Combs v. Ribac et al

Filing 7

ORDER: The Court Grants Combs' Motion to Proceed IFP (ECF No. 2 ). The Warden of the MCC, or his designee, is ordered to collect from Combs' trust account the $350 balance of the filing fee owed in this case by garnishing monthly payme nts from his account in an amount equal to twenty percent (20%) of the preceding month's income and forwarding those payments to the Clerk of the Court each time the amount in Combs' account exceeds $10 pursuant to 28 U.S.C. § ; 1915(b)(2). The Court Dismisses Defendant United States Customs and Border Protection Agency for failure to state a claim upon which relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). The Court Grants Combs 9; Motion for Extension of Time (ECF No. 6 ). Case stayed until pending resolution of Combs' criminal proceedings in United States v. Combs, S.D. Cal. Civil Criminal Case No. 3:17-cr-03026-CAB-1. Combs is Ordered to file a Motion requesting the stay in these proceedings be lifted, together with a Motion requesting U.S. Marshal service upon Defendants Ribac and Artiles pursuant to Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915(d), within 30 days of the conclusion of his criminal case. Signed by Judge William Q. Hayes on 03/07/2018. (Copy of this Order served to Plaintiff and Warden Wayne Smith via U.S. Mail Service)(ajs)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 JOHN LELAND COMBS, Reg. No. 63884298, 14 15 16 17 ORDER Plaintiff, 12 13 Case No.: 3:17-cv-02381-WQH-BGS vs. NORBERTO RIBAC, U.S. Border Patrol Agent; JORGE ARTILES, U.S. Border Patrol Agent; UNITED STATES CUSTOMS AND BORDER PROTECTION AGENCY, Defendants. 18 19 Plaintiff John Leland Combs, a federal detainee currently housed at the Metropolitan 20 Correctional Center (“MCC”) in San Diego, California, and proceeding pro se, has filed a 21 civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). 22 Defendants Norberto Ribac and Jorge Artiles, both U.S. Customs and Border Patrol 23 Agents, together with the U.S. Department of Homeland Security Customs and Border 24 Protection Agency (“CBP”), violated his Fourth, Fifth and Fourteenth Amendment rights 25 by racially profiling him and using excessive force during the course of his arrest near a 26 checkpoint in Tecate, California, on September 2, 2017. Compl. at 1–9. Combs has not 27 prepaid the $400 filing fee required by 28 U.S.C. § 1914(a) to commence a civil action; 28 instead, he has filed a Motion to Proceed IFP (ECF No. 2). Combs claims 1 3:17-cv-02381-WQH-BGS 1 Combs has also filed a Motion and letter addressed to the Clerk of Court requesting 2 an extension of time in which to prosecute this case until his “criminal trial concerning this 3 same matter is complete.” (ECF No. 4 at 1; ECF No. 6 at 2–3). The Court may “take 4 notice of proceedings in other courts, both within and without the federal judicial system, 5 if those proceedings have a direct relation to matters at issue.” Bias v. Moynihan, 508 F.3d 6 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th 7 Cir. 2002)). The Court takes judicial notice of United States v. Combs, S.D. Cal. Criminal 8 Case No. 3:17-cr-03026-CAB-1, currently pending before Judge Bencivengo, in which a 9 criminal complaint filed on September 5, 2017 charges Plaintiff with one count of assault 10 on a federal officer in violation of 18 U.S.C. § 111 and one count of high speed flight from 11 an immigration checkpoint in violation of 18 U.S.C. § 758. A jury trial in United States v. 12 Combs, S.D. Cal. Criminal Case No. 3:17-cr-03026-CAB-1, is currently set for March 13 19, 2018. 14 I. Motion to Proceed IFP 15 All parties instituting any civil action, suit or proceeding in a district court of the 16 United States, except an application for writ of habeas corpus, must pay a filing fee of 17 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 18 prepay the entire fee only if he is granted leave to proceed in forma pauperis pursuant to 19 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 20 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is 21 granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or 22 “installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016), and regardless of whether 23 his action is ultimately dismissed, see 28 U.S.C. § 1915(b); Taylor v. Delatoore, 281 F.3d 24 844, 847 (9th Cir. 2002). 25 26 1 27 28 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-02381-WQH-BGS 1 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 2 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 3 6-month period immediately preceding the filing of the complaint.” 4 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 5 trust account statement, the Court assesses an initial payment of 20% of (a) the average 6 monthly deposits in the account for the past six months, or (b) the average monthly balance 7 in the account for the past six months, whichever is greater, unless the prisoner has no 8 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 9 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 10 month’s income, in any month in which his account exceeds $10, and forwards those 11 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 12 136 S. Ct. at 629. 28 U.S.C. 13 In support of his IFP Motion, Combs has submitted a copy of his Federal Bureau of 14 Prisons “Trulincs” Commissary and Trust Account Activity. See ECF No. 2 at 3–4; 28 15 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These statements 16 show that while Combs has had a total of $175 deposited to his account since September 17 12, 2017, he had an available balance of only $.44 at the time of filing. See ECF No. 2 at 18 3–4. Thus, the Court assesses Combs initial partial filing fee to be $5.83 pursuant to 28 19 U.S.C. § 1915(b)(1), but acknowledges he may be unable to pay that fee at this time. See 20 28 U.S.C. § 1915(b)(4) (“In no event shall a prisoner be prohibited from bringing a civil 21 action or appealing a civil action or criminal judgment for the reason that the prisoner has 22 no assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 23 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a 24 prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available 25 to him when payment is ordered.”). 26 Therefore, the Court GRANTS Combs’ Motion to Proceed IFP (ECF No. 2), 27 declines to exact the initial filing fee because his trust account statements indicate he may 28 have no means to pay it, and directs the Warden of the MCC or his designee to instead 3 3:17-cv-02381-WQH-BGS 1 collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward 2 them to the Clerk of the Court pursuant to the installment payment provisions set forth in 3 28 U.S.C. § 1915(b)(1). 4 II. Initial Screening 5 A. 6 Because Combs is a prisoner and is proceeding IFP, his complaint requires a 7 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 8 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 9 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 10 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 11 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 12 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 13 the targets of frivolous or malicious suits need not bear the expense of responding.’” 14 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 15 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). Standard of Review 16 “The standard for determining whether a plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 19 1108, 1112 (9th Cir. 2012). Federal Rule of Civil Procedure 12(b)(6) requires a complaint 20 to “contain sufficient factual matter, accepted as true, to state a claim to relief that is 21 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations 22 omitted). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 23 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 24 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 25 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 26 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 27 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 28 standard. Id. 4 3:17-cv-02381-WQH-BGS 1 B. 2 “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 3 secured by the Constitution and laws of the United States, and (2) that the deprivation was 4 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 5 F.3d 1128, 1138 (9th Cir. 2012) (emphasis added). Combs is a federal pretrial detainee 6 seeking to sue the CBP and two of its agents for allegedly violating his constitutional rights 7 during the course of his arrest. Compl. at 2–12. Combs fails to allege that any Defendant 8 acted under color of state law. Therefore, he may not proceed under § 1983. Tsao, 698 9 F.3d at 1138. 42 U.S.C. § 1983 10 C. 11 Because Combs is proceeding without counsel, however, the Court will liberally 12 construe the constitutional claims alleged to have arisen at the time of his arrest under 13 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 14 (1971). Bivens is the “federal analogue” to § 1983. Hartman v. Moore, 547 U.S. 250, 254, 15 255 n.2 (2006). In Bivens, the Supreme Court recognized an implied cause of action for 16 damages against federal officers for alleged violation of a citizen’s rights under the Fourth 17 Amendment. 403 U.S. at 397; Iqbal, 556 U.S. at 675. After Bivens, the Supreme Court 18 has recognized a similar cause of action implied against federal actors for alleged violations 19 of the Due Process Clause of the Fifth Amendment and the Cruel and Unusual Punishment 20 clause of the Eighth Amendment. See Correctional Services Corp. v. Malesko, 534 U.S. 21 61, 67–68 (2001). Bivens 22 In Ziglar v. Abbasi, the Supreme Court explained that 23 the Court has made clear that expanding the Bivens remedy is now a “disfavored” judicial activity. This is in accord with the Court’s observation that it has “consistently refused to extend Bivens to any new context or new category of defendants.” Indeed, the Court has refused to do so for the past 30 years. 24 25 26 27 28 137 S. Ct. 1843, 1857 (2017) (internal citations omitted). The Supreme Court stated, “The Court’s precedents now make clear that a Bivens remedy will not be available if there are 5 3:17-cv-02381-WQH-BGS 1 ‘special factors counseling hesitation in the absence of affirmative action by Congress.’” 2 Id. (quoting Carlson v. Green, 446 U.S. 1, 18 (1980)). The Supreme Court further 3 instructed that the district court must determine whether a particular case presents a new 4 Bivens context in addition to determining whether to proceed with a special factor analysis. 5 Id. at 1864. 6 1. Defendant CBP 7 As noted above, Combs seeks to sue two CBP agents as well as the CBP agency 8 itself. Compl. at 1–2. However, a Bivens claim may only be maintained against officials 9 acting under color of federal law in their individual capacities—neither the United States, 10 nor any of its agencies, is a proper defendant. FDIC v. Meyer, 510 U.S. 471, 486 (1994) 11 (federal agencies are not proper defendants in a Bivens action). Because CBP is a federal 12 agency and not an official, it may not be sued under Bivens. Accordingly, CBP must be 13 dismissed as a Defendant in this matter pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). 14 See Bucio v. U.S. Customs & Border Prot., No. CIV. 06-0917 BEN(JMA), 2007 WL 15 173838, at *2 (S.D. Cal. Jan. 9, 2007) (sua sponte dismissing Bivens action against CPB 16 for failing to state a claim per 28 U.S.C. § 1915(e)(2) and § 1915A(b)). 17 2. Defendants Ribac and Artiles 18 In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court concluded that a § 19 1983 claim which “necessarily implies the invalidity” of an underlying criminal judgment 20 is not cognizable until the criminal judgment has been reversed, set aside, expunged, 21 invalidated, or called into question on federal habeas review. Id. at 486–87; see also Martin 22 v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (applying Heck’s favorable termination rule to 23 Bivens actions). Combs contends that Ribac and Artiles violated his Fourth, Fifth and 24 Fourteenth Amendment rights on September 2, 2017, by “racially profiling,” and 25 prolonging his detention after he consented to a search of his vehicle, and then 26 “aggressively” “div[ing] through the driver[’]s window” of his car while “striking” and 27 “punching” him in the head. Compl. at 3–6, 8–9. 28 against Defendants Ribac and Artiles could be barred by Heck to the extent they may Combs’ Fourth Amendment claims 6 3:17-cv-02381-WQH-BGS 1 “necessarily imply the invalidity” of his criminal judgment should he ultimately be 2 convicted for the crimes for which he is currently awaiting trial before in U.S. v. Combs, 3 S. D. Cal. Criminal Case No. 3:17-cr-03026-CAB-1. 4 However, Heck is only implicated when there exists “‘a conviction or sentence that 5 has not been . . . invalidated,’ that is to say, an ‘outstanding criminal judgment.’” Wallace 6 v. Kato, 549 U.S. 384, 393 (2007) (quoting Heck, 512 U.S. at 486–87). In Wallace, the 7 Supreme Court specifically rejected the contention that “an action which would impugn an 8 anticipated future conviction cannot be brought until that conviction occurs and is set 9 aside.” Id. at 393 (italics in original). Thus, if a plaintiff raises Fourth Amendment claims 10 in a § 1983 or Bivens action while he remains subject to criminal prosecution, but before 11 he is convicted or exonerated, as Combs has here, or if he “files any other claim related to 12 rulings that will likely be made in a pending or anticipated criminal trial, it is within the 13 power of the district court, and in accord with common practice, to stay the civil action 14 until the criminal case or the likelihood of a criminal case is ended.”2 Wallace, 549 U.S. 15 at 393–94 (citing Heck, 512 U.S. at 487–88, n.8). “If the plaintiff is then convicted, and if 16 the stayed civil suit would impugn that conviction, Heck requires dismissal; otherwise, the 17 case may proceed.” Id. 18 III. Conclusion and Order 19 Based on the foregoing, the Court: 20 1. GRANTS Combs’ Motion to Proceed IFP (ECF No. 2). 21 2. DIRECTS the Warden of the MCC, or his designee, to collect from Combs’ 22 trust account the $350 filing fee owed in this case by garnishing monthly payments from 23 his account in an amount equal to twenty percent (20%) of the preceding month’s income 24 and forwarding those payments to the Clerk of the Court each time the amount in Combs’ 25 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE 26 27 Wallace holds that a stay of the civil action is proper, because under common law, a prisoner’s false arrest claim accrues “when legal process was initiated against him.” 549 U.S. at 390. 2 28 7 3:17-cv-02381-WQH-BGS 1 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 2 ACTION. 3 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Wayne 4 Smith, Warden, Metropolitan Correctional Center, 880 Union Street, San Diego, 5 CA 92101. 6 4. DISMISSES Defendant United States Customs and Border Protection Agency 7 and DIRECTS the Clerk of the Court to terminate the United States Customs and Border 8 Protection Agency as a party to this action based on Combs’ failure to state a claim upon 9 which relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). 10 5. GRANTS Combs’ Motion for Extension of Time (ECF No. 6) and DIRECTS 11 the Clerk of the Court to STAY the remainder of the proceedings in this civil action pending 12 resolution of Combs’ criminal proceedings in United States v. Combs, S.D. Cal. Civil 13 Criminal Case No. 3:17-cr-03026-CAB-1. 14 6. ORDERS Combs to file a Motion requesting the stay in these proceedings be 15 lifted, together with a Motion requesting U.S. Marshal service upon Defendants Ribac and 16 Artiles pursuant to Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915(d), within 30 days of the 17 conclusion of his criminal case. 18 Dated: March 7, 2018 19 20 21 22 23 24 25 26 27 28 8 3:17-cv-02381-WQH-BGS

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