Prado v. Dumanis et al

Filing 20

ORDER: (1) Granting Motion to Proceed in Forma Pauperis; (2) Denying Motion for Preliminary Injunction; and (3) Dismissing Civil Action for Failure to State a Claim without Leave to Amend as Futile. Watch Commander of GBDF, or his designee, is direct ed to collect from Plaintiff's trust account the $350 filing fee owed in this case by garnishing monthly payments from his account in an amount equal to twenty percent (20%) of the preceding month's income and forwarding those pay ments to the Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). Signed by Judge Roger T. Benitez on 12/19/2016.(cc: Watch Commander)(All non-registered users served via U.S. Mail Service)(knb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JOSEPH A. PRADO, Booking #16113441, ORDER: Plaintiff, 13 14 Case No.: 3:16-cv-2309-BEN-KSC vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2] 15 16 17 BONNIE DUMANIS, et al., 2) DENYING MOTION FOR PRELIMINARY INJUNCTION [ECF No. 4] Defendants. 18 19 AND 20 3) DISMISSING CIVIL ACTION FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) 21 22 23 24 Joseph A. Prado (“Plaintiff”), currently incarcerated at the George Bailey 25 Detention Facility (“GBDF”) in San Diego, California, and proceeding pro se, has filed a 26 civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has also filed a 27 Motion for Preliminary Injunctive Relief (ECF No. 4), as well as Motion to Proceed In 28 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 1 3:16-cv-2309-BEN-KSC 1 I. Motion to Proceed IFP 2 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); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 9 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 10 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 11 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 12 2002). 13 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 14 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 15 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 16 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 17 trust account statement, the Court assesses an initial payment of 20% of (a) the average 18 monthly deposits in the account for the past six months, or (b) the average monthly 19 balance in the account for the past six months, whichever is greater, unless the prisoner 20 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 21 custody of the prisoner then collects subsequent payments, assessed at 20% of the 22 preceding month’s income, in any month in which his account exceeds $10, and forwards 23 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 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. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:16-cv-2309-BEN-KSC 1 Bruce, 136 S. Ct. at 629. 2 In support of his IFP Motion, Plaintiff has submitted a prison certificate authorized 3 by a GBDF administrative lieutenant attesting to his trust account activity. See ECF No. 2 4 at 4; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These 5 statements show Plaintiff has had no monthly deposits to his account, has carried no 6 balance over the six month period preceding the filing of his Complaint, and that his 7 current available balance is zero. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no 8 event shall a prisoner be prohibited from bringing a civil action or appealing a civil action 9 or criminal judgment for the reason that the prisoner has no assets and no means by 10 which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 11 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of 12 a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 13 available to him when payment is ordered.”). Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), 14 15 declines to “exact” any initial filing fee because his trust account statement shows he “has 16 no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Watch Commander at 17 GBDF to instead collect the entire $350 balance of the filing fees required by 28 U.S.C. 18 § 1914 and forward them to the Clerk of the Court pursuant to the installment payment 19 provisions set forth in 28 U.S.C. § 1915(b)(1). 20 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 21 A. 22 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- Standard of Review 23 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 24 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 25 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 26 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 27 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 28 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 3 3:16-cv-2309-BEN-KSC 1 the targets of frivolous or malicious suits need not bear the expense of responding.’” 2 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 3 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 4 “The standard for determining whether a plaintiff has failed to state a claim upon 5 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 6 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 7 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 8 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 9 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 10 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 11 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 13 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 14 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 15 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 16 relief [is] ... a context-specific task that requires the reviewing court to draw on its 17 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 18 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 19 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 20 (9th Cir. 2009). 21 B. 22 Plaintiff’s Complaint names San Diego District Attorney Bonnie Dumanis, San 23 Diego County Sheriff William Gore, San Diego Police Chief Shelly Zimmerman, U.S. 24 District Court Judge Huff, U.S. Magistrate Judge Gallo, and San Diego Superior Court 25 Judges Groch and Danielson as Defendants. (ECF No. 1 at 1-2.) He then claims his Fifth 26 Amendment right to “due process” was violated when he was falsely arrested by a “man 27 … name[d] Price” who “notoriously entered the Hall of Justice” claimed to be his 28 assigned probation officer, and then “managed to place a warrant out for [his] arrest.” (Id. Plaintiff’s Allegations 4 3:16-cv-2309-BEN-KSC 1 at 2-4.) Plaintiff also references a false affidavit, perjured testimony, and an internal 2 affairs complaint filed on March 9, 2016. (Id. at 5, 7.) He seeks $350,000 in general and 3 $700,000 in punitive damages. (Id. at 7.) 4 Plaintiff has also filed multiple supplemental documents comprised of San Diego 5 Sheriff’s Department Complaint Forms and on Inmate Stationary requesting various 6 forms of relief including a “private settlement,” (ECF No. 7), copies of all “grievances 7 and incident reports at SDCJ (San Diego County Jail)” (ECF No. 9), a request to hold 8 Judges Huff, Gallo, and Bencivengo “in contempt” for failing to grant him relief in two 9 other civil actions he filed in this Court (ECF No. 11),2 and three documents addressed to 10 the Clerk and U.S. Attorney Laura Duffy requesting that they “press charges” against 11 GBDF and SDCJ personnel based on his treatment in, and transfers between, both 12 facilities (ECF Nos. 13, 17, 19). 13 C. 14 “Section 1983 creates a private right of action against individuals who, acting 42 U.S.C. § 1983 15 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 16 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 17 substantive rights, but merely provides a method for vindicating federal rights elsewhere 18 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 19 20 21 22 23 24 25 26 27 28 2 Indeed, Plaintiff has filed several actions in the Southern District of California over the course of the last year. Two were petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254: Prado v. Williams, et al., S.D. Cal. Civil Case No. 3:16-cv-2203-CAB-BGS and Prado v. GBDF, et al., S.D. Cal. Civil Case No. 3:16-cv-2414-JAH-BGS. Both of those petitions have been dismissed. Three others, in addition to this case, were filed pursuant to 42 U.S.C. § 1983: Prado v. Gore, et al., S.D. Cal. Civil Case No. 3:16-cv-1436-GPCWVG; Prado v. Staff at GBDF, et al., S.D. Cal. Civil Case No. 3:16-cv-2269-AJB-MDD; and Prado v. Gallo, et al., S.D. Cal. Civil Case No. 3:16-cv-2638-BAS-BLM. Both Prado v. Gore, 3:16-cv-1436-GPC-WVG (originally assigned to Judge Huff), and Prado v. Staff at GBDF, 3:16-cv-2269-AJB-MDD, have also been dismissed. Only this case, Prado v. Dumanis, et al., 3:16-cv-2309-BEN-KSC, and Prado v. Gallo, et al., 3:16-cv-2638-BASBLM, remain open. 5 3:16-cv-2309-BEN-KSC 1 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 2 deprivation of a right secured by the Constitution and laws of the United States, and (2) 3 that the deprivation was committed by a person acting under color of state law.” Tsao v. 4 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). Criminal Proceedings – Law Enforcement Defendants 5 D. 6 First, to the extent Plaintiff seeks damages against law enforcement officials 7 Dumanis, Zimmerman, and Gore, and claims they falsely arrested and prosecuted him for 8 “sales” pursuant to Cal. Penal Code § 11352, in San Diego Superior Court Case No. 9 SCD255529, and in violation of his Fifth Amendment right to “due process” (ECF No. 1 10 at 3-4), he may not pursue those claims in a civil rights action pursuant to 42 U.S.C. 11 § 1983, without first showing those convictions have already been invalidated. See Heck 12 v. Humphry, 512 U.S. 477, 486-87 (1994). 13 14 15 16 17 18 19 20 21 22 23 In Heck, the Supreme Court held: 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, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Id. at 486-87. “Suits challenging the validity of the prisoner’s continued incarceration lie within 24 ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state 25 prisoner who is making a constitutional challenge to the conditions of his prison life, but 26 not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 27 2003), quoting Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973) (holding that a writ of 28 habeas corpus is “explicitly and historically designed” to provide a state prisoner with the 6 3:16-cv-2309-BEN-KSC 1 2 “exclusive” means to “attack the validity of his confinement” in federal court). Because Plaintiff seeks damages based on an arrest and conviction he alleges was 3 “false” and based on perjured testimony (ECF No. 1 at 4-5), his claims amount to an 4 attack on the validity of his underlying criminal conviction, and may not proceed 5 pursuant to § 1983, unless his conviction has already been invalidated. Heck, 512 U.S. at 6 486-87; Ramirez, 334 F.3d at 855-56 (“Absent such a showing, ‘[e]ven a prisoner who 7 has fully exhausted available state remedies has no cause of action under § 1983.’”), 8 quoting Heck, 512 U.S. at 489. While Plaintiff identifies no specific acts of misconduct 9 taken by the District Attorney, County Sheriff, or Chief of Police individually during the 10 course of his criminal proceedings, except to point to the filing of “false affidavits” and 11 “perjury,” (ECF No. 5), see Iqbal, 556 U.S. at 677 (noting that “[a]bsent vicarious 12 liability, each Government official, his or her title notwithstanding, is only liable for his 13 or her own misconduct”), the Court will presume he intends to sue these law enforcement 14 officials for acting together to wrongfully convict him in violation of “due process.” 15 (ECF No. 1 at 3). 16 However, such claims “necessarily imply the invalidity” of his conviction and 17 continued incarceration. Heck, 512 U.S. at 487. In other words, were Plaintiff to succeed 18 in showing that Defendants Dumanis, Zimmerman, and Gore conspired to wrongfully 19 convict him based on false evidence or perjured testimony, an award of damages would 20 “necessarily imply the invalidity” of his conviction and/or sentence. Id., 512 U.S. at 487; 21 see also Guerrero v. Gates, 442 F.3d 697, 701 (9th Cir. 2006) (finding § 1983 action 22 stemming from allegations of wrongful arrest, malicious prosecution, and a general 23 conspiracy of “bad behavior” among officials in connection with the plaintiff’s arrest, 24 prosecution, and incarceration were barred by Heck). His conviction has not been 25 invalidated, and therefore this lawsuit is not the proper subject for a § 1983 action. 26 E. 27 Second, to the extent Plaintiff seeks damages against Judges Huff, Gallo, 28 Judicial and Prosecutorial Immunity Danielson, and Groch for either presiding over his criminal proceedings or denying him 7 3:16-cv-2309-BEN-KSC 1 relief in his federal civil actions, his claims are legally frivolous, for “[j]udges are 2 absolutely immune from damage liability for acts performed in their official capacities.” 3 Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). As a prosecutor, Bonnie 4 Dumanis is likewise entitled to absolute prosecutorial immunity. Id. at 1076 (“Where a 5 prosecutor acts as an advocate ‘in initiating a prosecution and in presenting the state’s 6 case,’ absolute immunity applies.” (quoting Imbler v. Pachtman, 424 U.S. 409, 431 7 (1976))); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 912 (9th Cir. 2012) 8 (“Prosecutors performing their official prosecutorial functions are entitled to absolute 9 immunity against constitutional torts.”). Thus, for all these reasons, the Court finds Plaintiff’s Complaint fails to state a 10 11 claim upon which § 1983 relief may be granted, and that it therefore must be 12 DISMISSED pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 13 1126-27; Wilhelm, 680 F.3d at 1121. 14 III. Motion for Preliminary Injunction 15 Finally, Plaintiff has filed a Motion requesting “Emergency” Preliminary 16 Injunctive Relief (ECF No. 4). The basis for Plaintiff’s Motion is far from clear, but he 17 again refers to “testimony for perjury” and the fact that a “[]new charge [had or has] been 18 filed against [him] by Bonnie Dumanis & [the] DA’s office.” (ECF No. 4 at 1, 6). 19 Rule 65 of the Federal Rules of Civil Procedure provides that “[t]he court may 20 issue a preliminary injunction only on notice to the adverse party.” FED. R. CIV. P. 21 65(a)(1). Plaintiff’s Motion for injunctive relief does not comply with Rule 65(a)’s 22 important procedural notice requirement because he has not shown that either his 23 Complaint or his Motion have been served on any named Defendant. 24 Moreover, even if Plaintiff had properly served Defendants with notice of his 25 Motion, it wholly lacks merit. “A preliminary injunction is an extraordinary remedy 26 never awarded as of right.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 27 7, 24 (2008) (citation omitted). “The proper legal standard for preliminary injunctive 28 relief requires a party to demonstrate ‘that he is likely to succeed on the merits, that he is 8 3:16-cv-2309-BEN-KSC 1 likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 2 equities tips in his favor, and that an injunction is in the public interest.’” Stormans, Inc. 3 v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20). 4 As set forth in detail above, the Court has found that Plaintiff’s Complaint fails to 5 state a claim upon which relief can be granted and has dismissed his pleading sua sponte 6 in its entirety pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Therefore, Plaintiff has 7 necessarily failed to show, for purposes of justifying preliminary injunctive relief, any 8 likelihood of success on the merits of his claims. Id.; see also Asberry v. Beard, Civil 9 Case No. 3:13-cv-2573-WQH JLB, 2014 WL 3943459, at *9 (S.D. Cal. Aug. 12, 2014) 10 (denying prisoner’s motion for preliminary injunction because his complaint was subject 11 to dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, and therefore he had not 12 shown he was “likely to succeed on the merits” of any claim, that “the balance of equities 13 tip[ped] in his favor,” or the issuance of an injunction would serve the public interest 14 (citing Winter, 555 U.S. at 20)). Moreover, to the extent Plaintiff seeks this Court’s intervention in any ongoing 15 16 state criminal prosecution, his request is barred by Younger v. Harris, 401 U.S. 37, 43-54 17 (1971) (holding that federal courts sitting in equity cannot, absent exceptional 18 circumstances, enjoin pending state criminal proceedings). Both traditional equitable 19 principles and the structure of our federal system counsel against federal court injunctions 20 barring or interfering with state criminal proceedings. Id. at 44; see also Green v. City of 21 Tucson, 255 F.3d 1086, 1094 (9th Cir. 2001). Because it appears this is what Plaintiff 22 asks this Court to do, he is doubly unlikely to succeed on the merits. For these reasons, Plaintiff’s Motion for Injunctive Relief (ECF No. 4) must be 23 24 DENIED. 25 IV. 26 Leave to Amend Finally, while the Court would typically grant Plaintiff leave to amend in light of 27 his pro se status, it concludes that doing so under the circumstances presented by 28 Plaintiff’s pleadings would be futile. See Lopez, 203 F.3d at 1127; Schmier v. U.S. Court 9 3:16-cv-2309-BEN-KSC 1 of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing 2 “[f]utility of amendment” as a proper basis for dismissal without leave to amend). 3 Amendment is futile because even if Plaintiff could somehow allege facts to show 4 Defendants Dumanis, Zimmerman, or Gore violated his due process rights during his 5 criminal proceedings, or that Judges Huff, Gallo, Groch, and Danielson were not 6 immune, his claim for damages under § 1983 could still not yet proceed pursuant to Heck 7 because his attempts at invalidating his conviction, either on direct appeal, or through a 8 writ of habeas corpus, have to date been unavailing. 9 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 10 No. 3:05-cv-00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 11 United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner 12 Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take notice of 13 proceedings in other courts, both within and without the federal judicial system, if those 14 proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 15 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 16 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, 17 Inc., 971 F.2d 244, 248 (9th Cir. 1992). 18 The Court takes judicial notice of its own records in both Prado v. Williams, et al., 19 S.D. Cal. Civil Case No. 3:16-cv-2203-CAB-BGS and Prado v. GBDF, et al., S.D. Cal. 20 Civil Case No. 3:16-cv-2414-JAH-BGS, in which Plaintiff filed writs of habeas corpus 21 seeking to challenge his state court conviction in San Diego Superior Court Case No. 22 SCD 255529 pursuant to 28 U.S.C. § 2254. Both those petitions have been dismissed. 23 The Court also takes judicial notice of docket proceeding before the California Court of 24 Appeals, District 4, Div.1, in People v. Prado, D070605, in which Plaintiff appears to 25 have filed a direct appeal in San Diego Superior Court Case No. SCD255529. This appeal 26 was dismissed as premature on July 11, 2016; however, and a remittur issued on Sept. 13, 27 2016. See search/ case/dockets .cfm?dist 28 =41&doc_id=2148422&doc_no= D070605 (last visited Dec. 9, 2016). 10 3:16-cv-2309-BEN-KSC 1 Therefore, because all these proceedings reveal Plaintiff cannot amend his pleading 2 to allege the additional facts required to show either that the underlying conviction which 3 forms the basis of his § 1983 claims has already been invalidated, or that the Defendants 4 he seeks to sue are not absolutely immune, the Court denies leave to amend as futile. See 5 Lopez, 203 F.3d at 1127; Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (noting 6 that leave to amend is not required if it is “absolutely clear that the deficiencies of the 7 complaint could not be cured by amendment.”) (internal citations omitted). 8 V. 9 10 11 12 Conclusion and Order For all the reasons explained the Court: 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 2. DIRECTS the Watch Commander of GBDF, or his designee, to collect from 13 Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly 14 payments from his account in an amount equal to twenty percent (20%) of the preceding 15 month’s income and forwarding those payments to the Clerk of the Court each time the 16 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 17 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 18 ASSIGNED TO THIS ACTION. 19 3. DIRECTS the Clerk of the Court to serve a copy of this Order on the Watch 20 Commander, George Bailey Detention Facility, 446 Alta Road, Ste. 5300, San Diego, 21 California, 92158. 22 4. DENIES Plaintiff’s Motion for Preliminary Injunction (ECF No. 4). 23 5. DISMISSES Plaintiff’s Complaint for failing to state a claim pursuant to 28 24 25 U.S.C. § 1915(e)(2) and § 1915A(b), without leave to amend as futile. 6. CERTIFIES that an IFP appeal from this Order would be frivolous and 26 therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See 27 Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 28 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if 11 3:16-cv-2309-BEN-KSC 1 appeal would not be frivolous); and 2 7. 3 IT IS SO ORDERED. DIRECTS the Clerk of Court to close the file. 4 5 Dated: December 19, 2016 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 3:16-cv-2309-BEN-KSC

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