Taylor Jones v. Allie, No. 3:2013cv00104 - Document 4 (S.D. Cal. 2013)
Court Description: ORDER granting Plaintiff's 3 Motion for Leave to Proceed in Forma Pauperis. The Watch Commander of George Bailey Detention Facility 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 time the amount in the account exceeds $ 10 in accordance with 28 USC 1915(b)(2). Pla's Complaint is dismissed for failing to state a claim upon which relief may be granted pursuant to 28 USC 1915(e)(2)(B) and 1915A(b). Pla is granted 45 days leave from the date this Order is filed to file a First Amended Complaint. Pla's Amended Complaint must be complete in itself w/o reference to the superseding pleading. If Pla's Amended Complaint fails to state a claim upon which relief may be granted, it may be dismissed w/o furth er leave to amend and may be counted as a "strike" under 28 USC 1915(g). Signed by Judge Irma E. Gonzalez on 2/6/2013. (cc: Watch Commander, George Bailey Detention Facility) (Blank 1983 First Amended Complaint form t/w copy of this Order mailed to Plaintiff) (All non-registered users served via U.S. Mail Service) (jah)
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Taylor Jones v. Allie Doc. 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JAMES EVERETT TAYLOR JONES, Inmate Booking No. 1256782, Civil No. Plaintiff, 13 vs. 16 17 (2) DISMISSING ACTION WITHOUT PREJUDICE FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b) DON ALLIE, U.S. Marshal, 18 19 (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE AND GARNISHING $350.00 BALANCE FROM INMATES’S TRUST ACCOUNT; and 14 15 13cv0104 IEG (JMA) Defendant. [ECF No. 3] 20 21 22 23 James Everett Taylor Jones (“Plaintiff”), an inmate currently housed at the George Bailey 24 Detention Facility located in San Diego, California, and proceeding pro se, has submitted a civil 25 action. In addition, Plaintiff has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 26 to 28 U.S.C. § 1915(a) [ECF No. 3]. 27 /// 28 /// -1- 13cv0104 IEG (JMA) Dockets.Justia.com 1 I. 2 MOTION TO PROCEED IFP [ECF No. 3] 3 All parties instituting any civil action, suit or proceeding in a district court of the United 4 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 5 U.S.C. § 1914(a). An action may proceed despite a party’s failure to prepay the entire fee only 6 if that party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however, 8 remain obligated to pay the entire fee in installments, regardless of whether their action is 9 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 10 (9th Cir. 2002). 11 The Court finds that Plaintiff has attached a certified copy of his trust account statement 12 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff’s trust account statement 13 indicates that he has insufficient funds from which to pay filing fees at this time. See 28 U.S.C. 14 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil 15 action or appealing a civil action or criminal judgment for the reason that the prisoner has no 16 assets and no means by which to pay the initial partial filing fee.”). Therefore, the Court 17 GRANTS Plaintiff’s Motion to Proceed IFP [ECF No. 3] and assesses no initial partial filing 18 fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fees mandated 19 shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment 20 provisions set forth in 28 U.S.C. § 1915(b)(1). 21 II. 22 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 23 Notwithstanding payment of any filing fee or portion thereof, the Prison Litigation 24 Reform Act (“PLRA”) requires courts to review complaints filed by prisoners against officers 25 or employees of governmental entities and dismiss those or any portion of those found frivolous, 26 malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief 27 from a defendant immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez 28 -2- 13cv0104 IEG (JMA) 1 v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 2 F.3d 443, 446 (9th Cir. 2000) (§ 1915A). 3 Prior to the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only 4 frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. However 28 U.S.C. 5 §§ 1915(e)(2) and 1915A now mandate that the court reviewing a prisoner’s suit make and rule 6 on its own motion to dismiss before directing that the complaint be served by the U.S. Marshal 7 pursuant to FED. R. CIV. P. 4(c)(2). Id. at 1127 (“[S]ection 1915(e) not only permits, but requires 8 a district court to dismiss an in forma pauperis complaint that fails to state a claim.”); Barren v. 9 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). The district court should grant leave to 10 amend, however, unless it determines that “the pleading could not possibly be cured by the 11 allegation of other facts” and if it appears “at all possible that the plaintiff can correct the 12 defect.” Lopez, 203 F.3d at 1130-31 (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 13 1995); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir. 1990)). 14 “[W]hen determining whether a complaint states a claim, a court must accept as true all 15 allegations of material fact and must construe those facts in the light most favorable to the 16 plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) 17 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). However, while liberal 18 construction is “particularly important in civil rights cases,” Ferdik v. Bonzelet, 963 F.2d 1258, 19 1261 (9th Cir. 1992), the court may nevertheless not “supply essential elements of the claim that 20 were not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 21 (9th Cir. 1982). 22 As currently pleaded, it is clear that Plaintiff’s Complaint fails to state a cognizable claim 23 under 42 U.S.C. § 1983. Section 1983 imposes two essential proof requirements upon a 24 claimant: (1) that a person acting under color of state law committed the conduct at issue, and 25 (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the 26 Constitution or laws of the United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 27 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); 28 Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). -3- 13cv0104 IEG (JMA) 1 Plaintiff claims that Defendant Allie, a Deputy U.S. Marshal, illegally wiretapped his 2 mother’s cell phone which led to his arrest and pending court criminal proceedings. (See Compl. 3 at 1-3.) 4 Defendant to arise under the Fourth Amendment. While not entirely clear, it appears that 5 Plaintiff is claiming that the evidence obtained during the searches by Defendant Allie have been 6 used against him in his ongoing criminal proceedings. Here, the Court will liberally construe Plaintiff’s unlawful search claims against 7 In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that: 8 in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal .... Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. 9 10 11 12 13 14 Id. at 486-87 (footnote omitted). 15 As to Fourth Amendment claims under Heck specifically, the Ninth Circuit has further 16 held that “a § 1983 action alleging illegal search and seizure of evidence upon which criminal 17 charges are based does not accrue until the criminal charges have been dismissed or the 18 conviction has been overturned.” Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000) 19 (quoting Heck, 512 U.S. at 484-85) (emphasis added) (“Such a holding will avoid the potential 20 for inconsistent determinations on the legality of a search and seizure in the civil and criminal 21 cases and will therefore fulfill the Heck Court’s objectives of preserving consistency and finality, 22 and preventing ‘a collateral attack on [a] conviction through the vehicle of a civil suit.’”). 23 Here, Plaintiff challenges the validity of the search that led to his criminal proceedings. 24 Therefore, like the Plaintiff in Harvey, Plaintiff’s Fourth Amendment claims are precluded by 25 Heck. 26 allegedly unlawful search-gaming devices-was an essential element of the crime of which 27 Harvey was charged-illegal possession of gaming devices.”). Since Plaintiff was arrested and 28 criminal charges are pending, “a § 1983 action challenging the legality of the search and See Harvey, 210 F.3d at 1015-16 (“In the present case, the evidence seized in the -4- 13cv0104 IEG (JMA) 1 resulting seizure of this evidence, if successful,” would “necessarily imply the invalidity” of his 2 conviction, and is not cognizable under Heck, unless Plaintiff can show his conviction has 3 already been invalidated. Id. 4 Thus, Plaintiff’s Complaint must be dismissed sua sponte for failing to state a claim upon 5 which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b)(1); Lopez, 203 F.3d 6 at 1127; Calhoun, 254 F.3d at 845; Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 7 1995) (actions barred by Heck should be dismissed for failure to state a claim without prejudice 8 to re-alleging claims for damages after the underlying conviction has been invalidated). 9 III. 10 CONCLUSION AND ORDER 11 Good cause appearing, IT IS HEREBY ORDERED: 12 1. 13 14 Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 3] is GRANTED. 2. The Watch Commander of the George Bailey Detention Facility, or his designee, 15 shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee owed in this 16 case by collecting monthly payments from the account in an amount equal to twenty percent 17 (20%) of the preceding month’s income and forward payments to the Clerk of the Court each 18 time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL 19 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 20 ASSIGNED TO THIS ACTION. 21 3. The Clerk of the Court is directed to serve a copy of this Order on Watch 22 Commander, George Bailey Detention Facility, 446 Alta Road, Suite 5300, San Diego, 23 California, 92158. 24 IT IS FURTHER ORDERED that: 25 4. Plaintiff’s Complaint is DISMISSED for failing to state a claim upon which relief 26 may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). However, Plaintiff is 27 GRANTED forty five (45) days leave from the date this Order is “Filed” in which to file a First 28 Amended Complaint which cures all the deficiencies of pleading noted above. Plaintiff’s -5- 13cv0104 IEG (JMA) 1 Amended Complaint must be complete in itself without reference to the superseded pleading. 2 See S.D. Cal. Civ. L. R. 15.1. Defendants not named and all claims not re-alleged in the 3 Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 565, 4 567 (9th Cir. 1987). Further, if Plaintiff’s Amended Complaint fails to state a claim upon which 5 relief may be granted, it may be dismissed without further leave to amend and may hereafter 6 be counted as a “strike” under 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177- 7 79 (9th Cir. 1996). 8 9 5. The Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff. DATED: February 6, 2013 _______________________________________ 10 HON. IRMA E. GONZALEZ United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- 13cv0104 IEG (JMA)
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