Childress, Jr. v. Palmer

Filing 3

ORDER: 1) Granting Motion to Proceed In Forma Pauperis [ECF No. 2 ]; and 3) Issuing Stay of Civil Action. Signed by Judge Cathy Ann Bencivengo on 4/26/2018. (cc: Warden) (All non-registered users served via U.S. Mail Service)(jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT LEE CHILDRESS, JR.,
Reg. No. 23581-039,

Case No.: 3:18-cv-00514-CAB-BLM
ORDER:

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Plaintiff,

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1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2]; AND

vs.

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KRAIG PALMER,

3) ISSUING STAY OF CIVIL
ACTION

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Defendant.

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ROBERT LEE CHILDRESS, Jr. (“Plaintiff”), a federal detainee currently housed

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at the Metropolitan Correctional Center (“MCC”) in San Diego, California, and

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proceeding pro se, has filed a civil rights complaint pursuant to Bivens v. Six Unknown

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Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (ECF No. 1).

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Plaintiff claims Defendant Kraig Palmer, a Federal Bureau of Investigation Agent,

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violated his Fourth and Fifth Amendment rights by conducting “an illegal search and

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seizure.” Compl. at 3-4. Plaintiff seeks injunctive relief in the form of the prevention of
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disposing of the property seized and a return of the property seized to him, along with

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monetary damages. See id. at 8.

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Plaintiff has not prepaid the $400 filing fee required by 28 U.S.C. § 1914(a) to

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commence a civil action; instead, he has filed a Motion to Proceed IFP (ECF No. 2).

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Plaintiff also has ongoing criminal proceedings which appear to involve the same issues

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raised in this matter.1

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I.

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

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

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$400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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

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

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

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

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1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed.

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See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.

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2002).

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The Court may “‘take notice of proceedings in other courts, both within and without the
federal judicial system, if those proceedings have a direct relation to matters at issue.’”
Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc.,
285 F.3d 801, 803 n.2 (9th Cir. 2002)). Therefore, the Court takes judicial notice of United
States v. Childress, S.D. Cal. Criminal Case No. 3:16-cr-02556-GPC, currently pending
before Judge Curiel.

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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). From the certified

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

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

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balance in the account for the past six months, whichever is greater, unless the prisoner

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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

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

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

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

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Bruce, 136 S. Ct. at 629.

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In support of his IFP Motion, Plaintiff has submitted a copy of his Federal Bureau

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of Prisons Trust Account Activity. See ECF No. 2 at 5; 28 U.S.C. § 1915(a)(2); S.D. CAL.

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CIVLR 3.2; Andrews, 398 F.3d at 1119. This statement shows that while Plaintiff has had

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a total of $217.82 deposited to his account since September 27, 2017, he had an available

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balance of only $0.44 at the time of filing. See ECF No. 2 at 3-4. Thus, the Court assesses

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Plaintiff’s initial partial filing fee to be $6.20 pursuant to 28 U.S.C. § 1915(b)(1), but

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acknowledges he may be unable to pay even that small initial fee at this time. See 28

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U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from

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bringing a civil action or appealing a civil action or criminal judgment for the reason that

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the prisoner has no assets and no means by which to pay the initial partial filing fee.”);

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Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4)

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acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a

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“failure to pay . . . due to the lack of funds available to him when payment is ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2),

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declines to exact the initial filing fee because his trust account statement indicates he may

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have “no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Warden of the MCC
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or his designee, to instead collect the entire $350 balance of the filing fees required by 28

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

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

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II.

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 has brought his claims pursuant to Bivens v. Six Unknown Named Agents

Bivens

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of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Bivens is the “federal

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analogue” to § 1983. Hartman v. Moore, 547 U.S. 250, 254, 255 n.2 (2006); Iqbal, 556

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U.S. at 675-76.

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In Bivens, the Supreme Court recognized an implied cause of action for damages

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against federal officers for alleged violation of a citizen’s rights under the Fourth

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Amendment. 403 U.S. at 397; Iqbal, 556 U.S. at 675. After Bivens, the Supreme Court

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has recognized a similar cause of action implied against federal actors for alleged

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violations of the Due Process Clause of the Fifth Amendment and the Cruel and Unusual

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Punishment clause of the Eighth Amendment. See Correctional Services Corp. v.

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Malesko, 534 U.S. 61, 67-68 (2001); see also Iqbal, 556 U.S. at 675 (noting Supreme

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Court’s refusal to “extend Bivens to a claim sounding in the First Amendment.”) (citing

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Bush v. Lucas, 462 U.S. 367 (1983)).

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C.

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Plaintiff may bring a Bivens action against FBI Agent Palmer because he has

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alleged facts sufficient to plausibly show that this “Government-official defendant,

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through the official’s own individual actions, has violated the Constitution.” Iqbal, 556

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U.S. at 676; see also Perez v. United States, 103 F. Supp. 3d 1180, 1211 (S.D. Cal. 2015)

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(noting application of Fourth Amendment’s reasonableness standards to Bivens action).

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Specifically, Plaintiff claims that Defendant Palmer violated his Fourth and Fifth

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Amendment rights by searching and seizing property without a warrant. (See Compl. at

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3-4.)

Defendant Palmer

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However, in Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court

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concluded that a § 1983 claim which “necessarily implies the invalidity” of an underlying

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criminal judgment is not cognizable until the criminal judgment has been reversed, set

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aside, expunged, invalidated, or called into question on federal habeas review. Id. at 486-

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87; see also Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (applying Heck’s favorable

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termination rule to Bivens actions). Here, Plaintiff’s Fourth Amendment claims against

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Defendant Palmer could be barred by Heck to the extent they may “necessarily imply the

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invalidity” of his criminal judgment—should he ultimately be convicted for the crimes

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for which he is currently awaiting trial before Judge Curiel in U.S. v. Childress, S. D. Cal.

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Criminal Case No. 3:16-cv-02556-GPC.
However, Heck only comes into play when there exists “‘a conviction or sentence

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that has not been ... invalidated,’ that is to say, an ‘outstanding criminal judgment.’”

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Wallace v. Kato, 549 U.S. 384, 393 (2007) (quoting Heck, 512 U.S. at 486-87). In

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Wallace, the Supreme Court specifically rejected the contention that “an action which

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would impugn an anticipated future conviction cannot be brought until that conviction

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occurs and is set aside.” Id. at 393 (italics in original).

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Thus, if a Plaintiff raises Fourth Amendment claims in a § 1983 or Bivens action

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while he remains subject to criminal prosecution, but before he is convicted or

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exonerated, as Plaintiff has here, or if he “files any other claim related to rulings that will

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likely be made in a pending or anticipated criminal trial, it is within the power of the

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district court, and in accord with common practice, to stay the civil action until the

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criminal case or the likelihood of a criminal case is ended.” Wallace, 549 U.S. at 393-94

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(citing Heck, 512 U.S. at 487-88, n.8).

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“If the plaintiff is then convicted, and if the stayed civil suit would impugn that

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conviction, Heck requires dismissal; otherwise, the case may proceed.” Id.; see also

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Fourstar v. Clark, No. CV160126GFDLCTJC, 2017 WL 892330, at *2 (D. Mont. Mar. 6,

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2017) (staying Bivens action while Plaintiff’s federal criminal trial remained pending

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pursuant to Wallace and Heck); Foster v. United States, No. CV094067GHKVBKX,

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2009 WL 10675790, at *3 (C.D. Cal. July 20, 2009) (same).

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III.

Conclusion and Order

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Based on the foregoing, 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. 2).
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DIRECTS the Warden of the MCC, 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 Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

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PAYMENTS SHALL 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 Warden,

Metropolitan Correctional Center, 880 Union Street, San Diego, CA 92101.
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DIRECTS the Clerk of the Court to STAY these proceedings in this civil

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action pending resolution of Plaintiff’s criminal proceedings in U.S. v. Childress, S. D.

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Cal. Criminal Case No. 3:16-cv-02556-GPC.

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ORDERS Plaintiff to file a Motion requesting the stay in these proceedings

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be lifted, together with a Motion requesting U.S. Marshal service upon Defendant Palmer

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pursuant to Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915(d), within 30 days of the

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conclusion of his criminal case.

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IT IS SO ORDERED.
Dated: April 26, 2018

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