Bell v. SDPD

Filing 3

ORDER:1) Granting Motion to Proceed In Forma Pauperis (Doc. No. 2 ); and (2) Dismissing Complaint for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). The Watch Commander for GPDF, or their 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 paymen ts to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). The Court Dismisses Plaintiff's Complaint for failing to state a claim and Grants him forty-five (45) days leave from the date of this Order in which to file an Amended Complaint. Signed by Judge Barry Ted Moskowitz on 12/19/2016. (All non-registered users served via U.S. Mail Service including Watch Commander, GBDF)(Form served as directed.)(rlu)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 SHAVYAH LATEZE BELL, Booking # 16171985, ORDER: Plaintiff, 13 vs. 14 15 Case No.: 3:16-cv-02974-BTM-MDD 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [Doc. No. 2]; AND SDPD, Defendants. 16 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 Plaintiff, Shavyah Lateze Bell, appears to be a pretrial detainee at George Bailey 21 Detention Facility (“GBDF”). He has filed a complaint pursuant to 42 U.S.C. § 1983, and 22 requests leave to proceed in forma pauperis (“IFP”) (Doc. No. 2). Because Plaintiff’s 23 Motion to Proceed IFP complies with 28 U.S.C. § 1915(a)(2), the Court grants him leave 24 to proceed without full prepayment of the civil filing fees required by 28 U.S.C. § 25 1914(a), but dismisses his Complaint for failing to state a claim pursuant to 28 U.S.C. § 26 1915(e)(2) and § 1915A(b). 27 /// 28 /// 1 3:16-cv-02974-BTM-MDD 1 A. 2 Plaintiff’s IFP Motion 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, __ S. Ct. __, 136 S. Ct. 627, 629 (U.S. 2016); Williams v. Paramo, 10 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately 11 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 12 Cir. 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 Bruce, 136 S. Ct. at 629. 25 26 1 27 28 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-02974-BTM-MDD 1 In support of his IFP motion, Plaintiff has submitted a prison certificate which has 2 been completed by an administrative lieutenant with the San Diego County Sheriff’s 3 Department. See Doc. No. 2 at 4; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; 4 Andrews, 398 F.3d at 1119. This statement shows that Plaintiff’s current available 5 balance in his trust account is zero, and it appears Plaintiff is unable to pay any initial fee 6 at this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 7 prohibited from bringing a civil action or appealing a civil action or criminal judgment 8 for the reason that the prisoner has no assets and no means by which to pay [a] initial 9 partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 10 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case 11 based solely on a “failure to pay . . . due to the lack of funds available to him when 12 payment is ordered.”). Therefore, the Court grants Plaintiff leave to proceed IFP, declines to “exact” any 13 14 initial filing fee because his trust account statement shows he “has no means to pay it,” 15 Bruce, 136 S. Ct. at 629, and directs the Watch Commander at GBDF to collect the entire 16 $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the 17 Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 18 § 1915(b)(1). See id. 19 B. 20 21 Legal Standards for Screening Complaint Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre- 22 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 23 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 24 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 25 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 26 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 27 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 28 the targets of frivolous or malicious suits need not bear the expense of responding.’” 3 3:16-cv-02974-BTM-MDD 1 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 2 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 3 “The standard for determining whether a plaintiff has failed to state a claim upon 4 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 5 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 6 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 7 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 8 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 9 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 10 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 11 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 12 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 13 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 14 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 15 relief [is] ... a context-specific task that requires the reviewing court to draw on its 16 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 17 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 18 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 19 (9th Cir. 2009). 20 C. 21 42 U.S.C. § 1983 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, 22 privileges, or immunities secured by the Constitution and laws” of the United States. 23 Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must 24 allege two essential elements: (1) that a right secured by the Constitution or laws of the 25 United States was violated, and (2) that the alleged violation was committed by a person 26 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of 27 Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 28 4 3:16-cv-02974-BTM-MDD Plaintiff’s Allegations 1 1. 2 Plaintiff’s complaint does not contain clear or specific factual allegations. He 3 only alleges that unnamed police officers with the San Diego Police Department 4 (“SDPD”) used “misconduct” during his arrest in violation of his civil rights. (Compl. at 5 2-3.) Plaintiff seeks a “sentence modification,” as well as compensatory and punitive 6 damages. (Id. at 5.) 7 2. 8 To the extent that Plaintiff seeks a “sentence modification,” and it is not at all clear 9 Abstention whether Plaintiff has been convicted and issued a sentence, Federal courts may not 10 interfere with ongoing state criminal proceedings absent extraordinary circumstances. 11 Younger v. Harris, 401 U.S. 37, 45-46 (1971). Absent extraordinary circumstances, 12 abstention under Younger is required when: (1) state judicial proceedings are ongoing; 13 (2) the state proceedings involve important state interests; and (3) the state proceedings 14 afford an adequate opportunity to raise the federal issue. Columbia Basin Apartment 15 Ass’n v. City of Pasco, 268 F.3d 791, 799 (9th Cir. 2001). 16 There is no question Plaintiff’s criminal proceedings involve important state 17 interests. In addition, Plaintiff’s appear to be the type of claims the state courts afford an 18 adequate opportunity to raise on direct appeal. Because Plaintiff’s criminal proceedings 19 appear to be ongoing, the injunctive relief he seeks is unavailable. 20 3. 21 Moreover, this Court may not grant Plaintiff a “sentence modification” pursuant to Preiser 22 the Civil Right Act, 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 489 23 (1973) (holding that a writ of habeas corpus is “explicitly and historically designed” to 24 provide a state prisoner with the “exclusive” means to collaterally “attack the validity of 25 his confinement” in federal court). “Suits challenging the validity of the prisoner’s 26 continued incarceration lie within ‘the heart of habeas corpus,’ whereas ‘a § 1983 action 27 is a proper remedy for a state prisoner who is making a constitutional challenge to the 28 conditions of his prison life, but not to the fact or length of his custody.’” Ramirez v. 5 3:16-cv-02974-BTM-MDD 1 Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (quoting Preiser, 411 U.S. at 498-99). 2 4. 3 Plaintiff’s Complaint contains virtually no factual allegations as to whom he claims Individual Liability and Causation 4 violated his constitutional rights and contains no “further factual enhancement” which 5 describes how, or to what extent, any individual became aware of, or were actually aware 6 of, alleged constitutional violations. “Because vicarious liability is inapplicable to . . . 7 §1983 suits, a plaintiff must plead that each government-official defendant, through the 8 official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; 9 see also Jones v. Community Redevelopment Agency of City of Los Angeles, 733 F.2d 10 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least some degree of 11 particularity overt acts which defendants engaged in” in order to state a claim). 12 “Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks 13 v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into causation must 14 be individualized and focus on the duties and responsibilities of each individual 15 defendant whose acts or omissions are alleged to have caused a constitutional 16 deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode, 17 423 U.S. 362, 370-71 (1976). 18 Plaintiff must identify specific individuals whom he claims violated his 19 constitutional rights. He must also provide specific factual allegations as to each claim. 20 Currently, because his Complaint lacks any specifics, his claims are insufficient to state a 21 section 1983 claim. Iqbal, 662 U.S. at 678 (noting that Fed.R.Civ.P. 8 “demands more 22 than an unadorned, the-defendant-unlawfully-harmed-me accusation,” and that “[t]o 23 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 24 as true, to ‘state a claim for relief that is plausible on its face.’”), quoting Twombly, 550 25 U.S. at 555, 570). 26 /// 27 /// 28 /// 6 3:16-cv-02974-BTM-MDD 1 5. 2 A pro se litigant must be given leave to amend his or her complaint to state a claim Leave to Amend 3 unless it is absolutely clear the deficiencies of the complaint cannot be cured by 4 amendment. See Lopez, 203 F.3d at 1130 (noting leave to amend should be granted when 5 a complaint is dismissed under 28 U.S.C. § 1915(e) “if it appears at all possible that the 6 plaintiff can correct the defect”). While the Court finds Plaintiff’s complaint fails to state 7 any claim upon which relief can be granted, it will provide him a chance to fix the 8 pleading deficiencies discussed in this Order. 9 Conclusion 10 Good cause appearing, the Court: 11 1. 12 (Doc. No. 2). 13 2. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) DIRECTS the Watch Commander for GPDF, or their designee, to collect 14 from Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 15 monthly payments from his account in an amount equal to twenty percent (20%) of the 16 preceding month’s income and forwarding those payments to the Clerk of the Court each 17 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 18 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 19 ASSIGNED TO THIS ACTION. 20 21 22 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch Commander, GBDF, 446 Alta Road, San Diego, California 92158. 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 23 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and GRANTS 24 him forty-five (45) days leave from the date of this Order in which to file an Amended 25 Complaint which cures all the deficiencies of pleading noted. Plaintiff’s Amended 26 Complaint must be complete in itself without reference to his original pleading. 27 Defendants not named and any claims not re-alleged in the Amended Complaint will be 28 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 7 3:16-cv-02974-BTM-MDD 1 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes 2 the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that 3 claims dismissed with leave to amend which are not re-alleged in an amended pleading 4 may be “considered waived if not repled.”). 5 5. DIRECTS the Clerk of Court to mail to Plaintiff, together with this Order, a 6 blank copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C. 7 § 1983” for his use in amending. 8 9 10 11 Dated: December 19, 2016 Hon. Barry Ted Moskowitz, Chief Judge United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 3:16-cv-02974-BTM-MDD

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