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)

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FILED 2 OCT 0·3 2017 - 3 CLERK, U.S. DI SOUTHERN DISTRI 4 BY 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 DIANGELO K. JOHNSON, BOP No. 96690-198, Plaintiff, 13 14 Case No.: 3:17-cv-01732-WQH-WVG vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2) 15 16 17 18 19 20 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) 21 Plaintiff, Diangelo K. Johnson, an inmate currently incarcerated at the 23 Metropolitan Correctional Center ("MCC") located in San Diego, California has filed a 24 civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1) and a Motion to Proceed 25 In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § l 915(a) (ECF No. 2). Because 26 Plaintiffs Motion to Proceed IFP complies with 28 U.S.C. § l 915(a)(2), the Court grants 27 him leave to proceed without full prepayment of the civil filing fees, but dismisses his 28 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 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 plaintiffs failure to 5 prepay the entire fee only ifhe 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). However, 7 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in 8 "increments" or "installments," Bruce v. Samuels,_ U.S. _, 136 S. Ct. 627, 629 9 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 10 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b )(1) & (2); Taylor v. 11 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section l 915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 13 "certified copy of the trust fund account statement (or institutional equivalent) for ... the 14 6-month period immediately preceding the filing of the complaint." 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly 18 balance in the account for the past six months, whichever is greater, unless the prisoner 19 has no assets. See 28 U.S.C. § 1915(b)(l); 28 U.S.C. § 1915(b)(4). The institution having 20 custody of the prisoner then collects subsequent payments, assessed at 20% of the 21 preceding month's income, in any month in which his account exceeds $10, and forwards 22 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 23 Bruce, 136 S. Ct. at 629. 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-01732-WQH-WVG . , 1 In support of his IFP Motion, Plaintiff has submitted a BOP Inmate Statement 2 Report, together with a prison certificate completed by an MCC accounting official 3 attesting to his trust account activity and balances for the six-months preceding the filing 4 of his Complaint. See ECF No. 2 at 4-5; 28 U.S,C. § l 915(a)(2); S.D. CAL. C1vLR 3.2; 5 Andrews, 398 F.3d at 1119. These statements show that Plaintiff had an average monthly 6 balance of$70.44, and average monthly deposits of$140.00 to his account over the 6- 7 month period immediately preceding the filing of his Complaint, as well as an available 8 balance of$12.60 at the time of filing. See ECF No, 2 at 4. Based on this financial 9 information, the Court GRANTS Plaintiffs Motion to Proceed IFP (ECF No. 2), and 10 assesses his initial partial filing fee to be $28.00 pursuant to 28 U.S.C, § 1915(b)(l). 11 However, the Court will direct the Warden for MCC, or their designee, to collect 12 this initial fee only if sufficient funds are available in Plaintiffs account at the time this 13 Order is executed, See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a 14 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 15 judgment for the reason that the prisoner has no assets and no means by which to pay the 16 initial partial filing fee."); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 17 28 U.S.C. § l 915(b )( 4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP 18 case based solely on a "failure to pay .. , due to the lack of funds available to him when 19 payment is ordered."). The remaining balance of the $350 total fee owed in this case must 20 be collected and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(l). 21 B. 22 23 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- 24 Answer screening pursuant to 28 U.S,C. § 1915(e)(2) and§ 1915A(b). Under these 25 statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of 26 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 27 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en bane) 28 (discussing 28 U.S,C, § 1915(e)(2)); Rhodes v. Robinson, 621F.3d1002, 1004 (9th Cir. 3 3:17-cv-01732-WQH-WVG 1 2010) (discussing 28 U.S.C. § l 915A(b)). "The purpose of [screening] is 'to ensure that 2 the targets of frivolous or malicious suits need not bear the expense of responding.'" 3 Nordstrom v. Ryan, 762 F.3d 903, 920 n.l (9th Cir. 2014) (quoting Wheeler v. Wexford 4 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 5 "The standard for determining whether a plaintiff has failed to state a claim upon 6 which relief can be granted under§ l 915(e)(2)(B)(ii) is the same as the Federal Rule of 7 Civil Procedure 12(b)(6) standard for failure to state a claim." Watison v. Carter, 668 8 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 9 Cir. 2012) (noting that screening pursuant to§ 1915A "incorporates the familiar standard 10 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 11 12(b)(6)"). Rule 12(b)(6) requires a complaint to "contain sufficient factual matter, 12 accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 13 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 14 1. 15 Plaintiffs Complaint is not entirely clear but it appears that he purchased a vehicle Plaintifrs allegations 16 from Defendant, De La Fuente Cadillac of El Cajon. (See Comp!. at 2.) On January 5, 17 2016, Plaintiff claims that the "2017 registration" for the vehicle had been "suspended" 18 due to fees not having been paid. (Id.) Plaintiff "received a telephone call from Mr. 19 Gallardo (Steve Gallardo service manager assistant)" informing Plaintiff that he should 20 bring his "vehicle [to the dealership] for service." (Id.) Plaintiff alleges that he was 21 stopped by officers with the San Diego Police Department because of the "unpaid fees." 22 (Id. at 3.) Plaintiff claims this gave the officers "probable cause to investigate what 23 officers believed was a stolen vehicle." (Id.) As a result, Plaintiff alleges Defendants 24 violated his Fourth Amendment rights because they were responsible for the unpaid fees 25 which allowed SDPD officers to stop and presumably arrest Plaintiff. (Id.) 26 27 Plaintiff seeks $100,000 in damages due to "loss of income that Mr. Johnson now suffers due to being incarcerated." (Id.) 28 4 3: l 7-cv-01732-WQH-WVG u.s.c. § 1983 1 2. 2 Title 42 U.S.C. § 1983 provides a cause of action for the "deprivation of any rights, 42 3 privileges, or immunities secured by the Constitution and laws" of the United States. 4 Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under§ 1983, a plaintiff must 5 allege two essential elements: ( 1) that a right secured by the Constitution or laws of the 6 United States was violated, and (2) that the alleged violation was committed by a person 7 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of 8 Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 9 Here, the Court finds that Defendant, a purported corporation, is not alleged to be 10 "person[ s] acting under color of state law." See West; 487 U.S. at 48; Sutton v. 11 Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (stating that the party 12 charged with a constitutional deprivation under § 1983 must be a person who may fairly 13 be said to be a governmental actor) (citation and quotations omitted). 14 The Constitution protects individual rights only from government action and not 15 from private action; it is only when the government is responsible for the specific conduct 16 of which the plaintiff complains that individual constitutional rights are implicated. 17 Single Moms, Inc. v. Mont. Power Co., 331 F.3d 743, 746-47 (9th Cir. 2003). Generally, 18 private parties do not act under color of state law. See Price v. Hawai 'i, 939 F.2d 702, 19 707-08 (9th Cir. 1991). Section "1983 excludes from its reach merely private conduct, no 20 matter how discriminatory or wrong." Sutton, 193 F.3d at 835 (citing Am. Mfrs. Mut. Ins. 21 Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted)); 22 see also Ouzts v. Md. Nat'! Ins. Co., 505 F.2d 547, 551 (9th Cir.1974) (a purely private 23 actor may be liable for his misconduct in state court, but his conduct is not actionable 24 under Section 1983, regardless of how egregious). 25 In order for private conduct to constitute governmental action, "something more" 26 must be alleged. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939 (1982) ("Action 27 by a private party pursuant to [§ 1983], without something more, [i]s not sufficient to 28 justify a characterization of that party as a 'state actor."'). Courts have used four different 5 3:17-cv-01732-WQH-WVG 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 3 id.; Johnson v. Knowles, 113 F .3d 1114, 1118 (9th Cir. 1997); Parks Sch. of Bus., Inc. v. 4 Symington, 51F.3d1480, 1486 (9th Cir. 1995); Gorenc v. Salt River Project Agric. 5 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 6 7 corporation he has named as Defendant performed any public function traditionally 8 reserved to the state, acted as a willful participant in joint action with government agents, 9 was compelled or coerced, or had any connection whatsoever with the state, when it 10 allegedly injured Plaintiff. See Iqbal, 556 U.S. at 678; Lugar, 457 U.S. at 939. 11 C. Conclusion and Order 12 Good cause appearing, the Court: 13 1. 14 15 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 16 from Plaintiff's trust account the $28.00 initial filing fee assessed, if those funds are 17 available at the time this Order is executed, and to forward whatever balance remains of 18 the full $350 owed in monthly payments in an amount equal to twenty percent (20o/o) of 19 the preceding month's income to the Clerk of the Court each time the amount in 20 Plaintiff's account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 21 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 22 THIS ACTION. 23 3. 24 25 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 26 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2) and§ 1915A(b), and GRANTS 27 him forty-five (45) days leave from the date of this Order in which to file an Amended 28 Complaint which cures all the deficiencies of pleading noted. Plaintiff's Amended 6 3:17-cv-01732-WQH-WVG 1 Complaint must be complete in itself without reference to his original pleading. 2 Defendants not named and any claims not re-alleged in the Amended Complaint will be 3 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 4 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) ("[A]n amended pleading supersedes 5 the original."); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (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 9 10 11 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. 12 7 3:17-cv-01732-WQH-WVG

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