Cartee v. Imperial County Sheriff Department

Filing 8

ORDER: 1) Granting Motion to Proceed In Forma Pauperis [ECF No. 5 ] and 2) Dismissing Complaint for Failing to State a Claim Pursuant to 28 U.S.C. 1915(e)(2) and 1915A(b). Signed by Judge Cathy Ann Bencivengo on 5/24/2018. (cc: Corrections Chief Deputy) (All non-registered users served via U.S. Mail Service)(jjg)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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TREVOR DANIEL CARTEE,
Booking No. 17-7267,

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ORDER:

Plaintiff,

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Case No.: 3:18-cv-00327-CAB-AGS

vs.

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 5]

IMPERIAL COUNTY SHERIFF’S
DEPARTMENT,
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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TREVOR DANIEL CARTEE (“Plaintiff”), currently detained at the Imperial

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County Jail (“ICJ”), and proceeding pro se, has filed a single-paged civil rights complaint

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pursuant to 42 U.S.C. § 1983, which while not altogether clear, appears to allege that he

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was assaulted by unidentified Imperial County Sheriff’s Department officials on an

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unspecified occasion and “refused medical attention.” See Compl., ECF No. 1 at 1.

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Plaintiff has also filed two supplemental documents, which the Court has accepted
for filing in light of Plaintiff’s pro se status, and despite violation of S.D. Cal. CivLR
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3:18-cv-00327-CAB-AGS

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83.9, which prohibits ex parte communications. See ECF Nos. 3, 7. In the first, Plaintiff

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claims his public defender is ineffective, his mother is suffering from lung cancer, the

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Judges in Imperial County are “not helping or doing their job properly,” investigating

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agents have “fabricated” reports in his case, and he is “innocent and a victim of police

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brutality.” See ECF No. 3 at 1-2.
In the second, Plaintiff continues to claim he has been “wrongfully incarcerated” at

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the ICJ since November 30, 2017, and he explicitly seeks to have his pending criminal

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proceedings “dropped and dismissed” because his “civil rights are being violated over

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and over.” See ECF No. 7 at 1-3. Specifically, Plaintiff claims a Narcotic Task Force

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Gang Unit Agent “tried to kill” him and committed perjury “during live court,” id. at 1-4,

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an El Centro Police Officer “sexually harassed” his girlfriend, id. at 2, and that he has

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been “targeted by … local law officials” ever since a member of the Holtville Sheriff’s

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Department beat and “tased” him during a previous arrest in June 2014. Id. at 4-6.
He requests “release from [his] illegal detention,” an “expungement of records,”

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and that “something [be] done about all this injustice here in Imperial County.” Id. at 6, 7.

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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). Therefore, on March 13, 2018, the Court dismissed his case, but

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granted Plaintiff leave to either pay the full filing fee, or file a Motion to Proceed In

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Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 4 (citing Andrews

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v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007) (a civil action may proceed despite a

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party’s failure to pay only if the party is granted leave to proceed IFP pursuant to 28

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U.S.C. § 1915(a)).

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Plaintiff was also cautioned that should he elect to proceed IFP, he would “remain

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obligated to pay the entire filing fee in increments” pursuant to 28 U.S.C. § 1915(b)(1),

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because he is a prisoner and regardless of whether his Complaint was dismissed sua

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sponte pursuant to 28 U.S.C. § 1915(e)(2) and/or U.S.C. § 1915A(b). See id., ECF No. 4

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at 2-3 & n.1.
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On March 29, 2018, Plaintiff elected to proceed by filing an IFP Motion. See ECF

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No. 5.

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II.

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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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 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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In support of his IFP Motion, Plaintiff has submitted a Prison Certificate issued by

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an ICJ Correctional Officer attesting to his trust account activity and balances for the 6-

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month period preceding the filing of his Complaint. See ECF No. 5 at 2; 28 U.S.C.

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§ 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. This certificate shows

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that Plaintiff has carried a $0.85 average monthly balance, has had an average $0.85

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monthly deposit to his account, and an available balance of $0.85 on the books at the time

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of filing. See ECF No. 5 at 2. Based on this accounting, the Court GRANTS Plaintiff’s

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Motion to Proceed IFP (ECF No. 5), and assess an initial partial filing of $0.17 pursuant

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to 28 U.S.C. § 1915(b)(1).

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However, the Court will direct the Corrections Chief Deputy of the ICJ, or his

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designee, to collect this initial fee only if sufficient funds are available in Plaintiff’s

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account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that

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“[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a

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

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means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor,

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281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing

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

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funds available to him when payment is ordered.”).

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The remaining balance of the $350 total fee owed in this case must be collected

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and forwarded to the Clerk of the Court by the ICJ, and any subsequent “agency having

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custody of the prisoner,” pursuant to 28 U.S.C. § 1915(b)(1) and (2).

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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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As noted above, while Plaintiff’s initial Complaint invokes 42 U.S.C. § 1983 as the

Plaintiff’s Allegations

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jurisdictional basis for his suit, see Compl., ECF No. 1 at 1, neither his initial Complaint

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nor his subsequent pleadings set forth any “short and plain statement of the claim

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showing that [he] is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see also ECF Nos. 3, 7.

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As best the Court can decipher, Plaintiff appears to be challenging the

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constitutional validity of his arrest and ongoing state criminal proceedings in Imperial

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County. Indeed, the relief he seeks is “release from illegal detention.” See ECF No. 7 at

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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, Plaintiff has named only the “Imperial County Sheriff’s Department” as a

Discussion

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Defendant. However, departments of municipal entities are not “persons” subject to suit

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under § 1983; therefore, a local law enforcement department (like the Imperial County

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Sheriff’s Department) is not a proper party. See Vance v. County of Santa Clara, 928 F.

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Supp. 993, 996 (N.D. Cal. 1996) (“Naming a municipal department as a defendant is not

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an appropriate means of pleading a § 1983 action against a municipality.”) (citation

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omitted); Powell v. Cook County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (“Section

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1983 imposes liability on any ‘person’ who violates someone’s constitutional rights

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‘under color of law.’ Cook County Jail is not a ‘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 Imperial, 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 any § 1983 civil rights 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 Imperial

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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). The County of Imperial may not be held

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

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its employees. See Board of Cty. Comm’rs. v. Brown, 520 U.S. 397, 403 (1997); Monell,

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436 U.S. at 691 (“[A] a municipality cannot be held liable solely because it employs a

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

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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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Finally, Plaintiff may not use the Civil Rights Act, 42 U.S.C. § 1983, as a vehicle

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by which to enjoin ongoing state criminal proceedings. Federal courts may not interfere

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with ongoing state criminal, quasi-criminal enforcement actions, or in civil “cases

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involving a state’s interest in enforcing the orders and judgments of its courts,” absent

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extraordinary circumstances. See Younger v. Harris, 401 U.S. 37, 43-54 (1971); Sprint

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Communications, Inc. v. Jacobs, __ U.S. __, 134 S. Ct. 584, 591 (2013); Cook v.

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Harding, 879 F.3d 1035, 1039 (9th Cir. 2018), pet. for cert. filed, (U.S. April 30, 2018)

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(No. 17-1487); ReadyLink Healthcare, Inc. v. State Compensation Ins. Fund, 754 F.3d

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754, 759 (9th Cir. 2014).

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A court may consider sua sponte whether Younger abstention should be invoked at

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any point in the litigation. H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir.

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2000); Augustin v. Cnty. of Alameda, 234 Fed. Appx. 521 (9th Cir. 2007)); Salmons v.

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Oregon, No. 1:17-CV-01104-MC, 2017 WL 3401270, at *5 (D. Or. Aug. 8, 2017).

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Abstention is proper regardless of whether the applicant seeks declaratory relief,

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injunctive relief, or damages. See Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986)

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(“When a state criminal prosecution has begun, the Younger rule directly bars a

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declaratory judgment action” as well as a section 1983 action for declaratory relief and

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damages “where such an action would have a substantially disruptive effect upon

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ongoing state criminal proceedings.”); Gilbertson v. Albright, 381 F.3d 965, 984 (9th Cir.

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2004) (en banc) (Younger abstention applies to actions for damages as it does to

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declaratory and injunctive relief).

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Here, Plaintiff alleges his Imperial County criminal proceedings commenced as the

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result of his arrest on November 20, 2017, and were still ongoing at the time he filed his

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Complaint and subsequent pleadings. See Compl., ECF No. 1 at 1; ECF No. 3 at 1; ECF

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No. 7 at 1. State proceedings are deemed ongoing until appellate review is completed.

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See Gilbertson, 381 F.3d at 969 n.4 (citation omitted); Huffman v. Pursue, 420 U.S. 592,

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608 (1975) (“[A] necessary concomitant of Younger is that a party ... must exhaust his

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state appellate remedies before seeking relief in the District Court.”).
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Moreover, there is no question that whatever the specific nature of Plaintiff’s

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current criminal charges, they implicate important state interests, and “involve [the]

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state’s interest in enforcing orders and judgments of its courts.” Sprint, 134 S. Ct. 593-94;

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ReadyLink, 754 F.3d at 759. Specifically, Plaintiff requests that all his Imperial County

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“criminal charges … be dismissed” based on “outrageous police conduct,” and that he be

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“release[d] from illegal detention.” See ECF No. 7 at 6. But these are the type of claims

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and relief the state courts afford an adequate opportunity to raise on direct appeal, or via a

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writ of mandate in the state’s courts. See, e.g., San Jose Silicon Valley Chamber of

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Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1095 (9th Cir.

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2008); Clark v. Lassen Cnty Justice Court, 967 F.2d 585 at *1 (9th Cir. 1992) (sua sponte

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dismissing federal civil action challenging state court’s bail determinations as frivolous

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pursuant to 28 U.S.C. § 1915(d) [currently codified at 28 U.S.C. § 1915(e)(2)(B)(i)] as

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barred by Younger).

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Because “only in the most unusual circumstances is a defendant entitled to have

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federal interposition by way of injunction ... until after the jury comes in, judgment has

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been appealed from and the case concluded in the state courts,” Drury v. Cox, 457 F.2d

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764, 764-65 (9th Cir. 1972), Younger abstention is required here. ReadyLink, 754 F.3d at

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759; see also Rivera v. Gore, No. 3:17-CV-02225-WQH-NLS, 2018 WL 1001252, at *6

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(S.D. Cal. Feb. 21, 2018) (sua sponte dismissing pretrial detainee’s § 1983 claims

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requesting the “dismissal” of an ongoing criminal proceeding and the “reduction of the

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bail” on Younger abstention grounds).
Thus, for all these reasons, Plaintiff’s case must be dismissed sua sponte based on

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his failure to state a claim upon which § 1983 relief may be granted. See 28 U.S.C.

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§ 1915(e)(2)(B)(ii); § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Wilhelm, 680 F.3d at

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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 Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

(ECF No. 5).
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DIRECTS the Corrections Chief Deputy of ICJ, or his designee, and any

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“agency having custody” of Plaintiff to collect from his trust account the $0.17 initial

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partial filing fee assessed by the Order, and to garnish the remainder of the $350 filing

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fee owed in this case in monthly payments from his account in an amount equal to twenty

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percent (20%) of the preceding month’s income and forwarding those payments to the

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Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28

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U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE

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NAME AND NUMBER ASSIGNED TO THIS ACTION.

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3.

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

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Cortez, Corrections Chief Deputy, Imperial County Sheriff’s Office, P.O. Box 1040, El

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Centro, California 92244.

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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)(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
will enter a final Order dismissing this civil action based both on his failure to state a
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claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and

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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.
Dated: May 24, 2018

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