Johnson v. De La Fuente Cadillac of El Cajon

Filing 3

ORDER (1) Granting Motion To Proceed In Forma Pauperis (Dkt # 2 ) And (2) Dismissing Complaint For Failing To State A Claim: The Warden of MCC is ordered to collect from Plaintiff's trust account the $28.00 initial filing fee assessed, if those funds are available at the time this Order is executed, and to forward whatever balance remains of the full $350 owed in monthly payments in an amount equal to 20% of the preceding month's income to the Clerk of the Court each ti me the amount exceeds $10 pursuant to 28 USC 1915(b)(2). The Court grants plaintiff 45 days leave to fine an Amended Complaint. Signed by Judge William Q. Hayes on 10/3/2017. (MCC Warden served electronically and via U.S. Mail. All non-registered users served via U.S. Mail Service. Per Order, a blank amended 1983 Complaint also was sent to plaintiff.) (mdc)

FILED
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OCT 0·3 2017 -

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CLERK, U.S. DI
SOUTHERN DISTRI

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BY

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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DIANGELO K. JOHNSON,
BOP No. 96690-198,
Plaintiff,

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Case No.: 3:17-cv-01732-WQH-WVG

vs.

1) GRANTING MOTION TO

PROCEED IN FORMA PAUPERIS
[ECF No. 2)

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ORDER:

DE LA FUENTE CADILLAC OF EL
CAJON

AND

Defendants.

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

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Plaintiff, Diangelo K. Johnson, an inmate currently incarcerated at the
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Metropolitan Correctional Center ("MCC") located in San Diego, California has filed a

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civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1) and a Motion to Proceed

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In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § l 915(a) (ECF No. 2). Because

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Plaintiffs Motion to Proceed IFP complies with 28 U.S.C. § l 915(a)(2), the Court grants

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him leave to proceed without full prepayment of the civil filing fees, but dismisses his

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

3: l 7-cv-01732-WQH-WVG

1 A.

Plaintiff's IFP Motion

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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 plaintiffs failure to

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prepay the entire fee only ifhe 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). However,

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prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in

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"increments" or "installments," Bruce v. Samuels,_ U.S. _, 136 S. Ct. 627, 629

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(2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of

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whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b )(1) & (2); Taylor v.

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Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Section l 915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a

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

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

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

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

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

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

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

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

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

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

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Bruce, 136 S. Ct. at 629.

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In addition to the $350 statutory fee, civil litigants must pay an additional administrative
fee of$50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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3:17-cv-01732-WQH-WVG

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,

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In support of his IFP Motion, Plaintiff has submitted a BOP Inmate Statement

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Report, together with a prison certificate completed by an MCC accounting official

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attesting to his trust account activity and balances for the six-months preceding the filing

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of his Complaint. See ECF No. 2 at 4-5; 28 U.S,C. § l 915(a)(2); S.D. CAL. C1vLR 3.2;

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Andrews, 398 F.3d at 1119. These statements show that Plaintiff had an average monthly

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balance of$70.44, and average monthly deposits of$140.00 to his account over the 6-

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month period immediately preceding the filing of his Complaint, as well as an available

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balance of$12.60 at the time of filing. See ECF No, 2 at 4. Based on this financial

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information, the Court GRANTS Plaintiffs Motion to Proceed IFP (ECF No. 2), and

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assesses his initial partial filing fee to be $28.00 pursuant to 28 U.S.C, § 1915(b)(l).

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However, the Court will direct the Warden for MCC, or their designee, to collect

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this initial fee only if sufficient funds are available in Plaintiffs account at the time this

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Order is executed, See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a

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prisoner be prohibited from bringing a civil action or appealing a civil action or criminal

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judgment for the reason that the prisoner has no assets and no means by which to pay the

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

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28 U.S.C. § l 915(b )( 4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP

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

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payment is ordered."). The remaining balance of the $350 total fee owed in this case must

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be collected and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(l).

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B.

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Legal Standards for Screening Complaint Pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)
Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

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

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

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

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

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(discussing 28 U.S,C, § 1915(e)(2)); Rhodes v. Robinson, 621F.3d1002, 1004 (9th Cir.
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3:17-cv-01732-WQH-WVG

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2010) (discussing 28 U.S.C. § l 915A(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.l (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§ l 915(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 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); Wilhelm, 680 F.3d at 1121.

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1.

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Plaintiffs Complaint is not entirely clear but it appears that he purchased a vehicle

Plaintifrs allegations

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from Defendant, De La Fuente Cadillac of El Cajon. (See Comp!. at 2.) On January 5,

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2016, Plaintiff claims that the "2017 registration" for the vehicle had been "suspended"

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due to fees not having been paid. (Id.) Plaintiff "received a telephone call from Mr.

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Gallardo (Steve Gallardo service manager assistant)" informing Plaintiff that he should

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bring his "vehicle [to the dealership] for service." (Id.) Plaintiff alleges that he was

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stopped by officers with the San Diego Police Department because of the "unpaid fees."

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(Id. at 3.) Plaintiff claims this gave the officers "probable cause to investigate what

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officers believed was a stolen vehicle." (Id.) As a result, Plaintiff alleges Defendants

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violated his Fourth Amendment rights because they were responsible for the unpaid fees

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which allowed SDPD officers to stop and presumably arrest Plaintiff. (Id.)

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Plaintiff seeks $100,000 in damages due to "loss of income that Mr. Johnson now
suffers due to being incarcerated." (Id.)

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3: l 7-cv-01732-WQH-WVG

u.s.c. § 1983

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

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

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

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

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

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

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

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Here, the Court finds that Defendant, a purported corporation, is not alleged to be

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"person[ s] acting under color of state law." See West; 487 U.S. at 48; Sutton v.

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Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (stating that the party

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charged with a constitutional deprivation under § 1983 must be a person who may fairly

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be said to be a governmental actor) (citation and quotations omitted).

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The Constitution protects individual rights only from government action and not

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from private action; it is only when the government is responsible for the specific conduct

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of which the plaintiff complains that individual constitutional rights are implicated.

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Single Moms, Inc. v. Mont. Power Co., 331 F.3d 743, 746-47 (9th Cir. 2003). Generally,

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private parties do not act under color of state law. See Price v. Hawai 'i, 939 F.2d 702,

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707-08 (9th Cir. 1991). Section "1983 excludes from its reach merely private conduct, no

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matter how discriminatory or wrong." Sutton, 193 F.3d at 835 (citing Am. Mfrs. Mut. Ins.

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Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted));

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see also Ouzts v. Md. Nat'! Ins. Co., 505 F.2d 547, 551 (9th Cir.1974) (a purely private

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actor may be liable for his misconduct in state court, but his conduct is not actionable

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under Section 1983, regardless of how egregious).

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In order for private conduct to constitute governmental action, "something more"

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must be alleged. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939 (1982) ("Action

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by a private party pursuant to [§ 1983], without something more, [i]s not sufficient to

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justify a characterization of that party as a 'state actor."'). Courts have used four different
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1 factors or tests to identify what constitutes "something more": (1) public function, (2)
2 joint action, (3) governmental compulsion or coercion, and (4) governmental nexus. See
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id.; Johnson v. Knowles, 113 F .3d 1114, 1118 (9th Cir. 1997); Parks Sch. of Bus., Inc. v.

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Symington, 51F.3d1480, 1486 (9th Cir. 1995); Gorenc v. Salt River Project Agric.

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Improvement and Power Dist., 869 F.2d 503, 506 (9th Cir. 1989).

Here, Plaintiff has failed to allege facts sufficient to plausibly show that the

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corporation he has named as Defendant performed any public function traditionally

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reserved to the state, acted as a willful participant in joint action with government agents,

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was compelled or coerced, or had any connection whatsoever with the state, when it

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allegedly injured Plaintiff. See Iqbal, 556 U.S. at 678; Lugar, 457 U.S. at 939.

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C.

Conclusion and Order

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Good cause appearing, the Court:

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1.

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

(ECF No. 2).

2.

ORDERS the Warden of the Metropolitan Correctional Center to collect

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from Plaintiff's trust account the $28.00 initial filing fee assessed, if those funds are

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available at the time this Order is executed, and to forward whatever balance remains of

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the full $350 owed in monthly payments in an amount equal to twenty percent (20o/o) of

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the preceding month's income to the Clerk of the Court each time the amount in

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Plaintiff's account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

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MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

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THIS ACTION.

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3.

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DIRECTS the Clerk of the Court to serve a copy of this Order on Warden,

Metropolitan Correctional Center, 808 Union Street, San Diego, California 92101.
4.

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

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

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

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Complaint which cures all the deficiencies of pleading noted. Plaintiff's Amended
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3:17-cv-01732-WQH-WVG

1 Complaint must be complete in itself without reference to his original pleading.
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Defendants not named and any claims not re-alleged in the Amended Complaint will be

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considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner

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

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

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

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may be "considered waived if not repled.").

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5.

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

blank copy of the Court's form "Complaint under the Civil Rights Act, 42 U.S.C.
§ 1983" for his use in amending.
IT IS SO ORDERED.

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