Moyer v. People of the State of California et al

Filing 5

ORDER: (1) Granting 4 Renewed Motion to Proceed in Forma Pauperis and; (2) Dismissing Civil Action for Failing to State a Claim, for Seeking Damages From Immune Defendants and as Frivolous Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A (b). It is ordered that the Secretary of the CDCR, or his designee, is to collect from Plaintiff's trust account the full $350 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding month's income to the Clerk of the Court each time the amount in Plaintiff's account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). Signed by Judge Janis L. Sammartino on 11/7/2017.(Order mailed to CDCR)(Order electronically transmitted to Secretary of CDCR) (All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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MAURICE D. MOYER, Sr.,
CDCR #AR-9913,

Case No.: 3:17-CV-00797-JLS-BLM

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ORDER: (1) GRANTING RENEWED
MOTION TO PROCEED IN FORMA
PAUPERIS [ECF No. 4] AND; (2)
DISMISSING CIVIL ACTION FOR
FAILING TO STATE A CLAIM, FOR
SEEKING DAMAGES FROM
IMMUNE DEFENDANTS AND AS
FRIVOLOUS PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)
AND § 1915A(b)

Plaintiff,
vs.

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PEOPLE OF THE STATE OF
CALIFORNIA, et al.
Defendants.

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Plaintiff Maurice D. Moyer, Sr. currently incarcerated at California State Prison –

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Sacramento (“CSP-SAC”) in Represa, California, and proceeding pro se, has filed a

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“petition for writ for civil rights complaint” seeking $15 million in punitive damages from

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the State of California, a San Diego Superior Court Judge, and the San Diego District

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Attorney based on his “wrongful imprisonment.” (See “Compl.,” ECF No. 1 at 1–2, 4, 29.)

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Plaintiff claims he was denied a fair and speedy trial and was convicted based on

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“insufficient evidence” in San Diego Superior Court Case No. SCE324735 sometime in

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2013. (Id. at 3, 6, 8–11, 14–23.)
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I.

Procedural History

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At the time he filed his Complaint, Plaintiff did not prepay the filing fee mandated

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by 28 U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). See Andrews v. Cervantes, 493 F.3d 1047,

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1051 (9th Cir. 2007) (a civil action may proceed despite a party’s failure to pay only if the

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party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a)).

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The Court denied Plaintiff’s initial Motion to Proceed IFP, however, because he

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failed to attach a certified copy of his prison trust account statement. (See ECF No. 3, at

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3) (citing 28 U.S.C. § 1915(a)(2)). Nevertheless, the Court also granted Plaintiff forty-five

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days leave in which to complete and file a properly supported IFP Motion, and the Clerk

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of Court provided him with a form for doing so. (Id. at 4.)

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Plaintiff has since filed a renewed Motion to Proceed IFP, together with the

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accounting which was missing from his original Motion (ECF No. 4).

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II.

Renewed Motion to Proceed In Forma Pauperis

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As Plaintiff now knows, to institute a civil action, he must pay a filing fee of $400.1

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See 28 U.S.C. § 1914(a). The action may proceed despite his failure to prepay the entire

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fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See

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Andrews, 493 F.3d at 1051; Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

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However, because he is a prisoner, even if he is granted leave to proceed IFP, Plaintiff

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remains obligated to pay the entire filing fee in “increments” or “installments,” Bruce v.

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Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir.

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2015), and regardless of whether his action is dismissed. See 28 U.S.C. § 1915(b)(1) &

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(2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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

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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.
June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed
IFP. Id.
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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) (hereafter “King”).

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From the certified trust account statement, the Court assesses an initial payment of 20% of

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

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

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

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having 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 renewed IFP Motion, Plaintiff has now submitted copies of his

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CDCR Inmate Statement Report for the 6-month period preceding the filing of his

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Complaint, as well as a certified prison certificate signed by senior accounting clerk at

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CSP-SAC attesting to his trust account activity and balances. (See ECF No. 4 at 4, 6–7);

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28 U.S.C. § 1915(a)(2); Civ. L. R. 3.2; King, 398 F.3d at 1119. These statements show

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that Plaintiff has carried no average monthly balance, has had no monthly deposits to his

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account over the 6-month period immediately preceding the filing of his Complaint, and,

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consequently, had no available balance on the books at the time of filing. (See ECF No. 4,

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at 4, 6.) Based on this accounting, no initial partial filing fee is assessed. 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 prisoner

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has no assets and no means by which to pay the initial partial filing fee”); Bruce, 136 S.

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Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-

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valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ...

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due to the lack of funds available to him when payment is ordered”).

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Therefore, the Court GRANTS Plaintiff’s renewed Motion to Proceed IFP, (ECF

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No. 4), declines to exact any initial filing fee because his prison certificate indicates he has
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“no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California

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Department of Corrections and Rehabilitation (“CDCR”), or his designee, to instead collect

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

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to the Clerk of the Court pursuant to the installment payment provisions set forth in 28

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U.S.C. § 1915(b)(1). See id.

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III.

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

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A.

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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 statutes,

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

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is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

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

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28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

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

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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)). A complaint is “frivolous” if it

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“lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324

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(1989).

Standard of Review

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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 F.3d

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

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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 to “contain sufficient factual matter,

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

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556 U.S. 662, 678 (2009) (internal quotation marks omitted).
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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 relief

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

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

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the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
Plaintiff’s Allegations

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B.

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While the legal basis for his suit, which Plaintiff captions as a “petition for writ for

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civil rights” is not altogether clear, (see Compl. 29), he seeks millions in punitive damages

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against the People of the State of California, the Southern District of California’s “District

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Attorney,” and the Honorable Joseph P. Brannigan, a San Diego County Superior Court

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Judge, for allegedly having denied him a speedy trial, a trial by jury, and wrongfully

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imprisoning him based on insufficient evidence in San Diego Superior Court Case Nos.

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SCE324735 and SCE262473.2 (See Compl. 1–6.)

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C.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,

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1035–36 (9th Cir. 2015).

42 U.S.C. § 1983

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D.

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As currently pleaded, Plaintiff’s Complaint is subject to sua sponte dismissal

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Discussion

pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) for several reasons.

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While Plaintiff names Judge Brannigan as a Defendant, (see Compl. 4), the exhibits attached to Plaintiff’s
Complaint indicate he was sentenced by a different judge on October 9, 2013, (id. at 17–20), after Judge
Brannigan found him mentally competent pursuant to Cal. Penal Code § 1370 on September 11, 2013.
(Id. at 22.)
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First, to the extent Plaintiff claims he was wrongfully imprisoned based on

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insufficient evidence and denied a fair trial, his suit “challeng[es] the validity of [his]

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continued incarceration [and therefore] lie[s] within ‘the heart of habeas corpus.’” Ramirez

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v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (quoting Preiser v. Rodriguez, 411 U.S. 475,

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489–99 (1973) (holding that a writ of habeas corpus is “explicitly and historically

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

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his confinement” in federal court)).

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Second, Plaintiff may not seek damages against any of the parties he has named as

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Defendants. The State of California is not a “person” within the meaning of § 1983 and is

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immune from suit under the Eleventh Amendment. See Will v. Michigan Dep’t of State

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Police, 491 U.S. 58, 66 (1989); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

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99–100 (1984) (Eleventh Amendment bars federal jurisdiction over suits by individuals

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against a State and its instrumentalities, unless either the State consents to waive its

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sovereign immunity or Congress abrogates it); see also Jackson v. Arizona, 885 F.2d 639,

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641 (9th Cir. 1989) (dismissing prisoner’s § 1983 suit against the State of Arizona as

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legally frivolous), superseded by statute on other grounds as stated in Lopez, 203 F.3d at

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1130; Brand v. Schubert, No. 2:16-CV-1811 MCE EFB P, 2017 WL 531721, at *2 (E.D.

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Cal. Feb. 7, 2017) (sua sponte dismissing § 1983 claims against the State of California on

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sovereign immunity grounds pursuant to 28 U.S.C. § 1915A).

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San Diego Superior Court Judge Brannigan is absolutely immune. “A seemingly

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impregnable fortress in American Jurisprudence is the absolute immunity of judges from

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civil liability for acts done by them within their judicial jurisdiction.”

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Thompson, 500 F.2d 59, 62 (9th Cir. 1974). “Judges are among those officials who ‘have

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long enjoyed a comparatively sweeping form of immunity,’ which has been justified on

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the theory that it helps ‘protect[ ] judicial independence by insulating judges from vexatious

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actions prosecuted by disgruntled litigants.’” Brooks v. Clark Cty., 828 F.3d 910, 915–16

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(9th Cir. 2016) (quoting Forrester v. White, 484 U.S. 219, 225 (1988)). Thus, “[j]udges

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are absolutely immune from damage liability for acts performed in their official

Gregory v.

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capacities.” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc) (“A judge

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lacks immunity where [s]he acts in the clear absence of all jurisdiction, or performs an act

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that is not judicial in nature.”) (internal quotation marks and citations omitted); Pierson v.

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Ray, 386 U.S. 547, 553–55 (1967); Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir.

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2001); Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004) (“Absolute

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immunity is generally accorded to judges and prosecutors functioning in their official

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capacities.”); see also Mainez v. Gore, No. 3:17-CV-01359-JAH-JLB, 2017 WL 4005269,

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at *5 (S.D. Cal. Sept. 11, 2017) (finding § 1983 claims for monetary damages against

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Superior Court Judge subject to sua sponte dismissal as frivolous pursuant to 28 U.S.C.

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§ 1915(e)(2)(B)(iii) & 1915A(b)). Because Plaintiff seeks to sue Judge Brannigan based

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on decisions rendered during Plaintiff’s criminal proceedings, whether they be related to

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his competency hearing, or to his ultimate conviction and sentence, his § 1983 claims are

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subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) and § 1915A(b)(2). See

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e.g., Brand v. Schubert, No. 2:16-CV-1811-MCE EFB P, 2017 WL 531721, at *2 (E.D.

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Cal. Feb. 7, 2017) (sua sponte dismissing § 1983 claims against judge presiding over

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criminal and mental competency proceedings pursuant to 28 U.S.C. § 1915A).

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Finally, the San Diego County District Attorney, mistakenly identified as the District

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Attorney for the “Southern District of California,” (see Compl. 4), is similarly entitled to

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absolute prosecutorial immunity. See Van de Kamp v. Goldstein, 555 U.S. 335, 341 (2009)

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(state prosecutors are entitled to absolute prosecutorial immunity for acts taken in their

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official capacity); Imbler v. Pachtman, 424 U.S. 409, 427, 430–31 (1976) (holding

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prosecutors absolutely immune from civil suits for damages under § 1983 for initiating

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criminal prosecutions and presenting cases); Olsen, 363 F.3d at 922; see also Jackson, 885

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F.2d at 641 (finding claim against prosecutors with clear immunity legally frivolous within

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the meaning of section 1915) (citation omitted); Chavez v. Robinson, 817 F.3d 1162, 1167

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(9th Cir. 2016) (Section 1915(e)(2)(B)(iii) requires sua sponte dismissal of claims barred

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by absolute immunity).

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///
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E.

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While the Court would typically grant Plaintiff leave to amend in light of his pro se

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status, it concludes that doing so under the circumstances would be futile. See Lopez, 203

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F.3d at 1127 n.8 (“When a case may be classified as frivolous or malicious, there is, by

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definition, no merit to the underlying action and so no reason to grant leave to amend.”);

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Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (leave to amend is not required if

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it is “absolutely clear that the deficiencies of the complaint could not be cured by

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amendment”) (internal citations omitted).

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IV.

Leave to Amend

Conclusion and Orders

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For the reasons discussed, the Court:

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1)

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GRANTS Plaintiff’s Renewed Motion to Proceed In Forma Pauperis, (ECF

No. 4);
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ORDERS the Secretary of the CDCR, or his designee, to collect from

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Plaintiff’s trust account the full $350 owed in monthly payments in an amount equal to

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twenty percent (20%) of the preceding month’s income to the Clerk of the Court each time

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

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PAYMENTS MUST 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 Scott

Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001;
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DISMISSES this civil action sua sponte for failing to state a claim upon

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which § 1983 relief can be granted, for seeking monetary damages against defendants who

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are absolutely immune, and as legally frivolous and pursuant to 28 U.S.C. § 1915(e)(2)(B)

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and § 1915A(b);

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CERTIFIES that an IFP appeal from this Order would also be frivolous, and

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therefore not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v.

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United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir.

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1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not
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be frivolous); and

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6)

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IT IS SO ORDERED.

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DIRECTS the Clerk of Court to close the file.

Dated: November 7, 2017

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