Menchaca, Jr. v. San Diego Sheriff's Department

Filing 5

ORDER granting 4 renewed Motion to Proceed in forma pauperis and dismissing complaint for failing to state a claim pursuant to 28 USC 1915(e)(2) and 1915(A(b). The Court directs the Watch Commander of VDF, or his designee, to collect from Plaintiff s trust account the $350 filing fee owed in this case by garnishing monthly payments from his account in an amount equal to twenty percent (20%) of the preceding months income and forwarding those payments to the Clerk of the Court each tim e the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). Plaintiff is granted 45 days leave to file an Amended Complaint. Signed by Judge John A. Houston on 2/13/2018. (cc: Watch Commander, Vista Detention Facility). (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANTONIO MORA MENCHACA, Jr.,
Booking No. 16105447,

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ORDER:

Plaintiff,

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Case No.: 3:17-cv-02059-JAH-JMA

vs.

1) GRANTING RENEWED MOTION
TO PROCEED IN FORMA
PAUPERIS [ECF No. 4]

SAN DIEGO SHERIFF’S
DEPARTMENT,

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Defendant.

AND

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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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ANTONIO MORA MENCHACA, Jr. (“Plaintiff”), while in the custody of the San

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Diego Sheriff’s Department Vista Detention Facility (“VDF”) and proceeding pro se,

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filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 on October 5, 2017. See

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Compl., ECF No. 1.

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Plaintiff seeks to sue the San Diego Sheriff’s Department based on claims that he

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was subject to an unreasonable use of force at the George Bailey Detention Facility

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sometime “between February [and] April 2016.” Id. at 3. He seeks $1,250,000 in general

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and punitive damages for his health and “mental problems.” Id. at 4.
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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

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the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a)).
On October 27, 2017, the Court denied Plaintiff’s initial Motion to Proceed IFP

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because he failed to attach a certified copy of his VDF trust account statement. See ECF

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No. 3 at 3 (citing 28 U.S.C. § 1915(a)(2)). Nevertheless, the Court also granted Plaintiff

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forty-five days leave in which to complete and file a properly supported IFP Motion, and

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the Clerk 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

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$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite his failure to prepay the

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entire 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, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182,

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1185 (9th Cir. 2015), and regardless of whether his action is dismissed. See 28 U.S.C.

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§ 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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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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Section 1915(a)(2) 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) (hereafter “King”).

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

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

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

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

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The institution having custody of the prisoner then collects subsequent payments,

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assessed at 20% of the preceding month’s income, in any month in which his account

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exceeds $10, and forwards those payments to the Court until the entire filing fee is paid.

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See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.

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In support of his renewed IFP Motion, Plaintiff has now submitted a Prison

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Certificate issued by the VDF Facility Commander attesting to his trust account activity

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and balances for the 6-month period preceding the filing of his Complaint. See ECF No. 4

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at 5; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. This

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certificate shows that Plaintiff has carried no average monthly balance, has had no

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monthly deposits to his account and, consequently, no available balance on the books at

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the time of filing. See ECF No. 4 at 5. Based on this accounting, no initial partial filing

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fee is assessed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner

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

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

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partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28

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U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case

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

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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
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has “no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Facility Commander at

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

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

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

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III.

Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

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A.

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Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre-

Standard of Review

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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 banc)

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

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2010) (discussing 28 U.S.C. § 1915A(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.1 (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 § 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

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

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

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009).

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B.

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Plaintiff claims the San Diego Sheriff’s Department violated his right to be free

Plaintiff’s Allegations

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from “cruel and unusual punishment” sometime “between February [and] April 2016,”

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and while he was held in custody at the George Bailey Detention Facility. See ECF No. 1

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at 2-3. Plaintiff claims he was assaulted by six unidentified Sheriff’s Department officers

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who were responding to a fight between other inmates inside the “2B module” where he

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was also housed. Id. at 3. Plaintiff contends he was asleep at the time, did not understand

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what the officers were “screaming” because he does not “completely understand

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English,” and just “stood by [his] bunk.” The officers grabbed him, slammed him to the

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floor, and hit him with closed fists. Id. Plaintiff claims he “unconsciously tr[ied] to

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defend [him]self” by holding on to his bunk, but the officers “knock[ed] him out of

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consciousness,” broke his wrist, head, and ankle and bruised his arm, back, and face. Id.

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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

42 U.S.C. § 1983

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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).

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D.

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First, while it is not clear whether Plaintiff remained a pretrial detainee or had been

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convicted and was awaiting sentence “between February [and] April 2016,” at the time of

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the incident, his Complaint contains factual allegations sufficient to show the violation of

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a right “secured by the Constitution.” 42 U.S.C. § 1983; West, 487 U.S. at 48; Kingsley v.

Analysis

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Hendrickson, __ U.S. __, 135 S. Ct. 2466, 2473 (2015) (“[T]he Due Process Clause

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protects a pretrial detainee from the use of excessive force that amounts to punishment.”)

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(citing Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). Under Kingsley, a pretrial

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detainee, unlike a convicted prisoner, need not prove that the defendant subjectively

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knew that the force applied was excessive; that state-of-mind inquiry is “solely ...

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objective.” Id. at 2473; Austin v. Baker, 616 F. App’x 365, 366 (9th Cir. 2015); see also

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Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (When prison officials stand accused of

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using excessive force in violation of the Eighth Amendment, the core judicial inquiry is

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“... whether force was applied in a good-faith effort to maintain or restore discipline, or

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maliciously and sadistically to cause harm.”).
Critically, however, Plaintiff has named only the “San Diego Sheriff’s

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Department” as a Defendant, and not the individual Sheriff’s Department officers who

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are alleged to have beaten him. See ECF No. 1 at 1-2. Departments of municipal entities

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are not “persons” subject to suit under § 1983; therefore, a local law enforcement

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department (like the San Diego County Sheriff’s Department) is not a proper party. See

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Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (“Naming a

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municipal department as a defendant is not an appropriate means of pleading a § 1983

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action against a municipality.”) (citation omitted); Powell v. Cook County Jail, 814 F.

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Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes liability on any ‘person’ who

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violates someone’s constitutional rights ‘under color of law.’ Cook County Jail is not a

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‘person.’”).

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“Persons” under § 1983 are state and local officials sued in their individual

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capacities, private individuals and entities which act under color of state law, and/or the

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local governmental entity itself. Vance, 928 F. Supp. at 995-96. The Sheriff’s Department

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is managed by and/or a department of the County of San Diego, but it is not a “person”

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subject to suit under § 1983. See e.g., United States v. Kama, 394 F.3d 1236, 1239 (9th

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Cir. 2005) (“[M]unicipal police departments and bureaus are generally not considered

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‘persons’ within the meaning of section 1983.”); Rodriguez v. Cnty. of Contra Costa,
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2013 WL 5946112 at *3 (N.D. Cal. Nov. 5, 2013) (citing Hervey v. Estes, 65 F.3d 784,

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791 (9th Cir. 1995)) (“Although municipalities, such as cities and counties, are amenable

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to suit under Monell [v. Dep’t of Social Servs, 436 U.S. 658 (1978)], sub-departments or

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bureaus of municipalities, such as the police departments, are not generally considered

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“persons” within the meaning of § 1983.”); Nelson v. Cty. of Sacramento, 926 F. Supp.

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2d 1159, 1170 (E.D. Cal. 2013) (dismissing Sacramento Sheriff’s Department from

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section 1983 action “with prejudice” because it “is a subdivision of a local government

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entity,” i.e., Sacramento County); Gonzales v. City of Clovis, 2013 WL 394522 (E.D. Cal.

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Jan. 30, 2013) (holding that the Clovis Police Department is not a “person” for purposes

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of section 1983); Wade v. Fresno Police Dep’t, 2010 WL 2353525 at *4 (E.D. Cal. June

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9, 2010) (finding the Fresno Police Department to not be a “person” under section 1983).

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Therefore, Plaintiff cannot pursue his excessive force claims against the Sheriff’s

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Department. See Boone v. Deutsche Bank Nat’l Tr. Co., No. 2:16-CV-1293-GEB-KJN-

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PS, 2017 WL 117966, at *3 (E.D. Cal. Jan. 12, 2017) (“Because the Solano County

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Sheriff’s Department is not a ‘person’ within the meaning of Section 1983, plaintiffs

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cannot maintain their claims against it under that statute as a matter of law.”).

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To the extent Plaintiff intends to assert a claim against the County of San Diego

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itself, his allegations are also insufficient. A municipal entity is liable under section 1983

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only if Plaintiff alleges his constitutional injury was caused by employees acting pursuant

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to the municipality’s policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle,

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429 U.S. 274, 280 (1977); Monell, 436 U.S. at 691; Villegas v. Gilroy Garlic Festival

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Ass’n, 541 F.3d 950, 964 (9th Cir. 2008).

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While Plaintiff claims to have been subject to excessive force at the hands on

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several unidentified “Sheriff’s officers,” see ECF No. 1 at 3, he alleges no facts to

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suggest the force was employed pursuant to any municipal custom, policy, or practice,

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and a local governmental entity, like the County of San Diego, may not be held

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vicariously liable under section 1983 simply based on the allegedly unconstitutional acts

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of its employees. See Board of Cty. Comm’rs. v. Brown, 520 U.S. 397, 403 (1997);
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Monell, 436 U.S. at 691 (“[A] a municipality cannot be held liable solely because it

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employs a tortfeasor.”); Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir. 2014). Instead,

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the municipality may be held liable “when execution of a government’s policy or custom

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... inflicts the injury.” Monell, 436 U.S. at 694; Los Angeles Cty., Cal. v. Humphries, 562

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U.S. 29, 36 (2010).

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For these reasons, Plaintiff’s Complaint must be dismissed sua sponte for failing to

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state a claim upon which § 1983 relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii);

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§ 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Wilhelm, 680 F.3d at 1121.

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IV.

Conclusion and Orders

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For the reasons explained, the Court:

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1.

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GRANTS Plaintiff’s Renewed Motion to Proceed IFP pursuant to 28 U.S.C.

§ 1915(a) (ECF No. 4).
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DIRECTS the Watch Commander of VDF, or his designee, to collect from

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

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payments from his account in an amount equal to twenty percent (20%) of the preceding

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month’s income and forwarding those payments to the Clerk of the Court each time the

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amount in the 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 the Watch

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Commander, San Diego Sheriff’s Department Vista Detention Facility, 325 South

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Melrose Drive, Vista, California, 92083.

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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)(B) and § 1915A(b), and

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

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Amended Complaint which cures the deficiencies of pleading noted, if he can. Plaintiff’s

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Amended Complaint must be complete by itself without reference to his original

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pleading. Defendants not named and any claim not re-alleged in his Amended Complaint
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will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard

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

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

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(noting that claims dismissed with leave to amend which are not re-alleged in an

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amended pleading may be “considered waived if not repled.”).

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If Plaintiff fails to file an Amended Complaint within the time provided, the Court

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will enter a final Order dismissing this civil action based both on Plaintiff’s failure to

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state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)

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and 1915A(b), and his failure to prosecute in compliance with a court order requiring

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amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

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not take advantage of the opportunity to fix his complaint, a district court may convert the

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dismissal of the complaint into dismissal of the entire action.”).

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IT IS SO ORDERED.

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Dated: February 13, 2018
HON. JOHN A. HOUSTON
United States District Judge

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