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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 DARYL GRAY, Booking #16113441, ORDER: Plaintiff, 13 14 Case No.: 3:16-cv-2978-DMS-JMA vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 11] 15 16 17 18 19 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. 20 3) DISMISSING CLAIMS FOR PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) 21 22 23 24 Daryl Gray (“Plaintiff”), currently incarcerated at the San Diego Central Jail 25 (“SDCJ”) in San Diego, California, and proceeding pro se, has filed a civil rights 26 complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has also filed a Motion for 27 Appointment of Counsel (ECF No. 15), a “Motion for Sanctions for Being Denied 28 Access to Court” (ECF No. 6), a “Motion to Add Defendant(s) to Complaint” (ECF No. 1 3:16-cv-2978-DMS-JMA 1 10), a “Motion Requesting Leave to File Amended Complaint and Motion for Leave to 2 Proceed In Forma Pauperis” (ECF No. 17), as well as a Motion to Proceed In Forma 3 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 11). 4 In addition, before the Court could conduct the required sua sponte screening, 5 Plaintiff filed a First Amended Complaint (“FAC”) which is now the operative pleading. 6 (ECF No. 13.) 7 I. Motion to Proceed IFP 8 All parties instituting any civil action, suit or proceeding in a district court of the 9 United States, except an application for writ of habeas corpus, must pay a filing fee of 10 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 11 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 12 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 13 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 14 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 15 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 16 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 17 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 18 2002). 19 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 20 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 21 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 22 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 23 trust account statement, the Court assesses an initial payment of 20% of (a) the average 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-2978-DMS-JMA 1 monthly deposits in the account for the past six months, or (b) the average monthly 2 balance in the account for the past six months, whichever is greater, unless the prisoner 3 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 4 custody of the prisoner then collects subsequent payments, assessed at 20% of the 5 preceding month’s income, in any month in which his account exceeds $10, and forwards 6 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 7 Bruce, 136 S. Ct. at 629. 8 In support of his IFP Motion, Plaintiff has submitted a prison certificate authorized 9 by a SDCJ administrative sergeant attesting to his trust account activity. See ECF No. 17 10 at 2; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. This 11 statement shows that Plaintiff’s current available balance is only $1.61. See 28 U.S.C. 12 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 13 civil action or appealing a civil action or criminal judgment for the reason that the 14 prisoner has no assets and no means by which to pay the initial partial filing fee.”); 15 Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) 16 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a 17 “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), 18 19 declines to “exact” any initial filing fee because his trust account statement shows he “has 20 no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Watch Commander at SDCJ 21 to instead collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 22 and forward them to the Clerk of the Court pursuant to the installment payment 23 provisions set forth in 28 U.S.C. § 1915(b)(1). 24 /// 25 /// 26 /// 27 28 3 3:16-cv-2978-DMS-JMA 1 II. 2 Motion to Appoint Counsel Plaintiff seeks appointment of counsel to assist him in this matter. (ECF No. 15.) 3 However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept. of 4 Social Services, 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1), district 5 courts have some limited discretion to “request” that an attorney represent an indigent 6 civil litigant, Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004), 7 this discretion is rarely exercised and only under “exceptional circumstances.” Id.; see 8 also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional 9 circumstances requires “an evaluation of the likelihood of the plaintiff’s success on the 10 merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the 11 complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103, quoting Wilborn 12 v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Applying these factors to Plaintiff’s case, the Court DENIES his Motion to 13 14 Appoint Counsel because a liberal construction of his original pleadings shows he is 15 capable of articulating the factual basis for his claims. All documents filed by pro se 16 litigants are construed liberally, and “a pro se complaint, however inartfully pleaded, 17 must be held to less stringent standards than formal pleadings drafted by lawyers.” 18 Erickson v. Pardus, 551 U.S. 89, 94 (2007). Moreover, FED. R. CIV. P. 8(e) requires that 19 “[p]leadings . . . be construed so as to do justice.” 20 The pleadings filed by Plaintiff to date demonstrate that while Plaintiff may not be 21 a trained in law, he is capable of legibly articulating the facts and circumstances relevant 22 to his claims, which are typical, straightforward, and not legally “complex.” Agyeman, 23 390 F.3d at 1103. Therefore, neither the interests of justice nor any exceptional 24 circumstances warrant the appointment of counsel in this case at this time. LaMere v. 25 Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. 26 /// 27 /// 28 /// 4 3:16-cv-2978-DMS-JMA 1 III. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 2 A. 3 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- Standard of Review 4 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 5 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 6 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 7 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 8 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 9 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 10 the targets of frivolous or malicious suits need not bear the expense of responding.’” 11 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 12 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 13 “The standard for determining whether a plaintiff has failed to state a claim upon 14 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 15 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 16 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 17 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 18 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 19 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 20 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 21 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 22 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 23 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 24 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 25 relief [is] ... a context-specific task that requires the reviewing court to draw on its 26 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 27 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 28 this plausibility standard. Id. 5 3:16-cv-2978-DMS-JMA Plaintiff’s Allegations 1 B. 2 On October 28, 2016, Plaintiff claims that four San Diego County Sheriff Deputies 3 “pulled up to me and my girlfriend” in their patrol cars, drew their weapons and ordered 4 Plaintiff and his girlfriend to get down on the ground. (FAC at 3.) Plaintiff claims they 5 complied but the Deputies “jumped on my back and neck” which caused Plaintiff to 6 “pass out.” (Id.) Plaintiff alleges that he “woke in the back seat of the police car in 7 serious pain” but when he was taken to the County Jail he alleges that he was denied 8 adequate medical care. (Id.) 9 Approximately two weeks later, on November 17, 2016, Plaintiff had a preliminary 10 hearing based on criminal charges brought by Deputy District Attorney Jessica Paugh. 11 (See id. at 4.) Plaintiff claims he is being “maliciously prosecuted” by Defendant Paugh 12 whom he claims is “racially motivated.” (Id.) Finally, Plaintiff claims that Defendants 13 William Gore and Helen Robbins-Meyer are liable for “ethical misconduct” in their 14 supervisory capacity. (Id. at 5.) 15 16 Plaintiff seeks 10.5 million in compensatory damages and 5.6 million in punitive damages, as well as injunctive relief. (Id. at 7.) 17 C. 18 “Section 1983 creates a private right of action against individuals who, acting 42 U.S.C. § 1983 19 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 20 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 21 substantive rights, but merely provides a method for vindicating federal rights elsewhere 22 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 23 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 24 deprivation of a right secured by the Constitution and laws of the United States, and (2) 25 that the deprivation was committed by a person acting under color of state law.” Tsao v. 26 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 27 /// 28 /// 6 3:16-cv-2978-DMS-JMA Criminal Proceedings – Law Enforcement Defendants 1 D. 2 First, to the extent Plaintiff seeks damages against law enforcement officials and 3 claims they falsely arrested and “maliciously prosecuted” him, he may not pursue those 4 claims in a civil rights action pursuant to 42 U.S.C. § 1983, without first showing those 5 convictions have already been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87 6 (1994). 7 8 9 10 11 12 13 14 15 16 17 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 18 ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state 19 prisoner who is making a constitutional challenge to the conditions of his prison life, but 20 not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 21 2003), quoting Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973) (holding that a writ of 22 habeas corpus is “explicitly and historically designed” to provide a state prisoner with the 23 “exclusive” means to “attack the validity of his confinement” in federal court). 24 Because Plaintiff seeks damages based on an arrest and criminal charges he claims 25 are “false,” his claims amount to an attack on the validity of his underlying criminal 26 conviction, and may not proceed pursuant to § 1983, unless his conviction has already 27 been invalidated. Heck, 512 U.S. at 486-87; Ramirez, 334 F.3d at 855-56 (“Absent such a 28 showing, ‘[e]ven a prisoner who has fully exhausted available state remedies has no 7 3:16-cv-2978-DMS-JMA 1 cause of action under § 1983.’”), quoting Heck, 512 U.S. at 489. In other words, were 2 Plaintiff to succeed in showing that Defendants conspired to wrongfully convict him, an 3 award of damages would “necessarily imply the invalidity” of his conviction and/or 4 sentence. Heck, 512 U.S. at 487; see also Guerrero v. Gates, 442 F.3d 697, 701 (9th Cir. 5 2006) (finding § 1983 action stemming from allegations of wrongful arrest, malicious 6 prosecution, and a general conspiracy of “bad behavior” among officials in connection 7 with the plaintiff’s arrest, prosecution, and incarceration were barred by Heck). 8 E. 9 Second, to the extent Plaintiff seeks damages against Deputy District Attorney Judicial and Prosecutorial Immunity 10 Paugh for prosecuting Plaintiff on criminal charges, she is entitled to absolute 11 prosecutorial immunity. Ashelman v. Pope, 793 F.2d 1072, 1077 (9th Cir. 1986) (“Where 12 a prosecutor acts as an advocate ‘in initiating a prosecution and in presenting the state’s 13 case,’ absolute immunity applies.” (quoting Imbler v. Pachtman, 424 U.S. 409, 431 14 (1976)); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 912 (9th Cir. 2012) 15 (“Prosecutors performing their official prosecutorial functions are entitled to absolute 16 immunity against constitutional torts.”). 17 F. 18 Plaintiff fails to state a claim upon which § 1983 relief can be granted because he Causation 19 sets forth no individualized allegations of wrongdoing by Sheriff Gore or Helen Robbins- 20 Meyer, and instead seeks to hold them vicariously liable for the actions of individual 21 deputies. See Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . 22 § 1983 suits,” Plaintiff “must plead that each Government-official defendant, though the 23 official’s own individual actions, has violated the Constitution.”) 24 Plaintiff’s FAC contains no factual allegations describing what Defendant Sheriff 25 Gore or Robbins-Meyer knew, did, or failed to do, with regard to Plaintiff’s needs. 26 Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of 27 course, a required element of a § 1983 claim.”) “The inquiry into causation must be 28 individualized and focus on the duties and responsibilities of each individual defendant 8 3:16-cv-2978-DMS-JMA 1 whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. 2 Murphy, 844 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode, 423 U.S. 362, 370-71 3 (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 4 5 the reasonable inference” that Sheriff Gore or Robbins-Meyer may be held personally 6 liable for any unconstitutional conduct directed at Plaintiff, the Court finds his FAC, as 7 currently pleaded, contains allegations which Iqbal makes clear fail to “state a claim to 8 relief that is plausible on its face.” Iqbal, 556 U.S. at 568. 9 G. Excessive Force claims 10 As to the excessive for claims brought against Defendants Vianzon, Ventura and 11 Andrade, the Court finds Plaintiff’s claims sufficient to survive the “low threshold” for 12 proceeding past the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 13 1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012; Iqbal, 556 U.S. at 14 678. 15 IV. Motion for Sanctions 16 Plaintiff also has filed a “Request for Sanctions” in which he claims that he is 17 being “denied ‘access to court’ by County Sheriff Employees.” (ECF No. 6 at 1.) While 18 it is not clear what relief Plaintiff is seeking, it appears that he claims he has had 19 difficulty in obtaining his inmate trust account statement. (Id.) However, Plaintiff has 20 now submitted his inmate trust account statement to the Court, see ECF No. 17 at 2, and 21 thus, Plaintiff’s request is moot. 22 V. 23 Leave to Amend Because the Court has determined that some of Plaintiff’s claims survive the sua 24 sponte screening process, the Court will give Plaintiff the opportunity to either: (1) 25 notify the Court of the intent to proceed with his excessive force claims against the 26 named Defendants; or (2) file an amended pleading correcting all the deficiencies of 27 pleading identified by the Court in this Order. Plaintiff must choose one of these options 28 within forty-five (45) days from the date this Order is filed. If Plaintiff chooses to 9 3:16-cv-2978-DMS-JMA 1 proceed as to his excessive force claims only, the Court will issue an Order directing the 2 U.S. Marshal to effect service of his FAC and dismiss the remaining claims and 3 defendants. 4 VI. Conclusion and Order 5 For all the reasons explained the Court: 6 1. 7 (ECF No. 11). 8 2. 9 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 10 payments from his account in an amount equal to twenty percent (20%) of the preceding 11 month’s income and forwarding those payments to the Clerk of the Court each time the 12 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 13 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 14 ASSIGNED TO THIS ACTION. 15 16 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. 17 4. DENIES Motion to Appoint Counsel (ECF No. 15.) 18 5. DENIES Plaintiff’s Motion for Sanctions, Motion to Add Defendants, and 19 Motion Requesting Leave to File Amended Complaint and Motion for Leave to Proceed 20 IFP (ECF Nos. 6, 10, 17) as moot. 21 22 23 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 24 damages against an immune defendant pursuant to 28 U.S.C. § 1915(e)(2) and 25 §1915A(b). 26 7. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 27 which to either: (1) Notify the Court of the intention to proceed with excessive force 28 claims only; or (2) File an Amended Complaint which cures all the deficiencies of 10 3:16-cv-2978-DMS-JMA 1 pleading noted. Plaintiff’s Amended Complaint must be complete in itself without 2 reference to his original pleading. Defendants not named and any claims not re-alleged in 3 the Amended Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; Hal 4 Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 5 (“[A]n amended pleading supersedes the original.”); Lacey, 693 F.3d at 928 (noting that 6 claims dismissed with leave to amend which are not re-alleged in an amended pleading 7 may be “considered waived if not repled.”). 8 If Plaintiff fails to choose either option within the time provided, this civil action 9 will remain dismissed without prejudice based on his failure to state a claim upon which 10 11 12 13 14 relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). 8. The Clerk of Court is directed to mail Plaintiff a court approved form civil rights complaint. IT IS SO ORDERED. Dated: March 1, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 3:16-cv-2978-DMS-JMA

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