Johnson v. San Diego Sheriffs Dept, No. 3:2018cv01846 - Document 3 (S.D. Cal. 2018)
Court Description: ORDER Granting Motion for Leave to Proceed in forma pauperis (ECF No. 2 ); and Dismissing Complaint for Failure to State a Claim Pursuant to 28 U.S.C. § 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 th e Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). The Court directs the Clerk of the Court to serve a copy of this Order on Watch Commander, George F. Bailey Detention Facility, San Diego, California. The Court grants Plaintiff forty-five (45) days leave to file a First Amended Complaint which cures all the deficiencies of pleading described in this Order. The Clerk of Court is directed to mail Plaintiff a court-approved form civil ri ghts complaint for his use in amending. Signed by Judge Larry Alan Burns on 8/27/2018. (All non-registered users served via U.S. Mail Service) (Copy of order and blank civil-rights complaint form sent to Plaintiff via U.S. Mail. Copy of order sent to Watch Commander of the George F. Bailey Detention Facility via U.S. Mail.) (jdt)
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Johnson v. San Diego Sheriffs Dept Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 CLYDE JOHNSON, Inmate Booking #1717643, ORDER: Plaintiff, 13 vs. 14 15 Case No.: 3:18-cv-01846-LAB-RBB (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2]; AND SAN DIEGO SHERIFF'S DEPARTMENT, 16 Defendants. (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) 17 18 19 20 21 22 23 Clyde Johnson (“Plaintiff”), currently incarcerated at the George Bailey Detention 24 Facility (“GBDF”) located in San Diego, California, and proceeding pro se, has filed this 25 civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) In addition, Plaintiff has 26 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 27 (ECF No. 2.) 28 /// 1 3:18-cv-01846-LAB-RBB Dockets.Justia.com 1 II. 2 Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400. 1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, 7 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in 8 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 9 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 10 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 11 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly 18 balance in the account for the past six months, whichever is greater, unless the prisoner 19 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 20 custody of the prisoner then collects subsequent payments, assessed at 20% of the 21 preceding month’s income, in any month in which his account exceeds $10, and forwards 22 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 23 Bruce, 136 S. Ct. at 629. 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 3:18-cv-01846-LAB-RBB 1 In support of his IFP Motion, Plaintiff has submitted a prison certificate authorized 2 by a GBDF administrative lieutenant attesting to his trust account activity. See ECF No. 2 3 at 5; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These 4 statements show Plaintiff has had no monthly deposits to his account, has carried no 5 balance over the six month period preceding the filing of his Complaint, and that his 6 current available balance is $0.26. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no 7 event shall a prisoner be prohibited from bringing a civil action or appealing a civil action 8 or criminal judgment for the reason that the prisoner has no assets and no means by 9 which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 10 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of 11 a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 12 available to him when payment is ordered.”). 13 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), 14 declines to “exact” any initial filing fee because his trust account statement shows he “has 15 no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Watch Commander at 16 GBDF to instead collect the entire $350 balance of the filing fees required by 28 U.S.C. 17 § 1914 and forward them to the Clerk of the Court pursuant to the installment payment 18 provisions set forth in 28 U.S.C. § 1915(b)(1). 19 II. 20 Initial Screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) The Court is obligated by the Prison Litigation Reform Act (“PLRA”) to review 21 complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are 22 “incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated 23 delinquent for, violations of criminal law or the terms or conditions of parole, probation, 24 pretrial release, or diversionary program,” at the time of filing “as soon as practicable 25 after docketing.” See Doc. No. 8 at 4; 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under the 26 PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are 27 frivolous, malicious, fail to state a claim, or which seek damages from defendants who 28 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 3 3:18-cv-01846-LAB-RBB 1 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 2 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 3 A. 4 “The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious Standard of Review 5 suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 6 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 7 (7th Cir. 2012)). “The standard for determining whether a plaintiff has failed to state a 8 claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 9 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. 10 Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); accord Wilhelm v. Rotman, 680 F.3d 1113, 11 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the 12 familiar standard applied in the context of failure to state a claim under Federal Rule of 13 Civil Procedure 12(b)(6)”). 14 Every complaint must contain “a short and plain statement of the claim showing 15 that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations 16 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 17 by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there are well-pleaded 19 factual allegations, a court should assume their veracity, and then determine whether they 20 plausibly give rise to an entitlement to relief.” Id. at 679. “Determining whether a 21 complaint states a plausible claim for relief [is] . . . a context-specific task that requires 22 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere 23 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 24 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 25 /// 26 /// 27 /// 28 /// 4 3:18-cv-01846-LAB-RBB 1 While a plaintiff’s factual allegations are taken as true, courts “are not required to 2 indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th 3 Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an 4 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the 5 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 6 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 7 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially 8 pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 9 1982). Even before Iqbal, “[v]ague and conclusory allegations of official participation in 10 civil rights violations” were not “sufficient to withstand a motion to dismiss.” Id. 11 B. 12 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, 42 U.S.C. § 1983 13 privileges, or immunities secured by the Constitution and laws” of the United States. 14 Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must 15 allege two essential elements: (1) that a right secured by the Constitution or laws of the 16 United States was violated, and (2) that the alleged violation was committed by a person 17 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of 18 Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 19 Here, the Court finds that, as currently pleaded, Plaintiff’s Complaint alleges facts 20 sufficient to state plausible First Amendment claims. See Witherow v. Paff, 52 F.3d 264, 21 265 (9th Cir. 1995); Hayes v. Idaho Correctional Center, 849 F.3d 1204, 1211-1212 (9th 22 Cir. 2017) (finding prisoner who alleged to have had his “properly marked legal mail” 23 “arbitrarily and capriciously opened outside his presence on two separate occasions” 24 stated a plausible First Amendment claim); cf. Mangiaracina v. Penzone, 849 F.3d 1191, 25 1196 (9th Cir. 2017) (“[P]risoners have a Sixth Amendment right to be present when 26 legal mail related to a criminal matter is inspected.”); see also Silva v. Di Vittorio, 658 27 F.3d 1090, 1102-03 (9th Cir. 2011) (discussing requirements for an access-to-court claim 28 premised on prison officials’ alleged interference, as opposed to failure to affirmatively 5 3:18-cv-01846-LAB-RBB 1 assist, with any prisoner lawsuit), overruled on other grounds as stated by Richey v. 2 Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). 3 However, the Court further finds that the entire action requires sua sponte 4 dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) to the extent it 5 only seeks relief under § 1983 against the San Diego Sheriff’s Department. The San 6 Diego Sheriff’s Department, unlike the County of San Diego itself, is not subject to suit 7 under § 1983. See Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 8 1996) (“Naming a municipal department as a defendant is not an appropriate means of 9 pleading a § 1983 action against a municipality.”); Powell v. Cook County Jail, 814 F. 10 Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes liability on any ‘person’ who 11 violates someone’s constitutional rights ‘under color of law.’ Cook County Jail is not a 12 ‘person.’)). Therefore, while the County of San Diego may be considered a “person” 13 subject to suit under § 1983, see Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th 14 Cir. 2006) (citing Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690 (1978)), its Sheriff’s 15 Department may not. 16 C. 17 A pro se litigant must be given leave to amend his pleading to state a claim unless Leave to Amend 18 it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d 19 at 1130 (noting leave to amend should be granted when a complaint is dismissed under 20 28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can correct the defect”). 21 Therefore, the Court will grant him a chance to fix the pleading deficiencies discussed in 22 this Order. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. 23 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 24 /// 25 /// 26 /// 27 /// 28 /// 6 3:18-cv-01846-LAB-RBB 1 III. Conclusion and Order 2 For all the reasons discussed, the Court: 3 1. 4 5 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 6 Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly 7 payments from his account in an amount equal to twenty percent (20%) of the preceding 8 month’s income and forwarding those payments to the Clerk of the Court each time the 9 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 10 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 11 ASSIGNED TO THIS ACTION. 12 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 13 Commander, George F. Bailey Detention Facility, 446 Alta Road, #5300, San Diego, 14 California 92158. 15 16 17 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which § 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). 5. GRANTS Plaintiff forty-five (45) days leave to file a First Amended 18 Complaint which cures all the deficiencies of pleading described in this Order. Plaintiff is 19 cautioned, however, that should he choose to file a First Amended Complaint, it must be 20 complete by itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim 21 not re-alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, 22 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 23 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 24 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 25 amended pleading may be “considered waived if not repled.”). 26 If Plaintiff fails to follow these instructions and/or files a First Amended 27 Complaint that still fails to state a claim, his case may be dismissed without further leave 28 to amend. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 7 3:18-cv-01846-LAB-RBB 1 not take advantage of the opportunity to fix his complaint, a district court may convert the 2 dismissal of the complaint into dismissal of the entire action.”). 3 4 5 6. The Clerk of Court is directed to mail Plaintiff a court approved form civil rights complaint for his use in amending. IT IS SO ORDERED. 6 7 8 9 10 Dated: August 27, 2018 HON. LARRY ALAN BURNS United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 3:18-cv-01846-LAB-RBB
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