Schmidt v. Mize et al

Filing 4

ORDER granting Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b) (2). Court dismisses Plaintiff's Complaint for failing to state a claim upon which relief can be granted and for seeking damages from a defendant who is immune pursuant to 28 USC 1915(e)(2)(B)(i) and 1915A(b)(1),(2). Court grants Plaintiff fort y-five (45) days leave from the date of this Order to file an Amended Complaint. Signed by Judge Cynthia Bashant on 5/29/2018. (Order electronically transmitted to Secretary of CDCR) (All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TREVOR NEIL SCHMIDT,

Case No. 18-cv-00725-BAS-PCL
Plaintiff,

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v.

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

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ORDER:

RANDY MIZE, et al.,
Defendants.

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(2) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM AND
FOR SEEKING DAMAGES FROM
IMMUNE DEFENDANT

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Plaintiff Trevor Neil Schmidt, proceeding pro se and currently incarcerated at North

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Kern State Prison (“NKSP”) in Delano, California, initiated this civil rights action pursuant

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to 42 U.S.C. § 1983. At the time of filing this case, Plaintiff was still held in pretrial custody

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at the San Diego County Jail (“SDCJ”), on April 12, 2018. (See ECF No. 1.)1

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Plaintiff filed a notice of change of address to NKSP one week later on April 18, 2018.
(ECF No. 3.)
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Plaintiff did not prepay the $400.00 civil filing fee required by 28 U.S.C. § 1914(a)

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at the time of filing, but instead filed a Motion to Proceed In Forma Pauperis (“IFP”). (See

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ECF No. 2.)

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I.

Motion to Proceed IFP

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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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$400.00.2 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, if the Plaintiff is a prisoner at the

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time of filing, he remains obligated to pay the entire filing fee in “increments” or

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“installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v.

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Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), even if he is granted leave to proceed IFP

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

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(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). From the certified

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trust account statement, the Court assesses an initial payment of twenty percent of (a) the

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average 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 has

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In addition to the $350.00 statutory fee, civil litigants must pay an additional
administrative fee of $50.00. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of
Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50.00
administrative fee does not apply to persons granted leave to proceed IFP. Id.
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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 twenty percent of

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the preceding month’s income, in any month in which his account exceeds $10.00, and

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forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. §

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1915(b)(2); Bruce, 136 S. Ct. at 629.

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In support of his IFP Motion, Plaintiff has submitted copies of a San Diego Sheriff’s

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Department Inmate Account Activity statement showing his available balance and trust

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account activity from November 2016 through March 2018. (See ECF No. 2 at 6-8); 28

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U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2; Andrews, 398 F.3d at 1119. This statement

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shows while Plaintiff had a $68.17 balance to his credit in October 2017, he had no money

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deposited into his account over the next six-month period preceding the filing of his

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Complaint, and had an available balance of zero at the time of filing. (See ECF No. 2 at 7.)

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Based on this accounting, the Court GRANTS Plaintiff’s Motion to Proceed IFP

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(ECF No. 2), and will assess no initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1).

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

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

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that 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) acts

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

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

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The Court will further direct the Secretary of the California Department of

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Corrections and Rehabilitation (“CDCR”), into whose custody he has since been

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transferred (ECF No. 3), or his designee, to instead collect the entire $350.00 balance of

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the filing fee required by 28 U.S.C. § 1914 and forward installments payments to the Clerk

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of the Court pursuant to 28 U.S.C. § 1915(b)(1).

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II.

Screening Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A

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A.

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

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answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes,

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the Court must review and sua sponte dismiss an IFP complaint and any complaint filed

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by a prisoner seeking redress from a governmental entity or officer or employee of a

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governmental entity that is frivolous, malicious, fails to state a claim, or seeks damages

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from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.

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2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002,

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1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to

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ensure that the targets of frivolous or malicious suits need not bear the expense of

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responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler

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v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

Standard of Review

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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 F.3d

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1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

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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 “contain sufficient factual matter, accepted

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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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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 relief

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

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

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the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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Plaintiff’s Allegations

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B.

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Plaintiff contends Defendants San Diego County Public Defender Randy Mize,

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Deputy Public Defender Saba Sheoboni, Superior Court Judge Margie G. Woods, and

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Sheriff William D. Gore, together with Liberty HealthCare Corp. (collectively,

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“Defendants”) violated his right to due process and to be free of cruel and unusual

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punishment in February, April, and May 2017 during criminal trial proceedings in San

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Diego Superior Court Criminal Case No. SCD269629. (See ECF No. 1 at 1-2, 3-6.)

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Specifically, Plaintiff claims Sheoboni requested a competency hearing over

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Plaintiff’s objection, and Judge Woods wrongfully considered the report of a doctor whom

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Plaintiff was “forced” to meet under duress, committed Plaintiff to a state hospital for three

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years, and “at some point” outside Plaintiff’s presence, ordered “involuntary medication”

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without a second opinion. (Id. at 4.)

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Finally, Plaintiff claims several unidentified SDCJ Sheriff’s Deputies handcuffed

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and held him down on May 26, 2017 in order to inject him with Haldol “against [his] will,”

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and later “refused to provide [him] treatment” when he was ill. Id. at 5.

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Plaintiff seeks $7,400,000 in general and punitive damages and demands a jury trial.
(Id. at 7.)

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C.

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“Section 1983 creates a private right of action against individuals who, acting under

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color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,

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263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive

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rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

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Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations

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omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right

42 U.S.C. § 1983

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secured by the Constitution and laws of the United States, and (2) that the deprivation was

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committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698

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F.3d 1128, 1138 (9th Cir. 2012).

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D.

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First, to the extent Plaintiff names San Diego County Public Defenders Randy Mize

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and Saba Sheoboni as Defendants, see ECF No. 1 at 1-2, he fails to state a claim upon

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which section 1983 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C.

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§ 1915A(b)(1). “[A] public defender does not act under color of state law when performing

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a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Polk

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County v. Dodson, 454 U.S. 312, 325 (1981); Garnier v. Clarke, 332 Fed. App’x 416 (9th

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Cir. 2009) (affirming district court’s sua sponte dismissal of prisoner’s section 1983 claims

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against appointed counsel).

Public Defenders Mize & Sheoboni

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E.

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Next, Plaintiff’s Complaint must be dismissed insofar as he seeks monetary damages

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from San Diego Superior Court Judge Margie G. Woods, who is alleged to have presided

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over his criminal case and competency proceedings in San Diego Superior Court Criminal

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Case No. SCD269629, and who is absolutely immune. See 28 U.S.C. § 1915(e)(2)(B)(iii);

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Chavez v. Robinson, 817 F.3d 1162, 1167-68 (9th Cir. 2016) (noting § 1915(e)(2)(B)(iii)

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requires the court to dismiss an action “at any time” if it “seeks monetary relief from a

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defendant who is immune from such relief”).

Judge Woods

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Judges are absolutely immune from damage liability for acts which are judicial in

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nature. See Forrester v. White, 484 U.S. 219, 227-229 (1988); see also Stump v. Sparkman,

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435 U.S. 349, 355-57 (1978); Pierson v. Ray, 386 U.S. 547, 553-55 (1967). Judicial

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immunity applies to actions brought under 42 U.S.C. § 1983 for acts committed within the

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scope of judicial duties, “even when such acts are in excess of their jurisdiction, and are

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alleged to have been done maliciously or corruptly.” Stump, 435 U.S. at 356. “[A] judge
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will not be deprived of immunity because the action [s]he took was in error, was done

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maliciously, or was in excess of [her] authority; rather, [s]he will be subject to liability only

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when [s]he has acted in the clear absence of all jurisdiction.” Id. at 356-37; see also

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Forrester, 484 U.S. at 227 (stating a judicial act “does not become less judicial by virtue

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of an allegation of malice or corruption of motive”); Mireless v. Waco, 502 U.S. 9, 12

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(1991).

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Here, Plaintiff claims Judge Woods violated his rights to due process rights by

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considering a medical report over his objection during an April 3, 2017 competency

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hearing, after which she “pushed forward with a commitment to the state hospital,” and “at

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some point” authorized his “involuntary medication.” (ECF No. 1 at 4.) Because all of

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these decisions were made in her capacity as a judge presiding over Plaintiff’s case, Judge

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Woods must also be dismissed as absolutely immune. See 28 U.S.C. § 1915(e)(2)(B)(iii),

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§ 1915A(b)(2); Brand v. Schubert, No. 2:16-CV-1811-MCE EFB P, 2017 WL 531721, at

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*2 (E.D. Cal. Feb. 7, 2017) (dismissing sua sponte section 1983 claims against judge

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presiding over criminal and mental competency proceedings pursuant to 28 U.S.C. §

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1915A).

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F.

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Plaintiff also names “Liberty Healthcare Corp.” as a Defendant, and alleges it works

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as a “state contractor . . . under the California Director of State Hospitals.” (See ECF No.

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1 at 1, 2.) However, Plaintiff’s Complaint includes no further “factual content that allows

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the court to draw the reasonable inference that [this] defendant is liable for the misconduct

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alleged.” Iqbal, 556 U.S. at 678. “Although a pro se litigant . . . may be entitled to great

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leeway when the court construes his pleadings, those pleadings nonetheless must meet

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some minimum threshold in providing a defendant with notice of what it is that it allegedly

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did wrong.” Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 199 (9th Cir. 1995).

Liberty HealthCare Corp.

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And while a section 1983 action may be alleged against a private actor under certain

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circumstances, Plaintiff fails to offer any factual basis to show what Liberty Healthcare
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allegedly did or how it acted “under color of state law.” See Tsao, 698 F.3d at 1138,

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Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (“That a private entity performs a

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function which serves the public does not make its acts state action.”); Price v. State of

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Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) (“[P]rivate parties [do] not generally act[]

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under color of state law. . . .”).

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G.

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Finally, Plaintiff also names San Diego County Sheriff William D. Gore as a

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Defendant, see ECF No. 1 at 1, 2, but he again fails to include any “factual content” as to

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the Sheriff’s acts or omissions that might “allow[] the court to draw the reasonable

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inference that [the Sheriff] is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678;

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Brazil, 66 F.3d at 199. Plaintiff does allege several Sheriff’s Department deputies “on the

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sixth floor of the San Diego Central Jail,” forcibly drugged him on May 27, 2017, see ECF

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No. 1 at 5, but he does not identify or name those persons as parties. “There is no respondeat

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superior liability under 42 U.S.C. § 1983.” Palmer v. Sanderson, 9 F.3d 1433, 1437-38

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(9th Cir. 1993). “Absent vicarious liability, each Government official, his or her title

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notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 U.S. at 677.

Sheriff William D. Gore

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

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as to any of the named Defendants, further seeks damages from one, Judge Woods, who is

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absolutely immune, and must be dismissed sua sponte pursuant to 28 U.S.C.

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§ 1915(e)(2)(B)(ii), (iii) and 28 U.S.C. § 1915A(b)(1), (2). See Chavez, 817 F.3d at 1167-

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68 (noting that § 1915(e)(2)(B)(iii) “applies to absolute immunity” and § 1915(e)(2)(B)(ii)

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“authorizes a court to dismiss a complaint that fails to state a claim sua sponte before

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defendants are served”) (citing Lopez, 203 F.3d at 1130).

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III.

Conclusion and Orders

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

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Plaintiff’s trust account the $350.00 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 $10.00 pursuant to 28 U.S.C. § 1915(b)(2). All payments

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shall be clearly identified by the name and number assigned to this action;
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DIRECTS the Clerk of the Court to serve a copy of this Order on Scott

Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001;
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DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

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relief can granted and for seeking damages from a defendant who is immune pursuant to

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28 U.S.C. §§ 1915(e)(2)(B)(i), (ii) and 1915A(b)(1), (2); and

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5.

GRANTS Plaintiff forty-five (45) days leave from the date of this Order in

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which to file an Amended Complaint that cures the deficiencies of pleading described in

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this Order. Plaintiff’s Amended Complaint must be complete by itself without reference to

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his original pleading. Defendants not named and any claim not re-alleged in his Amended

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Complaint will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios,

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

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

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2012) (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 amend within 45 days, the Court will enter a final Order

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dismissing this civil action based both on Plaintiff’s failure to state a claim upon which

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relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and his failure

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to prosecute in compliance with a court order requiring amendment. See Lira v. Herrera,
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427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the

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opportunity to fix his complaint, a district court may convert the dismissal of the complaint

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into dismissal of the entire action.”).

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IT IS SO ORDERED.

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DATED: May 29, 2018

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