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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SHAVYAH LATEZE BELL,
Booking # 16171985,

ORDER:

Plaintiff,

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vs.

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Case No.: 3:16-cv-02974-BTM-MDD

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[Doc. No. 2]; AND

SDPD,
Defendants.

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2) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND § 1915A(b)

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Plaintiff, Shavyah Lateze Bell, appears to be a pretrial detainee at George Bailey

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Detention Facility (“GBDF”). He has filed a complaint pursuant to 42 U.S.C. § 1983, and

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requests leave to proceed in forma pauperis (“IFP”) (Doc. No. 2). Because Plaintiff’s

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Motion to Proceed IFP complies with 28 U.S.C. § 1915(a)(2), the Court grants him leave

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to proceed without full prepayment of the civil filing fees required by 28 U.S.C. §

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1914(a), but dismisses his Complaint for failing to state a claim pursuant to 28 U.S.C. §

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1915(e)(2) and § 1915A(b).

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3:16-cv-02974-BTM-MDD

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A.

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Plaintiff’s IFP Motion
All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

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Bruce v. Samuels, __ S. Ct. __, 136 S. Ct. 627, 629 (U.S. 2016); Williams v. Paramo,

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775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately

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dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th

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Cir. 2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

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“certified copy of the trust fund account statement (or institutional equivalent) for . . . the

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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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trust account statement, the Court assesses an initial payment of 20% of (a) the average

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monthly deposits in the account for the past six months, or (b) the average monthly

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balance in the account for the past six months, whichever is greater, unless the prisoner

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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

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custody of the prisoner then collects subsequent payments, assessed at 20% of the

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preceding month’s income, in any month in which his account exceeds $10, and forwards

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those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);

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Bruce, 136 S. Ct. at 629.

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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.
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3:16-cv-02974-BTM-MDD

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In support of his IFP motion, Plaintiff has submitted a prison certificate which has

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been completed by an administrative lieutenant with the San Diego County Sheriff’s

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Department. See Doc. No. 2 at 4; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2;

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Andrews, 398 F.3d at 1119. This statement shows that Plaintiff’s current available

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balance in his trust account is zero, and it appears Plaintiff is unable to pay any initial fee

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at this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be

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prohibited from bringing a civil action or appealing a civil action or criminal judgment

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for the reason that the prisoner has no assets and no means by which to pay [a] initial

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partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28

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U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case

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based solely on a “failure to pay . . . due to the lack of funds available to him when

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payment is ordered.”).
Therefore, the Court grants Plaintiff leave to proceed IFP, declines to “exact” any

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initial filing fee because his trust account statement shows he “has no means to pay it,”

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Bruce, 136 S. Ct. at 629, and directs the Watch Commander at GBDF to collect the entire

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$350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the

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Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C.

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§ 1915(b)(1). See id.

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B.

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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-

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answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

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statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

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it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

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who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

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2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

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the targets of frivolous or malicious suits need not bear the expense of responding.’”
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3:16-cv-02974-BTM-MDD

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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

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Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

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relief [is] ... a context-specific task that requires the reviewing court to draw on its

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judicial experience and common sense.” Id. The “mere possibility of misconduct” or

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009).

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C.

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42 U.S.C. § 1983
Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws” of the United States.

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Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must

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allege two essential elements: (1) that a right secured by the Constitution or laws of the

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United States was violated, and (2) that the alleged violation was committed by a person

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acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of

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Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

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3:16-cv-02974-BTM-MDD

Plaintiff’s Allegations

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Plaintiff’s complaint does not contain clear or specific factual allegations. He

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only alleges that unnamed police officers with the San Diego Police Department

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(“SDPD”) used “misconduct” during his arrest in violation of his civil rights. (Compl. at

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2-3.) Plaintiff seeks a “sentence modification,” as well as compensatory and punitive

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damages. (Id. at 5.)

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2.

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To the extent that Plaintiff seeks a “sentence modification,” and it is not at all clear

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Abstention

whether Plaintiff has been convicted and issued a sentence, Federal courts may not

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interfere with ongoing state criminal proceedings absent extraordinary circumstances.

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Younger v. Harris, 401 U.S. 37, 45-46 (1971). Absent extraordinary circumstances,

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abstention under Younger is required when: (1) state judicial proceedings are ongoing;

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(2) the state proceedings involve important state interests; and (3) the state proceedings

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afford an adequate opportunity to raise the federal issue. Columbia Basin Apartment

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Ass’n v. City of Pasco, 268 F.3d 791, 799 (9th Cir. 2001).

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There is no question Plaintiff’s criminal proceedings involve important state

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interests. In addition, Plaintiff’s appear to be the type of claims the state courts afford an

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adequate opportunity to raise on direct appeal. Because Plaintiff’s criminal proceedings

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appear to be ongoing, the injunctive relief he seeks is unavailable.

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3.

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Moreover, this Court may not grant Plaintiff a “sentence modification” pursuant to

Preiser

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the Civil Right Act, 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 489

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(1973) (holding that a writ of habeas corpus is “explicitly and historically designed” to

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provide a state prisoner with the “exclusive” means to collaterally “attack the validity of

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his confinement” in federal court). “Suits challenging the validity of the prisoner’s

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continued incarceration lie within ‘the heart of habeas corpus,’ whereas ‘a § 1983 action

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is a proper remedy for a state prisoner who is making a constitutional challenge to the

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conditions of his prison life, but not to the fact or length of his custody.’” Ramirez v.
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3:16-cv-02974-BTM-MDD

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Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (quoting Preiser, 411 U.S. at 498-99).

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Plaintiff’s Complaint contains virtually no factual allegations as to whom he claims

Individual Liability and Causation

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violated his constitutional rights and contains no “further factual enhancement” which

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describes how, or to what extent, any individual became aware of, or were actually aware

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of, alleged constitutional violations. “Because vicarious liability is inapplicable to . . .

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§1983 suits, a plaintiff must plead that each government-official defendant, through the

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official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676;

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see also Jones v. Community Redevelopment Agency of City of Los Angeles, 733 F.2d

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646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least some degree of

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particularity overt acts which defendants engaged in” in order to state a claim).

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“Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks

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v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into causation must

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be individualized and focus on the duties and responsibilities of each individual

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defendant whose acts or omissions are alleged to have caused a constitutional

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deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode,

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423 U.S. 362, 370-71 (1976).

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Plaintiff must identify specific individuals whom he claims violated his

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constitutional rights. He must also provide specific factual allegations as to each claim.

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Currently, because his Complaint lacks any specifics, his claims are insufficient to state a

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section 1983 claim. Iqbal, 662 U.S. at 678 (noting that Fed.R.Civ.P. 8 “demands more

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than an unadorned, the-defendant-unlawfully-harmed-me accusation,” and that “[t]o

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survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

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as true, to ‘state a claim for relief that is plausible on its face.’”), quoting Twombly, 550

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U.S. at 555, 570).

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3:16-cv-02974-BTM-MDD

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5.

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A pro se litigant must be given leave to amend his or her complaint to state a claim

Leave to Amend

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unless it is absolutely clear the deficiencies of the complaint cannot be cured by

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amendment. See Lopez, 203 F.3d at 1130 (noting leave to amend should be granted when

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a complaint is dismissed under 28 U.S.C. § 1915(e) “if it appears at all possible that the

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plaintiff can correct the defect”). While the Court finds Plaintiff’s complaint fails to state

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any claim upon which relief can be granted, it will provide him a chance to fix the

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pleading deficiencies discussed in this Order.

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Conclusion

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Good cause appearing, the Court:

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1.

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(Doc. No. 2).

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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

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from Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing

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monthly payments from his account in an amount equal to twenty percent (20%) of the

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preceding month’s income and forwarding those payments to the Clerk of the Court each

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time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

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PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

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ASSIGNED TO THIS ACTION.

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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.
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DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

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relief may be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and GRANTS

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him forty-five (45) days leave from the date of this Order in which to file an Amended

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Complaint which cures all the deficiencies of pleading noted. Plaintiff’s Amended

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Complaint must be complete in itself without reference to his original pleading.

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Defendants not named and any claims not re-alleged in the Amended Complaint will be

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considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
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3:16-cv-02974-BTM-MDD

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& Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes

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the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that

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claims dismissed with leave to amend which are not re-alleged in an amended pleading

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may be “considered waived if not repled.”).

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DIRECTS the Clerk of Court to mail to Plaintiff, together with this Order, a

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blank copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C.

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§ 1983” for his use in amending.

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Dated: December 19, 2016
Hon. Barry Ted Moskowitz, Chief Judge
United States District Court

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3:16-cv-02974-BTM-MDD