Gray v. Vianzon et al

Filing 19

ORDER: 1) Granting 11 Motion to Proceed In Forma Pauperis 2) Denying 15 Motion for Appointment of Counsel and 3) Dismissing Claims for pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). The Court GRANTS Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a); DENIES Motion to Appoint Counsel (ECF No. 15.); DENIES Plaintiff's Motion for Sanctions, Motion to Add Defendants, and Motion Requesting Leave to File Amended Complaint and Motion for Leave to Proceed I FP (ECF Nos. 6, 10, 17) as moot; DISMISSES Plaintiff's claims against William Gore and Helen Robbins-Meyer for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b); DISMISSES Plaintiff's claims against Jessic a Paugh for seeking monetary damages against an immune defendant pursuant to 28 U.S.C. § 1915(e)(2) and §1915A(b); GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which to either: (1) Notify the Court of the inten tion to proceed with excessive force claims only; or (2) File an Amended Complaint which cures all the deficiencies of pleading noted. Signed by Judge Dana M. Sabraw on 3/1/2017.(Order electronically transmitted to Secretary of CDCR)(All non-registered users served via U.S. Mail Service)(Civil Rights Complaint mailed to Plaintiff)(aef) (sjt).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DARYL GRAY,
Booking #16113441,

ORDER:

Plaintiff,

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Case No.: 3:16-cv-2978-DMS-JMA

vs.

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 11]

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ARMIN VIANZON, JR.; JOSE
JIMENEZ; JUAN ANDRADE;
CRYSTAL VENTURE; WILLIAM D.
GORE; HELEN ROBBINS-MEYER;
JESSICA PAUGH,

2) DENYING MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 15]
AND

Defendants.

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3) DISMISSING CLAIMS FOR
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND § 1915A(b)

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Daryl Gray (“Plaintiff”), currently incarcerated at the San Diego Central Jail

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(“SDCJ”) in San Diego, California, and proceeding pro se, has filed a civil rights

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complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has also filed a Motion for

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Appointment of Counsel (ECF No. 15), a “Motion for Sanctions for Being Denied

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Access to Court” (ECF No. 6), a “Motion to Add Defendant(s) to Complaint” (ECF No.
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3:16-cv-2978-DMS-JMA

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10), a “Motion Requesting Leave to File Amended Complaint and Motion for Leave to

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Proceed In Forma Pauperis” (ECF No. 17), as well as a Motion to Proceed In Forma

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Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 11).

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In addition, before the Court could conduct the required sua sponte screening,

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Plaintiff filed a First Amended Complaint (“FAC”) which is now the operative pleading.

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(ECF No. 13.)

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I.

Motion to Proceed IFP

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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, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d

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1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed.

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

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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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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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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 support of his IFP Motion, Plaintiff has submitted a prison certificate authorized

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by a SDCJ administrative sergeant attesting to his trust account activity. See ECF No. 17

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at 2; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. This

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statement shows that Plaintiff’s current available balance is only $1.61. See 28 U.S.C.

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§ 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a

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civil action or appealing a civil action or criminal judgment for the reason that the

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prisoner has no assets and no means by which to pay the initial partial filing fee.”);

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Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4)

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acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a

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“failure to pay . . . due to the lack of funds available to him when payment is ordered.”).
Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 11),

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declines to “exact” any initial filing fee because his trust account statement shows he “has

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no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Watch Commander at SDCJ

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to instead collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914

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and forward them to the Clerk of the Court pursuant to the installment payment

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provisions set forth in 28 U.S.C. § 1915(b)(1).

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II.

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Motion to Appoint Counsel
Plaintiff seeks appointment of counsel to assist him in this matter. (ECF No. 15.)

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However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept. of

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Social Services, 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1), district

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courts have some limited discretion to “request” that an attorney represent an indigent

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civil litigant, Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004),

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this discretion is rarely exercised and only under “exceptional circumstances.” Id.; see

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also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional

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circumstances requires “an evaluation of the likelihood of the plaintiff’s success on the

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merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the

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complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103, quoting Wilborn

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v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
Applying these factors to Plaintiff’s case, the Court DENIES his Motion to

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Appoint Counsel because a liberal construction of his original pleadings shows he is

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capable of articulating the factual basis for his claims. All documents filed by pro se

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litigants are construed liberally, and “a pro se complaint, however inartfully pleaded,

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must be held to less stringent standards than formal pleadings drafted by lawyers.”

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Erickson v. Pardus, 551 U.S. 89, 94 (2007). Moreover, FED. R. CIV. P. 8(e) requires that

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“[p]leadings . . . be construed so as to do justice.”

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The pleadings filed by Plaintiff to date demonstrate that while Plaintiff may not be

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a trained in law, he is capable of legibly articulating the facts and circumstances relevant

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to his claims, which are typical, straightforward, and not legally “complex.” Agyeman,

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390 F.3d at 1103. Therefore, neither the interests of justice nor any exceptional

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circumstances warrant the appointment of counsel in this case at this time. LaMere v.

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Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

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III.

Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

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A.

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Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

Standard of Review

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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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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.
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3:16-cv-2978-DMS-JMA

Plaintiff’s Allegations

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B.

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On October 28, 2016, Plaintiff claims that four San Diego County Sheriff Deputies

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“pulled up to me and my girlfriend” in their patrol cars, drew their weapons and ordered

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Plaintiff and his girlfriend to get down on the ground. (FAC at 3.) Plaintiff claims they

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complied but the Deputies “jumped on my back and neck” which caused Plaintiff to

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“pass out.” (Id.) Plaintiff alleges that he “woke in the back seat of the police car in

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serious pain” but when he was taken to the County Jail he alleges that he was denied

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adequate medical care. (Id.)

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Approximately two weeks later, on November 17, 2016, Plaintiff had a preliminary

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hearing based on criminal charges brought by Deputy District Attorney Jessica Paugh.

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(See id. at 4.) Plaintiff claims he is being “maliciously prosecuted” by Defendant Paugh

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whom he claims is “racially motivated.” (Id.) Finally, Plaintiff claims that Defendants

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William Gore and Helen Robbins-Meyer are liable for “ethical misconduct” in their

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supervisory capacity. (Id. at 5.)

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Plaintiff seeks 10.5 million in compensatory damages and 5.6 million in punitive
damages, as well as injunctive relief. (Id. at 7.)

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C.

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“Section 1983 creates a private right of action against individuals who, acting

42 U.S.C. § 1983

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under color of state law, violate federal constitutional or statutory rights.” Devereaux v.

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Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks

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and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)

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deprivation of a right secured by the Constitution and laws of the United States, and (2)

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that the deprivation was committed by a person acting under color of state law.” Tsao v.

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Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

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3:16-cv-2978-DMS-JMA

Criminal Proceedings – Law Enforcement Defendants

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D.

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First, to the extent Plaintiff seeks damages against law enforcement officials and

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claims they falsely arrested and “maliciously prosecuted” him, he may not pursue those

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claims in a civil rights action pursuant to 42 U.S.C. § 1983, without first showing those

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convictions have already been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87

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(1994).

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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

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‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state

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prisoner who is making a constitutional challenge to the conditions of his prison life, but

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not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir.

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2003), quoting Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973) (holding that a writ of

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habeas corpus is “explicitly and historically designed” to provide a state prisoner with the

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“exclusive” means to “attack the validity of his confinement” in federal court).

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Because Plaintiff seeks damages based on an arrest and criminal charges he claims

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are “false,” his claims amount to an attack on the validity of his underlying criminal

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conviction, and may not proceed pursuant to § 1983, unless his conviction has already

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been invalidated. Heck, 512 U.S. at 486-87; Ramirez, 334 F.3d at 855-56 (“Absent such a

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showing, ‘[e]ven a prisoner who has fully exhausted available state remedies has no
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cause of action under § 1983.’”), quoting Heck, 512 U.S. at 489. In other words, were

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Plaintiff to succeed in showing that Defendants conspired to wrongfully convict him, an

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award of damages would “necessarily imply the invalidity” of his conviction and/or

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sentence. Heck, 512 U.S. at 487; see also Guerrero v. Gates, 442 F.3d 697, 701 (9th Cir.

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2006) (finding § 1983 action stemming from allegations of wrongful arrest, malicious

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prosecution, and a general conspiracy of “bad behavior” among officials in connection

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with the plaintiff’s arrest, prosecution, and incarceration were barred by Heck).

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E.

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Second, to the extent Plaintiff seeks damages against Deputy District Attorney

Judicial and Prosecutorial Immunity

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Paugh for prosecuting Plaintiff on criminal charges, she is entitled to absolute

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prosecutorial immunity. Ashelman v. Pope, 793 F.2d 1072, 1077 (9th Cir. 1986) (“Where

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a prosecutor acts as an advocate ‘in initiating a prosecution and in presenting the state’s

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case,’ absolute immunity applies.” (quoting Imbler v. Pachtman, 424 U.S. 409, 431

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(1976)); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 912 (9th Cir. 2012)

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(“Prosecutors performing their official prosecutorial functions are entitled to absolute

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immunity against constitutional torts.”).

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F.

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Plaintiff fails to state a claim upon which § 1983 relief can be granted because he

Causation

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sets forth no individualized allegations of wrongdoing by Sheriff Gore or Helen Robbins-

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Meyer, and instead seeks to hold them vicariously liable for the actions of individual

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deputies. See Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . .

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§ 1983 suits,” Plaintiff “must plead that each Government-official defendant, though the

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official’s own individual actions, has violated the Constitution.”)

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Plaintiff’s FAC contains no factual allegations describing what Defendant Sheriff

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Gore or Robbins-Meyer knew, did, or failed to do, with regard to Plaintiff’s needs.

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Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of

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course, a required element of a § 1983 claim.”) “The inquiry into causation must be

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individualized and focus on the duties and responsibilities of each individual defendant
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whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v.

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Murphy, 844 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode, 423 U.S. 362, 370-71

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(1976); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986).
Thus, without some specific “factual content” that might allow the Court to “draw

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the reasonable inference” that Sheriff Gore or Robbins-Meyer may be held personally

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liable for any unconstitutional conduct directed at Plaintiff, the Court finds his FAC, as

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currently pleaded, contains allegations which Iqbal makes clear fail to “state a claim to

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relief that is plausible on its face.” Iqbal, 556 U.S. at 568.

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G.

Excessive Force claims

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As to the excessive for claims brought against Defendants Vianzon, Ventura and

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Andrade, the Court finds Plaintiff’s claims sufficient to survive the “low threshold” for

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proceeding past the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and

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1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012; Iqbal, 556 U.S. at

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678.

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IV.

Motion for Sanctions

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Plaintiff also has filed a “Request for Sanctions” in which he claims that he is

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being “denied ‘access to court’ by County Sheriff Employees.” (ECF No. 6 at 1.) While

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it is not clear what relief Plaintiff is seeking, it appears that he claims he has had

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difficulty in obtaining his inmate trust account statement. (Id.) However, Plaintiff has

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now submitted his inmate trust account statement to the Court, see ECF No. 17 at 2, and

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thus, Plaintiff’s request is moot.

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V.

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Leave to Amend
Because the Court has determined that some of Plaintiff’s claims survive the sua

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sponte screening process, the Court will give Plaintiff the opportunity to either: (1)

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notify the Court of the intent to proceed with his excessive force claims against the

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named Defendants; or (2) file an amended pleading correcting all the deficiencies of

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pleading identified by the Court in this Order. Plaintiff must choose one of these options

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within forty-five (45) days from the date this Order is filed. If Plaintiff chooses to
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proceed as to his excessive force claims only, the Court will issue an Order directing the

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U.S. Marshal to effect service of his FAC and dismiss the remaining claims and

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defendants.

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VI.

Conclusion and Order

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For all the reasons explained the Court:

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1.

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(ECF No. 11).

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2.

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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

DIRECTS the Watch Commander of GBDF, or his designee, to collect from

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

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

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

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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 the Watch

Commander, San Diego Central Jail, 1173 Front Street, San Diego, California, 92158.

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4.

DENIES Motion to Appoint Counsel (ECF No. 15.)

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5.

DENIES Plaintiff’s Motion for Sanctions, Motion to Add Defendants, and

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Motion Requesting Leave to File Amended Complaint and Motion for Leave to Proceed

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IFP (ECF Nos. 6, 10, 17) as moot.

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5.

DISMISSES Plaintiff’s claims against William Gore and Helen Robbins-

Meyer for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).
6.

DISMISSES Plaintiff’s claims against Jessica Paugh for seeking monetary

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damages against an immune defendant pursuant to 28 U.S.C. § 1915(e)(2) and

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§1915A(b).

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7.

GRANTS Plaintiff forty-five (45) days leave from the date of this Order in

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which to either: (1) Notify the Court of the intention to proceed with excessive force

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claims only; or (2) File an Amended Complaint which cures all the deficiencies of
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pleading noted. Plaintiff’s Amended Complaint must be complete in itself without

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reference to his original pleading. Defendants not named and any claims not re-alleged in

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the Amended Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; Hal

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Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)

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(“[A]n amended pleading supersedes the original.”); Lacey, 693 F.3d at 928 (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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If Plaintiff fails to choose either option within the time provided, this civil action

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will remain dismissed without prejudice based on his failure to state a claim upon which

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relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
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The Clerk of Court is directed to mail Plaintiff a court approved form civil

rights complaint.
IT IS SO ORDERED.
Dated: March 1, 2017

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