiff is unable to pay the filing fee. If, however, it appears at any time in the future that 16 Plaintiff’s financial picture has improved, the Court will direct Plaintiff to pay the filing 17 fee to the Clerk of the Court. This includes any recovery that Plaintiff may realize from 18 this suit or others, and any assistance Plaintiff may receive from family or the government. 19 II. INITIAL SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 20 The Court is obligated to screen all cases filed IFP pursuant to 28 U.S.C. § 21 1915(e)(2)(B); see Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions 22 of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). Under that provision, the Court 23 “shall dismiss” the case if it determines that the action is frivolous or malicious, fails to 24 state a claim on which relief may be granted, or seeks relief against a defendant who is 25 immune from such relief. 26 27 28 Misc. Fee Sched., § 14 (eff. Dec. 1, 2020). The additional administrative fee, however, does not apply to persons granted leave to proceed IFP. Id. 2 22-CV-186-RSH-DDL Case 3:22-cv-00186-RSH-DDL Document 7 Filed 11/22/22 PageID.20 Page 3 of 6 1 A. 2 Plaintiff’s allegations arise from a February 6, 2020 incident at Grossmont College’s 3 Office of Student Health Services, during which Plaintiff claims Elaine Adlam, a registered 4 nurse, and Julie Little, a social worker – neither of whom are defendants – “obstructed 5 access to [his] [mental-health intake] appointment in retaliation for acting as a student- 6 complainant with disabilities.” ECF No. 1 at 2. Shortly afterwards, Defendants Dean Allen 7 and Alfred Gathings, who are Deputy Sheriffs and Counseling and Psychological Services 8 (CAPS) Officers for Grossmont College, allegedly “breeched the office,” and “interfered” 9 with a discussion involving Plaintiff. Id. Plaintiff alleges Defendant Allen “snapped his 10 fingers against the left side of [Plaintiff’s] face for ignoring him . . . and defiantly asked 11 ‘Or what?’ when [Plaintiff] told him not to.” Id. Plaintiff claims Allen then “told [Plaintiff] 12 lies that Little told [Allen]; i.e., that [Plaintiff] ‘blocked’ or ‘locked’ [Little’s] egress.” Id. 13 According to Plaintiff, that lie gave him a panic attack and gave him a flashback to an 14 unrelated 2012 assault and battery. Id. Plaintiff further alleges that Defendant Gathings 15 “acted inappropriately” by suggesting that Plaintiff’s complaint concerning Adlam and 16 Little was “inappropriate” and by saying “it was okay for Allen to insult my appearance 17 (where I ‘looked like [I] need[ed] services’).” Id. PLAINTIFF’S COMPLAINT 18 Plaintiff further alleges that Defendant Kenneth Jones, from Internal Affairs, issued 19 a September 16, 2020 letter that found no misconduct arising from the incident. Id. The 20 Complaint claims that Jones’s letter engaged in “DARVO (Deny, Attack, Reverse 21 Victim/Offender),” and “guiltily specified that Allen hit the front of [Plaintiff’s] face, and 22 that [Plaintiff] was in the wrong for being a disabled accuser.” The letter, according to 23 Plaintiff, “wrongly insinuated that the bodycam footage did not support [Plaintiff’s] 24 allegations, and that [Plaintiff] was somehow liable for the consequences of Adlam’s and 25 Little’s actions.” Id. 26 Plaintiff does not identify a cause of action, or allege a violation of any federal law 27 or provision of the U.S. Constitution. He alleges instead that Defendants Allen and 28 Gathings engaged in behavior punishable under California’s conspiracy and hate crime 3 22-CV-186-RSH-DDL Case 3:22-cv-00186-RSH-DDL Document 7 Filed 11/22/22 PageID.21 Page 4 of 6 1 penal code provisions. Id. (citing Cal. Penal Code §§ 182, 422.6, 422.7). Plaintiff requests 2 a preliminary injunction “enjoining the knowing and willful distortion of allegations, facts, 3 and evidence that is or ought to already be enjoined . . . and any other means for accused 4 ‘Peace’ Officers to avoid responsibility at the expense of injustice to accusers.” Id. at 3. He 5 also requests court orders terminating Defendants Allen and Gathings from their positions 6 as Deputy Sheriffs and CAPS Officers, forever barring them from working in law 7 enforcement, and requiring the District Attorney to file a criminal action against 8 Defendants. 9 B. DISCUSSION 10 The Court must liberally construe Plaintiff’s Complaint and analyze whether it 11 plausibly states a claim for relief. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A 12 document filed pro se is ‘to be liberally construed’ and ‘a pro se complaint, however 13 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted 14 by lawyers.”) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). 15 However, it is unclear what claims Plaintiff pursues. To the extent Plaintiff invokes 16 California Penal Code Sections 182, 422.6, and 422.7 to argue that Defendants should be 17 prosecuted, ECF No. 1 at 2, he fails to state a claim because “a private citizen lacks a 18 judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. 19 v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable 20 interest in the prosecution or nonprosecution of another.”). 21 22 Plaintiff does not cite any other state or federal law, or any Constitutional provision, that would provide a cause of action. 23 The Complaint includes no allegations regarding Defendant Bill Gore, and thus fails 24 to state a claim with respect to that Defendant. The Complaint also fails to allege facts 25 plausibly supporting a claim for relief against Defendant Jones; Plaintiff’s mere 26 27 28 4 22-CV-186-RSH-DDL Case 3:22-cv-00186-RSH-DDL Document 7 Filed 11/22/22 PageID.22 Page 5 of 6 1 disagreement with the September 16, 2020 Internal Affairs letter is insufficient.2 ECF No. 2 1 at 2. Likewise, Plaintiff’s allegations that Defendant Gathings described Plaintiff’s 3 complaints as “inappropriate” or “suggest[ed] . . . that it was okay for Allen to insult my 4 appearance (where I ‘looked like [I] need[ed] services’)” fails to state a plausible ground 5 for relief. 6 Plaintiff’s Complaint also fails to state claim with respect to Defendant Allen. To 7 the extent Plaintiff’s allegations are read as alleging use of excessive force in violation of 8 the Fourth Amendment, in order to state such a claim, a plaintiff must allege facts sufficient 9 to establish a seizure in which “the officers used excessive force, i.e., force that was not 10 ‘objectively reasonable’ in light of the facts and circumstances confronting the 11 officer.” Robinson v. Solano Cty., 278 F.3d 1007, 1013 (9th Cir. 2002) (quoting Graham 12 v. Connor, 490 U.S. 386, 397). Plaintiff alleges that Allen “snapped his fingers against the 13 left side of [Plaintiff’s] face.” ECF No. 1 at 2. Defendant Allen allegedly did this because 14 Plaintiff was “ignoring him.” Id. Even as alleged, there is no seizure, and this is a de 15 minimis use of force that is insufficient to support a constitutional claim for excessive force. 16 See Graham, 490 U.S. at 396 (“‘Not every push or shove, even if it may later seem 17 unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment.”) 18 (citation omitted); Tuttelman v. City Of San Jose, 420 F. App’x 758, 763 (9th Cir. 2011) 19 (finding officer’s act of grasping wrist after refusal to comply was the “sort of de minimis 20 use of force [that] cannot ground an excessive force claim under the Fourth Amendment”).3 21 22 23 24 25 26 2 To the extent Plaintiff alleges fraud by Defendant Jones in relation to the September 16, 2020 Internal Affairs letter, he must “state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). 27 3 28 Plaintiff’s allegations that Defendant Allen “told me lies that Little told him,” ECF No. 1 at 2, does not sufficiently allege facts creating a plausible basis for relief. 5 22-CV-186-RSH-DDL Case 3:22-cv-00186-RSH-DDL Document 7 Filed 11/22/22 PageID.23 Page 6 of 6 1 III. CONCLUSION 2 For the foregoing reasons, the Court DISMISSES the Complaint without prejudice. 3 The court is unprepared to declare that amendment would be absolutely futile at this stage. 4 See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be 5 given leave to amend his or her complaint, and some notice of its deficiencies, unless it is 6 absolutely clear that the deficiencies of the complaint could not be cured by amendment.”) 7 (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). Plaintiff may file an amended 8 complaint within thirty (30) days of the date of this Order. If Plaintiff does not file an 9 amended complaint in that time, the action will be dismissed. 10 IT IS SO ORDERED. 11 Dated: November 22, 2022 ____________________ Hon. Robert S. Huie United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 22-CV-186-RSH-DDL
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