Taeotui v. San Diego County Registrar of Records Department, No. 3:2013cv02125 - Document 5 (S.D. Cal. 2014)
Court Description: ORDER granting 2 4 Motions for Leave to Proceed in forma pauperis. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $9.89 initial filing fee assessed by this Order, and shall forward the reamining � 36;340.11 balance of the full fee owed 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 t he account exceeds $10 in accordance with 28 USC 1915(b)(2). Plaintiff's Amended Complaint is dismissed without prejudice for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRAN TED forty five (45) days leave from the date this Order is entered into the Court's docket in which to re-open the case by filing a Second Amended Complaint. (Order electronically transmitted to Secretary of CDCR). Signed by Judge Larry Alan Burns on 3/3/14. (All non-registered users served via U.S. Mail Service)(kaj)
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Taeotui v. San Diego County Registrar of Records Department Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 PENIFOTI TAEOTUI, CDCR #G-46032, Civil No. Plaintiff, 13 vs. 16 17 18 ORDER: (1) GRANTING PLAINTIFF’S MOTIONS TO PROCEED IN FORMA PAUPERIS [ECF Doc. Nos. 2, 4] 14 15 13cv2125 LAB (DHB) AND SAN DIEGO COUNTY REGISTRAR OF RECORDS DEPARTMENT, 19 Defendant. 20 (2) SUA SPONTE DISMISSING AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) AND § 1915A(b) [ECF Doc. No. 3] 21 22 Penifoti Taeotui (“Plaintiff”), currently incarcerated at Kern Valley State Prison 23 (“KVSP”) in Delano, California, and proceeding pro se, has initiated this civil action 24 seeking “federal injunctive relief” pursuant to the Freedom of Information Act (“FOIA”), 25 5 U.S.C. § 552a, and FED.R.CIV.P. 60(b). 26 Plaintiff seeks “to be released from prison,” on grounds that Rule 60(b)(5) 27 provides him with a mechanism by which he may “attack judgments already deemed 28 /// I:\Everyone\_EFILE-PROSE\LAB\13cv2125-grt IFP & dsm.wpd 1 13cv2125 LAB (DHB) Dockets.Justia.com 1 final.” See Amend. Compl. (ECF Doc. No. 3) at 2.1 While altogether unclear, it appears 2 Plaintiff seeks the disclosure of “criminal bond information” from the San Diego County 3 Registrar of Records related to the state court proceedings which resulted in his 4 conviction. Id. at 1, 3 (citing San Diego Superior Court Case No. SCN 222540). 5 Plaintiff has not prepaid the $400 civil filing fee required to commence a civil 6 action pursuant to 28 U.S.C. § 1914(a); instead he has filed a Motion to Proceed In 7 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2), as well as 8 a Supplemental Motion to Proceed IFP (ECF Doc. No. 4), which includes the certified 9 trust account certification required by 28 U.S.C. § 1915(b). 10 I. MOTIONS TO PROCEED IFP 11 All parties instituting any civil action, suit or proceeding in a district court of the 12 United States, except an application for writ of habeas corpus, must pay a filing fee. See 13 28 U.S.C. § 1914(a).2 An action may proceed despite the plaintiff’s failure to prepay the 14 entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 15 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a 16 prisoner and is granted leave to proceed IFP, he nevertheless remains obligated to pay 17 the entire fee in installments, regardless of whether his action is ultimately dismissed. 18 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 19 2002). 20 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 21 (“PLRA”), a prisoner seeking leave to proceed IFP must also submit a “certified copy 22 of the trust fund account statement (or institutional equivalent) for ... the six-month 23 1 Plaintiff submitted an Amended Complaint (ECF Doc. No. 3) as a matter of course pursuant to FED.R.CIV.P. 15(a)(1) before the Court had an opportunity to screen his original pleading. While an amended pleading supersedes the original, both Plaintiff’s original 25 Complaint (ECF Doc. No. 1) and his Amended Complaint (ECF Doc. No. 3) are identical. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989). 24 26 2 In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a), (b); Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule (eff. May 1, 2013). However, 28 the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id. 27 I:\Everyone\_EFILE-PROSE\LAB\13cv2125-grt IFP & dsm.wpd 2 13cv2125 LAB (DHB) 1 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 2 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 3 statement, the Court must assess an initial payment of 20% of (a) the average monthly 4 deposits in the account for the past six months, or (b) the average monthly balance in the 5 account for the past six months, whichever is greater, unless the prisoner has no assets. 6 See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of 7 the prisoner must collect subsequent payments, assessed at 20% of the preceding 8 month’s income, in any month in which the prisoner’s account exceeds $10, and forward 9 those payments to the Court until the entire filing fee is paid. 10 See 28 U.S.C. § 1915(b)(2). 11 In support of his IFP motions, Plaintiff has submitted the certified copies of his 12 trust account statements required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. 13 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statements, 14 as well as the attached certificate of funds issued by a trust account official at KVSP 15 where he is currently incarcerated verifying his account history and available balances. 16 Plaintiff’s statements show an average monthly balance of $5.89, average monthly 17 deposits of $49.49, and an available balance of $1.17 at the time it was submitted to the 18 Court for filing. Based on this financial information, the Court GRANTS Plaintiff’s 19 Motions to Proceed IFP (ECF Doc. Nos. 2, 4) and assesses an initial partial filing fee of 20 $9.89 pursuant to 28 U.S.C. § 1915(b)(1). 21 However, the Secretary of the California Department of Corrections and 22 Rehabilitation, or his designee, shall collect this initial fee only if sufficient funds in 23 Plaintiff’s account are available at the time this Order is executed pursuant to the 24 directions set forth below. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event 25 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or 26 criminal judgment for the reason that the prisoner has no assets and no means by which 27 to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 28 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based I:\Everyone\_EFILE-PROSE\LAB\13cv2125-grt IFP & dsm.wpd 3 13cv2125 LAB (DHB) 1 solely on a “failure to pay ... due to the lack of funds available to him when payment is 2 ordered.”). The remaining balance of the $350 total owed in this case shall be collected 3 and forwarded to the Clerk of the Court pursuant to the installment payment provisions 4 set forth in 28 U.S.C. § 1915(b)(1). 5 II. INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) AND 1915A(b)(1) 6 Notwithstanding IFP status or the payment of any partial filing fees, the PLRA 7 also obligates the Court to review complaints filed by all persons proceeding IFP and by 8 those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, 9 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 10 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 11 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 12 provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions 13 thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from 14 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. 15 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. 16 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 17 All complaints must contain “a short and plain statement of the claim showing that 18 the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are 19 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 20 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 21 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 22 whether a complaint states a plausible claim for relief [is] ... a context-specific task that 23 requires the reviewing court to draw on its judicial experience and common sense.” Id. 24 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 25 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 26 “When there are well-pleaded factual allegations, a court should assume their 27 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 28 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) I:\Everyone\_EFILE-PROSE\LAB\13cv2125-grt IFP & dsm.wpd 4 13cv2125 LAB (DHB) 1 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 2 allegations of material fact and must construe those facts in the light most favorable to 3 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 4 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 5 However, while the court “ha[s] an obligation where the petitioner is pro se, 6 particularly in civil rights cases, to construe the pleadings liberally and to afford the 7 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 8 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not, in 9 so doing, “supply essential elements of claims that were not initially pled.” Ivey v. Board 10 of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and 11 conclusory allegations of official participation in civil rights violations are not sufficient 12 to withstand a motion to dismiss.” Id. 13 A. Freedom of Information Act 14 Plaintiff first invokes jurisdiction in this case under the “Freedom of Information 15 Act” (FOIA) and pursuant to 5 U.S.C. 552(a)(4)(B).3 See Amend. Compl. (ECF Doc. 16 No. 3) at 1. 17 The FOIA “provides for the mandatory disclosure of information held by federal 18 agencies, unless the requested material is exempt from mandatory disclosure.” NLRB v. 19 Robbins Tire & Rubber Co., 437 U.S. 214, 220-21 (1978). Upon request, FOIA 20 mandates disclosure of records held by a federal agency unless the documents fall within 21 certain enumerated exemptions. Dep’t of Interior v. Klamath Water Users Protective 22 Assoc., 532 U.S. 1, 8 (2001). 23 In this case, Plaintiff’s attempt to seek injunctive relief under the FOIA against the 24 “San Diego County Registrar of Records Department” necessarily fails to state a claim 25 because the statute only applies to federal agencies. See 5 U.S.C. §§ 552a(a)(1), 552(f). 26 Neither the County of San Diego, the County Clerk, or the Clerk of Court, any of which 27 3 28 Pursuant to 5 U.S.C. § 552(a)(4)(B), the district court has jurisdiction “to enjoin the agency from withholding agency records and to order the production of any agency records improperly held from the complainant.” 5 U.S.C.A. § 552(a)(4)(B) (West 2010). I:\Everyone\_EFILE-PROSE\LAB\13cv2125-grt IFP & dsm.wpd 5 13cv2125 LAB (DHB) 1 might retain the “criminal bond information” Plaintiff seeks, is a federal agency.4 The 2 definition of “agency” under the FOIA simply does not encompass state agencies or 3 bodies, even if they are alleged to receive federal funds subject to federal regulation. See 4 St. Michael’s Convalescent Hosp. v. California, 643 F.2d 1369, 1373-74 (9th Cir. 1981); 5 see also 5 U.S.C. § 552(f)(1) (providing that “‘agency’ as defined in section 551(1) of 6 this title includes any executive department, military department, Government 7 corporation, Government controlled corporation, or other establishment in the executive 8 branch of the Government (including the Executive Office of the President), or any 9 independent regulatory agency.”); Hammerlord v. City of San Diego, 2012 WL 5388919 10 at *5 (S.D. Cal. Nov. 2, 2012) (unpub.) (dismissing FOIA claims because “[n]either the 11 City of San Diego nor the SDPD (San Diego Police Dept.) is a federal agency.”). 12 B. FED.R.CIV.P. 60(b)(4) & (5) 13 Plaintiff also cites FED.R.CIV.P. 60(b) as a basis for “discharg[ing] [him] from his 14 current ... obligation” and “releas[ing] [him] from prison.” See Amend. Compl. at 2. 15 Rule 60 is a Federal Rule of Civil Procedure that, under certain circumstances, can 16 provide a party in a federal civil action relief from a judgment or order. FED.R.CIV.P. 17 60(a), (b). The Federal Rules of Civil Procedure, by their own terms, apply only to civil 18 actions. See FED.R.CIV.P. 1 (stating that “these rules govern the procedure ... in all suits 19 of a civil nature”). “[A]n action under Rule 60(b) of the Federal Rules of Civil 20 Procedure cannot be used to collaterally attack a criminal conviction.” Dubin v. Real, 21 191 Fed. Appx. 528, 530, 2006 WL 1876846 at *1 (9th Cir. 2006) (unpub. table disp.) 22 (noting that “[e]very circuit that has addressed the question has agreed that a defendant 23 may not bring an action for fraud upon the court to collaterally attack a criminal 24 4 Prior to amendment by the California legislature in 2002, Section 4, Art. VI of the California Constitution provided that the “county clerk is ex officio clerk of the superior court in the county.” See Zumwalt v. Superior Court of San I Diego, 49 Cal.3d 167, 175 (Cal. 1989) 26 (in bank) (citing former CAL. GOV’T CODE § 69898). Effective January 1, 2003, § 69898 was superseded by CAL. GOV’T CODE § 69840, which relieved the county clerk of the “powers, 27 duties, and responsibilities required or permitted to be exercised by the county clerk in connection with judicial actions, proceedings, and records” and vested those powers, duties, and 28 responsibilities in the clerk of court instead. See 2 WITKIN, CAL. PROC. 5TH, COURTS, § 360 at 460 (2008). 25 I:\Everyone\_EFILE-PROSE\LAB\13cv2125-grt IFP & dsm.wpd 6 13cv2125 LAB (DHB) 1 conviction.”) (citing United States v. O’Keefe, 169 F.3d 281, 285 (5th Cir. 1999) (noting 2 that Supreme Court precedent “certainly does not require or contemplate that Rule 3 60(b)(6) [for fraud upon the court] ... be applied in criminal cases”); United States v. 4 Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (“We hold that the defendant cannot 5 challenge the criminal forfeiture orders at issue under the Federal Rules of Civil 6 Procedure.... Rule 60(b) simply does not provide for relief from judgment in a criminal 7 case ....”); see also United States v. Diaz, 2003 WL 22434557 (6th Cir. 2003) (same); 8 United States v. Gross, 2003 WL 21978748 (4th Cir. 2003) (same); United States v. 9 Ramsey, 106 F.3d 404, 1997 WL 14152 (7th Cir. 1997) (same). 10 III. CONCLUSION AND ORDER 11 Good cause appearing, IT IS HEREBY ORDERED that: 12 1. 13 14 Plaintiff’s Motions to proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Doc. Nos. 2, 4) are GRANTED. 2. The Secretary of the California Department of Corrections and 15 Rehabilitation, or his designee, shall collect the $9.89 initial filing fee assessed by this 16 Order from Plaintiff’s prison trust account, and shall forward the remaining $340.11 17 balance of the full fee owed by collecting monthly payments from Plaintiff’s account in 18 an amount equal to twenty percent (20%) of the preceding month’s income and shall 19 forward payments to the Clerk of the Court each time the amount in the account exceeds 20 $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE 21 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 22 ACTION. 23 3. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey 24 A. Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 25 942883, Sacramento, California, 94283-0001. 26 IT IS FURTHER ORDERED that: 27 4. 28 Plaintiff’s Amended Complaint (ECF Doc. No. 3) is DISMISSED without prejudice for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and I:\Everyone\_EFILE-PROSE\LAB\13cv2125-grt IFP & dsm.wpd 7 13cv2125 LAB (DHB) 1 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave from the date this 2 Order is entered into the Court’s docket in which to re-open the case by filing a Second 3 Amended Complaint. 4 appropriate basis for federal jurisdiction, and if possible, address the deficiencies of 5 pleading noted in this Order. Plaintiff’s Second Amended Complaint must also be 6 complete in itself without reference to either his original or his First Amended 7 Complaint. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 (“[A]n 8 amended pleading supersedes the original.”); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 9 1987) (citation omitted) (“All causes of action alleged in an original complaint which are 10 Plaintiff’s Second Amended Complaint must identify an not alleged in an amended complaint are waived.”). 11 Should Plaintiff fail to file a Second Amended Complaint within the time 12 provided, this case shall remain closed and the action shall remain dismissed without 13 prejudice based on Plaintiff’s failure to state a claim upon which relief can be granted 14 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). 15 DATED: March 3, 2014 16 17 HONORABLE LARRY ALAN BURNS United States District Judge 18 19 20 21 22 23 24 25 26 27 28 I:\Everyone\_EFILE-PROSE\LAB\13cv2125-grt IFP & dsm.wpd 8 13cv2125 LAB (DHB)
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