Trammell v. Gore et al

Filing 3

ORDER (1) Granting 2 Motion to Proceed in Forma Pauperis Pursuant to 28 U.S.C. § 1915(a); and Dismissing Complaint for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Watch Commander for the SDCJ, or their design ee, 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 a nd 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). The Court dismisses Plaintiff's Complaint for failing to state a claim upon which § 1983 relief can gr anted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A; and grants Plaintiff 45 days leave to file an Amended Complaint which cures all the deficiencies of pleading described in this Order. The Clerk of Court is directed to mail Plaintiff a court approved form civil rights complaint. Signed by Judge Gonzalo P. Curiel on 6/12/2018. (All non-registered users served via U.S. Mail Service)(copy mailed to Watch Commander, prisoner 1983 Amended Complaint form mailed to Plaintiff)(rmc)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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BRANDON M. TRAMMELL,
Booking No. 17163702,

ORDER:

Plaintiff,

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Case No.: 3:18-cv-01168-GPC-KSC

vs.

(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
PURSUANT TO 28 U.S.C. § 1915(a)
[Doc. No. 2]; AND

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SHERIFF WILLIAM D. GORE; GBDF
Faculty 8,

(2) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM
PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)(ii)

Defendants.

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Brandon M. Trammell (“Plaintiff”), currently housed at the San Diego Central Jail

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(“SDCJ”) located in San Diego, California, and proceeding pro se, has filed a civil

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complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1 at 1.

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Plaintiff did not prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the

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time of filing; instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2).

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I.

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Plaintiff’s IFP Motion
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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$400.1 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, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185

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(9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28

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U.S.C. § 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). 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

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having 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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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.
Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed
IFP. Id.
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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 a certified copy of his trust

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account statement, as well as a prison certificate, verified by an accounting officer,

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pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. See Doc. No. 2 at 4-7;

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Andrews, 398 F.3d at 1119. These statements shows that while Plaintiff had an average

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monthly deposit of $72.00 and an average monthly balance of $40.00 in his trust account

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during the 6-month period preceding the filing of his Complaint, he only had an available

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balance of $0.14 at the time of filing. Therefore, the Court assesses Plaintiff’s initial

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partial filing fee to be $14.40 pursuant to 28 U.S.C. § 1915(b)(1). However, the Court

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also notes Plaintiff may be unable to pay that initial fee at this time. See 28 U.S.C.

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

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

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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, declines to

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“exact” the initial $14.40 initial filing fee because his prison certificate shows he “has no

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means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Watch Commander for SDCJ,

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or their designee, to instead collect the entire $350 balance of the filing fees required by

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28 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 alleges that he was housed at the George Bailey Detention Facility

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(“GBDF”) on January 16, 2018. See Doc. No. 1 at 1. Plaintiff hit his leg on the “stool”

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in his cell which “broke the skin.” Id. Plaintiff informed an unnamed officer of the

Plaintiff’s Allegations

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incident who “allowed [him] to take a shower” and told Plaintiff he would be seen at

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“sick call” the next day. Id. The next morning Plaintiff informed a nurse that he “did not

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feel good.” Id. The nurse instructed Plaintiff to “fill out a sick call slip” but Plaintiff

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refused. Id. Plaintiff informed this nurse that he “needed medical attention asap.” Id.

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The nurse told Plaintiff that he had a fever and needed to have a “culture” taken. Id.

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Plaintiff was taken to the GBDF. Plaintiff claims, however, he “could not take the pain

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and went man down.” Id. Plaintiff was “rushed to Tri-City in an ambulance.” Id.

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Plaintiff had “contracted a flesh eating infection that almost took” his life. Id. Plaintiff

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alleges he was in the hospital for seventeen (17) days. See id.

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C.

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Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and

42 U.S.C. § 1983

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statutory challenges to actions by state and local officials.” Anderson v. Warner, 451

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F.3d 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff

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must allege two essential elements: (1) that a right secured by the Constitution or laws of

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the United States was violated, and (2) that the alleged violation was committed by a

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person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe

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v. Frye, 789 F.3d 1030, 1035-36 (9th Cir. 2015).

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D.

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As an initial matter, the Court finds that to the extent Plaintiff includes the “GBDF

Improper Defendant

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Faculty 8” as a Defendant in the caption of his Complaint, his claims must be dismissed

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sua sponte pursuant to both 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) for failing

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to state a claim upon which § 1983 relief can be granted. Lopez, 203 F.3d at 1126-27;

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Rhodes, 621 F.3d at 1004. A local law enforcement department (like the San Diego

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County Sheriff’s Department or its Jail) is not a proper defendant under § 1983. See

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

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

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

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Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes liability on any ‘person’ who
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violates someone’s constitutional rights ‘under color of law.’ Cook County Jail is not a

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‘person.’”).

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

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

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only if plaintiff shows that his constitutional injury was caused by employees acting

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

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Doyle, 429 U.S. 274, 280 (1977); Monell v. New York City Dep’t of Soc. Servs., 436 U.S.

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658, 691 (1978); Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir.

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2008). Local government entities may not be held vicariously liable under section 1983

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for the unconstitutional acts of its employees under a theory of respondeat superior. See

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Board of Cty. Comm’rs. v. Brown, 520 U.S. 397, 403 (1997).

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E.

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In addition, Plaintiff names Sheriff William Gore but provides no factual

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allegations as to this Defendant. As a result, Plaintiff fails to state a claim upon which

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§ 1983 relief can be granted because he sets forth no individualized allegations of

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wrongdoing by Sheriff Gore, and instead seeks to hold him vicariously liable for the

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actions of his deputies and medical staff. See Iqbal, 556 U.S. at 676 (“Because vicarious

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liability is inapplicable to . . . § 1983 suits,” Plaintiff “must plead that each Government-

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official defendant, though the official’s own individual actions, has violated the

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Constitution.”)

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Respondeat Superior

Plaintiff’s Complaint contains no factual allegations describing what Defendant

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Sheriff Gore knew, did, or failed to do, with regard to Plaintiff’s needs. Estate of Brooks

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v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required

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element of a § 1983 claim.”). “The inquiry into causation must be individualized and

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focus on the duties and responsibilities of each individual defendant whose acts or

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omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844

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F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370–71 (1976)); Berg

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v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986).
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Thus, without some specific “factual content” that might allow the Court to “draw

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the reasonable inference” that Sheriff Gore may be held personally liable for any

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unconstitutional conduct directed at Plaintiff, the Court finds his Complaint, as currently

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pleaded, contains allegations which Iqbal makes clear fail to “state a claim to relief that is

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plausible on its face.” Iqbal, 556 U.S. at 568.

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F.

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A pro se litigant must be given leave to amend his pleading to state a claim unless

Leave to Amend

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it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203

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F.3d at 1130 (noting leave to amend should be granted when a complaint is dismissed

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under 28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can correct the

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defect”). Therefore, while the Court finds Plaintiff’s Complaint fails to state a claim

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upon which relief can be granted, it will provide him a chance to fix the pleading

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deficiencies discussed in this Order, if he can. See Akhtar v. Mesa, 698 F.3d 1202, 1212

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(9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

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III.

Conclusion and Order

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For all the reasons discussed, the Court:

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1.

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(Doc. No. 2).

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2.

GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

DIRECTS the Watch Commander for the SDCJ, or their designee, to collect

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

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

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

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amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

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PAYMENTS 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 Watch

Commander, San Diego Central Jail, 1173 Front Street, San Diego, California, 92101.

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4.

DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

§ 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A;
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GRANTS Plaintiff forty-five (45) days leave to file an Amended Complaint

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which cures all the deficiencies of pleading described in this Order. Plaintiff is

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cautioned, however, that should he choose to file an Amended Complaint, it must be

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complete by itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim

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not re-alleged will be considered waived. See S.D. CAL. CIVLR 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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6.

The Clerk of Court is directed to mail Plaintiff a court approved form civil

rights complaint.
IT IS SO ORDERED.
Dated: June 12, 2018

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