Fkadu v. Mize et al

Filing 3

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. The Court: 1. GRANTS Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2); and 2. DISMISSES Plaintiff's Complaint for failing to state a claim upon which relief may be granted and as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and without leave to amend. 3. CERTIFIES that an IFP appeal from this Order would also be frivolous and therefore, could not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous). Signed by Judge William Q. Hayes on 8/3/2017. (All non-registered users served via U.S. Mail Service)(acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 BERIHU H. FKADU, Patient #063295-0, ORDER: Plaintiff, 13 vs. 14 15 Case No.: 3:17-cv-01184-WQH-PCL 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF. No. 2] RANDY MIZE, et al. Defendants. 16 AND 17 2) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED AND AS FRIVOLOUS PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 18 19 20 21 22 23 Berihu Fkadu (“Plaintiff”), proceeding pro se, and civilly detained at Atascadero 24 State Hospital (“ASH”) in Atascadero, California, has filed this civil action pursuant to 42 25 U.S.C. § 1983 (ECF No. 1). 26 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead 27 he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) 28 (ECF No. 2). 1 3:17-cv-01184-WQH-PCL 1 I. Motion to Proceed IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 7 However, “[u]nlike other indigent litigants, prisoners proceeding IFP must pay the 8 full amount of filing fees in civil actions and appeals pursuant to the PLRA [Prison 9 Litigation Reform Act].” Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As defined 10 by the PLRA, a “prisoner” is “any person incarcerated or detained in any facility who is 11 accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of 12 criminal law or the terms and conditions of parole, probation, pretrial release, or 13 diversionary program.” 28 U.S.C. § 1915(h). 14 A “civil detainee” on the other hand, like Plaintiff, is not a “prisoner” within the 15 meaning of the PLRA. Andrews v. King, 398 F.3d 1113, 1122 (9th Cir 2005); Agyeman, 16 296 F.3d at 886 (holding that INS detainee not also facing criminal charges is not a 17 “prisoner” under § 1915); see also Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000) 18 (person confined under California’s Sexually Violent Predator Law, while “a ‘prisoner’ 19 within the meaning of the PLRA when he served time for his conviction, . . . ceased being 20 a ‘prisoner’ when he was released from the custody of the Department of Corrections.”); 21 Mullen v. Surtshin, 590 F. Supp. 2d 1233, 1240 (N.D. Cal. 2008) (holding plaintiff 22 “adjudicated NGI [not guilty by reason of insanity] and committed to [Napa State Hospital] 23 as a result of that adjudication” was “not a prisoner as defined by the PLRA.”). 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. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:17-cv-01184-WQH-PCL 1 Thus, because Plaintiff is a civilly committed patient at ASH, and not a “prisoner” 2 as defined by 28 U.S.C. § 1915(h) when he filed this action, the filing fee provisions of 28 3 U.S.C. § 1915(b) do not apply. Andrews, 398 F.3d at 1122. Therefore, the Court has 4 reviewed Plaintiff’s affidavit of assets, just as it would for any other non-prisoner litigant 5 seeking IFP status, and finds it is sufficient to show that he is unable to pay the fees or post 6 securities required to maintain this action. See S.D. CAL. CIVLR 3.2(d). Accordingly, the 7 Court GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF 8 No. 2). 9 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2) 10 A. 11 A complaint filed by any person proceeding in forma pauperis is subject to sua 12 sponte dismissal, however, if it is “frivolous, malicious, fail[s] to state a claim upon which 13 relief may be granted, or seek[s] monetary relief from a defendant immune from such 14 relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 15 (per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 16 prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 17 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis 18 complaint that fails to state a claim.”). Standard of Review 19 All complaints must contain “a short and plain statement of the claim showing that 20 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are not 21 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 22 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 23 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a 24 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 25 reviewing court to draw on its judicial experience and common sense.” Id. The “mere 26 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 27 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 28 “When there are well-pleaded factual allegations, a court should assume their 3 3:17-cv-01184-WQH-PCL 1 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 2 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 3 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 4 allegations of material fact and must construe those facts in the light most favorable to the 5 plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 6 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 7 However, while the court “ha[s] an obligation where the petitioner is pro se, 8 particularly in civil rights cases, to construe the pleadings liberally and to afford the 9 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 10 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply 11 essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the 12 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Plaintiff’s Complaint 13 B. 14 The Complaint appears to allege that since “early 1995” various public defenders, 15 alternate public defenders, private criminal counsel and appellate counsel have conspired 16 with prosecutors and judges to have him convicted of crimes. (ECF No. 1 at 2-7). 17 C. 18 Plaintiff’s claims arose when he was engaged in criminal proceedings in 1995. (ECF 19 No. 1 at 1, 5). “A claim may be dismissed [for failing to state a claim] on the ground that 20 it is barred by the applicable statute of limitations only when ‘the running of the statute is 21 apparent on the face of the complaint.’” Von Saher v. Norton Simon Museum of Art at 22 Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 23 465 F.3d 992, 997 (9th Cir. 2006)). “‘A complaint cannot be dismissed unless it appears 24 beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness 25 of the claim.’” Id. (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 26 1995)); see also Cervantes v. City of San Diego, 5 F.3d 1273, 1276-77 (9th Cir. 1993) 27 (where the running of the statute of limitations is apparent on the face of a complaint, 28 dismissal for failure to state a claim is proper, so long as Plaintiff is provided an opportunity Statute of Limitations 4 3:17-cv-01184-WQH-PCL 1 to amend in order to allege facts which, if proved, might support tolling); see also Tahoe- 2 Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 788 (9th Cir. 3 2000) (court may raise the defense of statute of limitations sua sponte); Hughes v. Lott, 4 350 F.3d 1157, 1163 (11th Cir. 2003) (upholding sua sponte dismissal under 28 U.S.C. § 5 1915(e)(2)(B) of prisoner’s time-barred complaint). 6 Because section 1983 contains no specific statute of limitation, federal courts apply 7 the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393 8 F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); 9 Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Before 2003, California’s statute of 10 limitations was one year. Jones, 393 F.3d at 927. Effective January 1, 2003, the limitations 11 period was extended to two years. Id. (citing CAL. CIV. PROC. CODE § 335.1). The law of 12 the forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 394 (2007) (citing 13 Hardin v. Straub, 490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 927 (noting that in 14 actions where the federal court borrows the state statute of limitation, the federal court also 15 borrows all applicable provisions for tolling the limitations period found in state law). 16 Under California law, the statute of limitations for prisoners serving less than a life 17 sentence is tolled for two years. CAL. CIV. PROC. CODE § 352.1(a); Johnson v. California, 18 207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 U.S. 499 (2005). 19 Accordingly, the effective statute of limitations for most California prisoners is three years 20 for claims accruing before January 1, 2003 (one year limitations period plus two year 21 statutory tolling), and four years for claims accruing thereafter (two year limitations period 22 plus two years statutory tolling). 23 Unlike the length of the limitations period, however, “the accrual date of a § 1983 24 cause of action is a question of federal law that is not resolved by reference to state law.” 25 Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543-44 (federal law governs when a § 1983 26 cause of action accrues). “Under the traditional rule of accrual ... the tort cause of action 27 accrues, and the statute of limitation begins to run, when the wrongful act or omission 28 results in damages.” Wallace, 549 U.S. at 391. “Under federal law, a claim accrues when 5 3:17-cv-01184-WQH-PCL 1 the plaintiff knows or has reason to know of the injury which is the basis of the action.” 2 Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). 3 In this case, the “wrongful act” which is alleged to have caused Plaintiff harm 4 occurred more than twenty years before Plaintiff filed his Complaint in this action, and far 5 outside California’s statute of limitations, even including all presumed periods of tolling 6 provided by statute, or pending the exhaustion of any administrative remedies. Wallace, 7 591 U.S. at 391; see also Maldonado, 370 F.3d at 955; CAL. CODE CIV. PROC. § 335.1 8 (tolling statute of limitations “for a maximum of 2 years” during a prisoner’s incarceration); 9 Jones, 393 F.3d at 927; Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (finding that 10 “the applicable statute of limitations must be tolled while a prisoner completes the 11 mandatory exhaustion process” required by 42 U.S.C. § 1997e(a)). 12 Finally, Plaintiff’s claims could be considered timely if, in his Complaint, he alleges 13 facts sufficient to show the limitations period may be equitably tolled. See Cervantes, 5 14 F.3d at 1276-77. Generally, federal courts also apply the forum state’s law regarding 15 equitable tolling. Fink, 192 F.3d at 914; Bacon v. City of Los Angeles, 843 F.2d 372, 374 16 (9th Cir.1988). Under California law, however, Plaintiff must meet three conditions to 17 equitably toll the statute of limitations: (1) he must have diligently pursued his claim; (2) 18 his situation must be the product of forces beyond his control; and (3) Defendants must not 19 be prejudiced by the application of equitable tolling. See Hull v. Central Pathology Serv. 20 Med. Clinic, 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994); Addison v. State of 21 California, 21 Cal.3d 313, 316-17 (Cal. 1978); Fink, 192 F.3d at 916. 22 As currently pleaded, however, the Court finds Plaintiff has failed to plead any facts 23 which, if proved, would support any plausible claim for equitable tolling. See Cervantes, 5 24 F.3d at 1277; Iqbal, 556 U.S. at 679. 25 Plaintiff pursued these identical claims against some of the named Defendants in 2016. See In addition, the Court takes judicial notice that 26 27 28 6 3:17-cv-01184-WQH-PCL 1 Fkadu v. Mize, et al., S.D. Cal. Civil Case No. 3:16-cv-01120-CAB-RBB.2 2 Accordingly, the Court finds Plaintiff’s claims are barred by the statute of 3 limitations, and his entire Complaint must be dismissed for failing to state a claim upon 4 which section 1983 relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Barren, 152 5 F.3d at 1194. 6 D. 7 The Court also finds Plaintiff’s Complaint is frivolous. A pleading is “factual[ly] Frivolous claims 8 frivolous[]” if “the facts alleged rise to the level of the irrational or the wholly incredible, 9 whether or not there are judicially noticeable facts available to contradict them.” Denton 10 v. Hernandez, 504 U.S. 25, 25-26 (1992). While most of Plaintiff’s Complaint contains 11 disjointed allegations, and are difficult to discern, he alleges that the Defendants have 12 been “faking & ganging mindlessly & polluting me & persecuting me & my loved one & 13 or my supporters.” (ECF No. 1 at 5). He also alleges that Defendant Price “bizarrely 14 ganged with Ethiopians (traitors & secretive criminals for future dictators, etc.).” (Id. at 15 6). 16 “[A] complaint, containing as it does both factual allegations and legal 17 conclusions, is frivolous where it lacks an arguable basis either in law or in fact. . . . 18 [The] term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable 19 legal conclusion, but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 20 319, 325 (1989). When determining whether a complaint is frivolous, the court need not 21 accept the allegations as true, but must “pierce the veil of the complaint’s factual 22 allegations,” Id. at 327, to determine whether they are “‘fanciful,’ ‘fantastic,’ [or] 23 ‘delusional,’” Denton, 504 U.S. at 33 (quoting Neitzke, 490 U.S. at 328). Here, the Court finds that Plaintiff’s claims “rise to the level of the irrational or the 24 25 26 27 28 2 The Court takes judicial notice that Plaintiff has filed fifteen actions pursuant to 42 U.S.C. § 1983 in the Southern District of California since 2006. See (website last visited July 26, 2017). 7 3:17-cv-01184-WQH-PCL 1 wholly incredible,” Denton, 504 U.S. at 33, and as such, his Complaint requires dismissal 2 as frivolous and without leave to amend. See Lopez v. Smith 203 F.3d 1122, 1127 n.8 3 (9th Cir. 2000) (en banc) (noting that if a claim is classified as frivolous, “there is by 4 definition no merit to the underlying action and so no reason to grant leave to amend.”). 5 III. Conclusion and Order 6 Good cause appearing, the Court: 7 1. 8 9 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2); and 2. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 10 relief may be granted and as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and without 11 leave to amend. 12 3. CERTIFIES that an IFP appeal from this Order would also be frivolous and 13 therefore, could not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See 14 Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 15 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if 16 appeal would not be frivolous). 17 18 19 IT IS SO ORDERED. Dated: August 3, 2017 20 21 22 23 24 25 26 27 28 8 3:17-cv-01184-WQH-PCL

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