Chatman v. Toyota of Escondido et al

Filing 18

ORDER Granting 2 Motion for Leave to Proceed in forma pauperis. The Court: DIRECTS the Secretary of the CDCR, or his designee, to collect from Plaintiff's trust account the $350 filing fee; DIRECTS the Clerk of the Court to serve a c opy of this Order on Scott Kernan, Secretary; DISMISSES the Complaint; CERTIFIES that an IFP appeal from this Order would be frivolous; DIRECTS the Clerk of Court to close the file. Signed by Judge Cynthia Bashant on 11/7/17. (All non-registered users served via U.S. Mail Service)(dlg)

1
2
3
4
5
6
7
8
9
10
11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

12
13

ERIC C. CHATMAN,
Plaintiff,

14
15

Case No. 17-cv-01853-BAS-JLB
ORDER:

v.
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
(ECF No. 2)

16
17
18

TOYOTA OF ESCONDIDO, et al.,
Defendants.

AND

19
(2) DISMISSING CIVIL ACTION
FOR FAILING TO STATE A CLAIM
PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)(ii)

20
21
22
23
24

Plaintiff Eric C. Chatman (“Plaintiff”), proceeding pro se and incarcerated at

25

California Institution for Men (“CIM”), in Chino, California, has filed this civil rights

26

action pursuant to 42 U.S.C. § 1983. (ECF No. 1.)

27

Plaintiff did not prepay the $400 civil filing fee required by 28 U.S.C. § 1914(a), but

28

instead, filed a Motion to Proceed In Forma Pauperis (“IFP”). (ECF No. 2.) He has since
1
17cv1853

1

submitted no fewer than seven letters addressed to the Court and detailing the allegations

2

raised in the Complaint. (ECF Nos. 3-14, 16-17.) Those letters have been accepted for

3

filing in light of Plaintiff’s pro se status, and despite Local Rule 83.9, which clearly

4

prohibits such ex parte communications. (Id.)

5
6

I.

MOTION TO PROCEED IFP

7

All parties instituting any civil action, suit, or proceeding in a district court of the

8

United States, except an application for writ of habeas corpus, must pay a filing fee of

9

$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

10

prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

11

§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

12

Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a prisoner2 at the

13

time of filing, even if he is granted leave to proceed IFP, he remains obligated to pay the

14

entire filing fee in “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S.

15

Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and

16

regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2);

17

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

18

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

19

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

20

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

21
22
1

25

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

26

2

23
24

27
28

For purposes of the IFP statute, a “prisoner” is “any person incarcerated or detained in
any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms and conditions or parole, probation, pretrial
release, or diversionary program.” 28 U.S.C. § 1915(h).
2
17cv1853

1

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

2

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

3

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

4

in the account for the past six months, whichever is greater, unless the prisoner has no

5

assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody

6

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

7

month’s income, in any month in which his account exceeds $10, and forwards those

8

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

9

136 S. Ct. at 629.

10

In support of his IFP Motion, Plaintiff has also submitted a copy of his CDCR Inmate

11

Statement Report showing his available balance and trust account activity at CIM. See ECF

12

No. 15; 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L. R. 3.2; Andrews, 398 F.3d at 1119. This

13

statement shows that while Plaintiff had $100.33 deposited to his account over the six-

14

month period immediately preceding the filing of the Complaint, he had an available

15

balance of zero at the time of filing. See ECF No. 15 at 2. Based on this accounting, the

16

Court GRANTS Plaintiff’s Motion to Proceed IFP, and will assess no initial partial filing

17

fee pursuant to 28 U.S.C. § 1915(b)(1). See 28 U.S.C. § 1915(b)(4) (providing that “[i]n

18

no event shall a prisoner be prohibited from bringing a civil action or appealing a civil

19

action or criminal judgment for the reason that the prisoner has no assets and no means by

20

which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at

21

850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a

22

prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available

23

to him when payment is ordered.”). The Court will further direct the Secretary of the

24

CDCR, or his designee, to instead collect the entire $350 balance of the filing fees required

25

by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the installment

26

payment provisions set forth in 28 U.S.C. § 1915(b)(1). See id.

27

//

28

//
3
17cv1853

1

II.

SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)

2

A.

3

If a prisoner’s complaint “seeks redress from a governmental entity or officer or

4

employee of a governmental entity,” the Court “shall review” the pleading “as soon as

5

practicable after docketing,” and “dismiss the complaint, or any portion of the complaint,

6

if [it] . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted.”

7

28 U.S.C. § 1915A(a), (b)(1); Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014).

8

Here, Plaintiff seeks to sue a car manufacturer, one of its dealerships, and a sales manager

9

for allegedly drugging and raping him while he was employed there in 1996 through 1998.

10

See ECF No. 1 at 1-5. Plaintiff does not seek redress from or name any governmental actors

11

or entities as defendants. Id. at 1-2. Therefore, § 1915A(a)’s screening provisions do not

12

apply. See Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016) (“Section 1915A

13

mandates early review . . . for all complaints ‘in which a prisoner seeks relief from a

14

governmental entity . . . .”) (quoting § 1915A(a)); see also Thompson v. Hicks, No. 06-

15

14110, 2007 WL 106785 at *3 (11th Cir. 2007) (noting that because a private defendant

16

was not a “governmental entity” as described in § 1915A, prisoner’s complaint as to that

17

defendant was not subject to dismissal under § 1915A).

Standard Of Review

18

Because Plaintiff is proceeding IFP, however, his Complaint is still subject to a sua

19

sponte review, and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a claim

20

upon which relief may be granted, or seek[s] monetary relief from a defendant immune

21

from such relief,” regardless of whether he seeks redress from a “governmental entity.” See

22

28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015) (stating

23

that, pursuant to 28 U.S.C. § 1915(e)(2), “the court shall dismiss the case at any time if the

24

court determines that—(A) the allegation of poverty is untrue; or (B) the action or appeal—

25

(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be granted”);

26

Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only

27

permits, but requires a district court to dismiss an in forma pauperis complaint that fails to

28

state a claim.”).
4
17cv1853

1

“The standard for determining whether a plaintiff has failed to state a claim upon

2

which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

3

Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

4

1108, 1112 (9th Cir. 2012). To survive a motion to dismiss, the complaint must contain “a

5

short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

6

R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals

7

of the elements of a cause of action, supported by mere conclusory statements, do not

8

suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

9

550 U.S. 544, 555 (2007)). “Determining whether a complaint states a plausible claim for

10

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

11

experience and common sense.” Id. The “mere possibility of misconduct” falls short of

12

meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962,

13

969 (9th Cir. 2009).

14

“When there are well-pleaded factual allegations, a court should assume their

15

veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

16

Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

17

(“[W]hen determining whether a complaint states a claim, a court must accept as true all

18

allegations of material fact and must construe those facts in the light most favorable to the

19

plaintiff.”).

20

However, while the court “ha[s] an obligation where the petitioner is pro se,

21

particularly in civil rights cases, to construe the pleadings liberally and to afford the

22

petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

23

2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply

24

essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the

25

Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

26

//

27

//

28

//
5
17cv1853

Plaintiff’s Allegations

1

B.

2

As noted above, Plaintiff seeks millions of dollars in general and punitive damages

3

from Toyota of Escondido, Toyota Motor Sales USA, and Rick Whitting, who is alleged

4

to have been a Toyota sales manager, for allegedly drugging and raping him while he was

5

employed as a salesman at Toyota from 1996 through 1998. See ECF No. 1 at 1-7. He

6

asserts no legal basis for his claims, but instead merely provides the lurid details of

7

Defendants’ purported offenses in a series of letters addressed to the Court and requests

8

additional forms of relief—including the payment of child support, back taxes, and other

9

forms of debt foregiveness. See ECF Nos. 4, 6, 8, 10, 12.

10
11

C.

12

Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and

13

statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d

14

1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege

15

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

16

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

17

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

18

1030, 1035-36 (9th Cir. 2015).

42 U.S.C. § 1983

19

First, none of the named Defendants is alleged to be a “person acting under color of

20

state law.” See West, 487 U.S. at 48; Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d

21

826, 835 (9th Cir. 1999) (holding that the party charged with a constitutional deprivation

22

under § 1983 must be a person who may fairly be said to be a governmental actor) (citation

23

and quotations omitted). “A civil rights plaintiff suing a private individual under § 1983

24

must demonstrate that the private individual acted under color of state law; plaintiffs do

25

not enjoy Fourteenth Amendment protections against “private conduct abridging

26

individual rights.’” Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002) (quoting Burton v.

27

Wilmington Parking Auth., 365 U.S. 715, 722 (1961)). Section 1983 liability attaches only

28

to individuals “who carry a badge of authority of a State and represent it in some capacity.”
6
17cv1853

1

Monroe v. Pape, 365 U.S. 167 (1961), overruled in part by Monell v. Dep’t of Soc. Servs.,

2

436 U.S. 658 (1978).

3

The Constitution protects individual rights only from government action and not

4

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

5

alleged that individual constitutional rights are implicated. Single Moms, Inc. v. Mont.

6

Power Co., 331 F.3d 743, 746-47 (9th Cir. 2003). Generally, private parties do not act

7

under color of state law. See Price v. Hawai’i, 939 F.2d 702, 707-08 (9th Cir. 1991).

8

Section “1983 excludes from its reach merely private conduct, no matter how

9

discriminatory or wrong.” Sutton, 193 F.3d at 835 (citing Am. Mfrs. Mut. Ins. Co. v.

10

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

11

Ouzts v. Md. Nat’l Ins. Co., 505 F.2d 547, 551 (9th Cir. 1974) (stating a purely private

12

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

13

Section 1983, regardless of how egregious).

14

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

15

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

16

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

17

a characterization of that party as a ‘state actor.’”). Courts have used four different factors

18

or tests to identify what constitutes “something more”: (1) public function, (2) joint action,

19

(3) governmental compulsion or coercion, and (4) governmental nexus. See id.; Johnson v.

20

Knowles, 113 F.3d 1114, 1118 (9th Cir. 1997); Parks Sch. of Bus., Inc. v. Symington, 51

21

F.3d 1480, 1486 (9th Cir. 1995); Gorenc v. Salt River Project Agric. Improvement and

22

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

23

As currently pleaded, the Complaint fails to allege facts sufficient to plausibly show

24

that Toyota of San Diego, Toyota Motor Sales USA, or Rick Whitting performed any

25

public function traditionally reserved to the state, acted as willful participants in joint action

26

with government agents, were compelled or coerced by, or had any connection whatsoever

27

with, the state when they allegedly engaged in a plot to drug and rape him approximately

28

twenty years ago. See Iqbal, 556 U.S. at 678; Lugar, 457 U.S. at 939.
7
17cv1853

1

Second, Plaintiff has not alleged the violation of any “right secured by the

2

Constitution or laws of the United States” whatsoever. See West, 487 U.S. at 48 (citing 42

3

U.S.C. § 1983). He may not rely on § 1983 as an independent, substantive claim. See Cholla

4

v. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 978 (9th Cir. 2004). “[O]ne cannot go

5

into court and claim a ‘violation of § 1983’—for § 1983 by itself does not protect anyone

6

against anything.” Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979).

7

“Section 1983 does not create any substantive rights; rather it is the vehicle whereby

8

plaintiffs can challenge actions by governmental officials.” Henderson v. City of Simi

9

Valley, 305 F.3d 1052, 1056 (9th Cir. 2002). Plaintiff’s § 1983 suit fails if he does not

10

allege a plausible violation of his federal constitutional or statutory rights. Cholla, 382 F.3d

11

at 978; Iqbal, 556 U.S. at 676 (“[A] [§1983] plaintiff must plead that each Government-

12

official defendant, through the official’s own individual actions, has violated the

13

Constitution.”).

14

Finally, to the extent Plaintiff seeks to bring state charges based on Defendants’

15

alleged acts of criminal wrongdoing, § 1983 offers him no recourse. See Campbell v. Burt,

16

141 F.3d 927, 930 (9th Cir. 1998) (finding that violations of state law alone do not support

17

a claim of liability under § 1983); Alexandre v. Phibbs, 116 F.3d 482 (9th Cir. 1997)

18

(holding that § 1983 claims may not be predicated upon the violation of criminal statutes);

19

see also Buckheit v. Dennis, 713 F. Supp. 2d 910, 919 (N.D. Cal. 2010) (citing Doe v.

20

Connecticut Dept. Of Child & Youth Services, 911 F.2d 868, 869 (2nd Cir. 1990) (“A

21

violation of state law neither gives plaintiffs a § 1983 claim nor deprives defendants of the

22

defense of qualified immunity to a proper § 1983 claim.”)); Ward v. City of Barstow, et al.,

23

No. EDCV-15-00444-DSF(KES), 2017 WL 4877389, at *16 (C.D. Cal. June 23, 2017)

24

(stating, in the Magistrate Judge’s Report and Recommendation, that alleged violation of

25

the California Penal Code “cannot form the basis of a federal claim under § 1983” as a

26

matter of law).

27

//

28

//
8
17cv1853

1

Thus, for all these reasons, the Court finds Plaintiff’s Complaint fails to state a claim

2

upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez, 203 F.3d at

3

1130.

4
5

III.

CONCLUSION

6

For all the reasons discussed, the Court:

7

1.

8
9

GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. §
1915(a) (ECF No. 2.);

2.

DIRECTS the Secretary of the CDCR, or his designee, to collect from

10

Plaintiff’s trust account the $350 filing fee owed in this case by

11

garnishing monthly payments from his account in an amount equal to

12

twenty percent (20%) of the preceding month’s income and forwarding

13

those payments to the Clerk of the Court each time the amount in the

14

account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2), noting that all

15

payments shall be clearly identified by the name and number assigned

16

to this action;

17

3.

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

18

Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California,

19

94283-0001;

20

4.

DISMISSES the Complaint (ECF No. 1) for failure to state a claim

21

upon which § 1983 relief can granted pursuant to 28 U.S.C. §§

22

1915(e)(2)(B)(ii), and DENIES leave to amend as futile (see Rosati v.

23

Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (finding that leave to

24

amend is not required if it is “absolutely clear that the deficiencies of

25

the complaint could not be cured by amendment”) (internal citations

26

omitted));

27
28

5.

CERTIFIES that an IFP appeal from this Order would be frivolous,
and therefore not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3)
9
17cv1853

1

(see Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v.

2

Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is

3

permitted to proceed IFP on appeal only if appeal would not be

4

frivolous)); and
DIRECTS the Clerk of Court to close the file.3

5

6.

6

IT IS SO ORDERED.

7
8

DATED: November 7, 2017

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

While the Court has previously accepted Plaintiff’s letters for filing despite his failure to
comply with the Court’s Local Rules, he is hereby cautioned that Local Civil Rule 83.9
provides that “attorneys or parties to any action must refrain from writing letters to the
judge,” and that “[p]ro se litigants must follow the same rules of procedure that govern
other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, any additional
letters he attempts to file will be rejected based on Local Rule 83.9, and because this Order
terminates his case.
10
3

17cv1853