Duell v. Genser et al

Filing 26

ORDER : (1) Granting Renewed Motion to Proceed In Forma Pauperis [ECF No. 22 ]; and (2) Dismissing Civil Action for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2) AND 28 U.S.C. § 1915A(b) (Order electronically transmitted to Secretary of CDCR and Watch Commander). Signed by Judge John A. Houston on 3/30/2021. (All non-registered users served via U.S. Mail Service)(anh)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12
13

TODD ALAN DUELL,
Booking #19727431,
CDCR # BI-8918,

16

ORDER:
Plaintiff,

14
15

Case No.: 3:20-cv-01145-JAH-AGS

(1) GRANTING RENEWED
MOTION TO PROCEED
IN FORMA PAUPERIS
[ECF No. 22]

vs.
ABRAM GENSER;
WILLIAM GORE,
Defendants.

17

AND

18

(2) DISMISSING CIVIL ACTION
FOR FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND 28 U.S.C. § 1915A(b)

19
20
21
22

Plaintiff Todd Alan Duell, a California state prisoner currently detained at the San

23

Diego County Jail (“SDCJ”), and either awaiting trial or sentence in San Diego Superior

24

Court Criminal Case No. SCD279745, is proceeding pro se in this civil rights action filed

25

pursuant to 42 U.S.C. § 1983. 1 See Compl., ECF No. 1 at 1. While far from clear,

26
27
28

1

According to the San Diego County Sheriff’s Department website, Plaintiff is also identified as
California Department of Corrections and Rehabilitation (“CDCR”) Inmate No. BI-8918, but is currently
1

3:20-cv-01145-JAH-AGS

1

Plaintiff’s Complaint appears to challenge the effectiveness of his public defender,

2

Defendant Abram Genser, to assert his right to self-representation in the ongoing state

3

criminal proceedings, see Compl. at 2, 3 & “Attachment 1,” ECF No. 1 at 8-16, and to

4

seek his immediate release based on various conditions of his confinement at the San

5

Diego County Sheriff Department’s George Bailey Detention Facility (“GBDF”). Id. at

6

1‒4 & “Attachment 2” at 17-30. Plaintiff seeks both general, punitive and Biblical

7

damages 2 pursuant to the Book of Revelations and Galatians against Genser and William

8

Gore, the San Diego County Sheriff, id., “Attachment 4” at 36‒37, as well as injunctive

9

relief requiring the dismissal of San Diego County Superior Court Case No. SCD279745,

10

and his immediate release “from all facilities.” Id. at 4, 30. 3

11

I.

Procedural History

12

On September11, 2020, the Court denied Plaintiff’s initial Motion to Proceed In

13

Forma Pauperis (“IFP”) because he failed to attach a certified copy of his inmate trust

14
15
16
17
18
19
20
21
22
23
24

facing multiple counts of felony forgery in violation of Cal. Penal Code § 115(a) in San Diego Superior
Court Criminal Case No. SCD279745. See https://apps.sdsheriff.net/wij/wijDetail.aspx?Book Num=
p16EMZPf7dl9kIqp%2fBibGAnOHXSUFOWd%2frgxfouFWBo%3d (last accessed March 4, 2021);
United States v. Basher, 629 F.3d 1161, 1165 (9th Cir. 2011) (taking judicial notice of Bureau of Prisons’
inmate locator); Graham v. Los Angeles Cty., No. 2:18-CV-01126-PA(GJS), 2018 WL 6137155, at *2
(C.D. Cal. May 4, 2018) (taking judicial notice pursuant to Fed. R. Civ. P. 201 of County Sheriff
Department’s website and its inmate locator function, “which provides some information regarding the
status of inmates housed in … County jail[]” for purposes of initial screening pursuant to 28 U.S.C.
§ 1915A). Plaintiff also filed a habeas corpus petition in this Court pursuant to 28 U.S.C. § 2254 on
September 24, 2020, but it was transferred to the Central District of California to the extent it sought to
challenge the validity of a February 4, 2019 criminal conviction in Ventura County Superior Court Case
No. 2016004124. See Duell v. Gore, et al., S.D. Cal. Civil Case No. 3:20-cv-01914-WQH-AGS (ECF No.
1, “Pet.” at 1-2; ECF No. 3-1 “Order of Transfer” at 1-3.); Bias v. Moynihan, 508 F.3d 1212, 1225 (9th
Cir. 2007) (“[W]e ‘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.’”) (citations omitted).
2

26

“Like modern tort law, the Bible usually deters tortious activity by imposing upon the wrongdoer a cost
that is at least equal to the inflicted harm.” Moshe Bar Niv (Burnovski), Regulating Theft - Lessons from
Biblical Law, 16 RUTGERS J. L. & RELIGION 71, 74 (2014).

27

3

25

28

Plaintiff also filed a “Supplemental Complaint” (ECF No. 4), “demand[ing] [a] commercial remedy,” to
“force probate” of his “estate legacy account” based on Defendants’ “intentional fraud and failure of the
duty of good faith,” and an order setting him “at liberty immediately.” See Suppl. Compl. at 3-4.
2

3:20-cv-01145-JAH-AGS

1

account statements as required by 28 U.S.C. § 1915(a)(2), but granted him leave to fix

2

that deficiency. See ECF No. 12. In that same Order, however, the Court cautioned that

3

should Plaintiff elect to successfully file a renewed IFP Motion, he would remain

4

obligated to pay the full $350 civil filing fee in installments, and face potential immediate

5

sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). See ECF No. 12 at 4‒5 n.3.

6

Specifically, the Court noted that as pleaded, Plaintiff’s Complaint appeared

7

subject to dismissal with respect to Defendant Genser because public defenders “[do] not

8

act under color of state law [under § 1983] when performing a lawyers’ traditional

9

functions as counsel to a defendant in a criminal proceeding,” id. (quoting Polk County v.

10

Dodson¸454 U.S. 312, 325 (1981)), and with respect to Defendant Gore because as

11

Sheriff, he could not be held vicariously liable for the actions of his deputies. Id. (citing

12

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Finally, the Court advised Plaintiff that to

13

the extent he sought injunctive relief with respect to still-pending criminal charges in San

14

Diego Criminal Case No. SCD279745, Younger v. Harris, 401 U.S. 37 (1971), abstention

15

would be required. Id.

16

Despite these warnings, Plaintiff filed a renewed IFP, together with the trust

17

account statements he was previously lacking. 4 See ECF No. 22. He has not, however,

18

filed an Amended Complaint addressing the deficiencies of pleading identified in the

19

Court’s September 11, 2020 Order. Instead, he has submitted a “Notice to the Court”

20

seeking leniency in light of his pro se status, together with a proposed summons for

21

purposes of serving Defendants Genser and Gore. See ECF No. 24 at 1, 8‒9.

22

II.

23
24

Renewed Motion to Proceed IFP
As Plaintiff now knows, all parties instituting any civil action, suit or proceeding in

a district court of the United States, except an application for writ of habeas corpus, must

25
26
27
28

4

Plaintiff did so, however, only after filing a premature Notice of Appeal (ECF No. 13), which has since
been dismissed. See ECF No. 25. While that appeal was pending, Plaintiff also requested and was granted
an extension of time in which to submit his renewed IFP Motion. See ECF Nos. 20, 21.
3

3:20-cv-01145-JAH-AGS

1

pay a filing fee of $400. 5 See 28 U.S.C. § 1914(a). The action may proceed despite failure

2

to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28

3

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

4

Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to

5

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

6

Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th

7

Cir. 2015), and regardless of outcome. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v.

8

Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

9

Section 1915(a)(2) requires all persons seeking to proceed without full prepayment

10

of fees to submit an affidavit that includes a statement of all assets possessed and

11

demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th

12

Cir. 2015). In support of this affidavit, § 1915(a)(2) requires that all prisoners as defined

13

by 28 U.S.C. § 1915(h) who “seek[] to bring a civil action ... without prepayment of fees

14

... shall submit a certified copy of the trust fund account statement (or institutional

15

equivalent) ... for the 6-month period immediately preceding the filing of the complaint.”

16

28 U.S.C. § 1915(a)(2) (emphasis added); Andrews v. King, 398 F.3d 1113, 1119 (9th

17

Cir. 2005).

18

From the certified trust account statement, the Court must assess an initial payment

19

of 20% of (a) the average monthly deposits in the account for the past six months, or (b)

20

the average monthly balance in the account for the past six months, whichever is greater,

21

unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4).

22

The institution having custody of the prisoner then must collect subsequent payments,

23
24
25
26
27
28

5

For civil cases like this one, filed before December 1, 2020, the civil litigant bringing suit must pay the
$350 statutory fee in addition to a $50 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference
Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June. 1, 2016). The $50 administrative fee
does not apply to persons granted leave to proceed IFP, however. Id. This administrative fee increased to
$52 for civil cases filed on or after December 1, 2020, but that portion still does not apply to persons
granted leave to proceed IFP. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District
Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020).
4

3:20-cv-01145-JAH-AGS

1

assessed at 20% of the preceding month’s income, in any month in which his account

2

exceeds $10, and forwards those payments to the Court until the entire filing fee is paid.

3

See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 85‒86.

4

In support of his renewed IFP Motion, Plaintiff has now submitted a prison

5

certificate certified by a San Diego County Sheriff’s Department Detentions Captain,

6

together with a copy of his Inmate Trust Account Activity dated January 17, 2020

7

through September 30, 2020. See ECF No. 22 at 4‒6; 28 U.S.C. § 1915(a)(2); S.D. Cal.

8

CivLR 3.2; Andrews, 398 F.3d at 1119. These statements show Plaintiff had $88.22 to his

9

credit at SDCJ at the time of filing, average monthly deposits of $191.67, and carried an

10

average balance of $14.70 in his account over the preceding six-months. See ECF No. 22

11

at 4.

12

Therefore, the Court GRANTS Plaintiff’s Renewed Motion to Proceed IFP (ECF

13

No. 22) and assesses his initial partial filing fee to be $38.33 pursuant to 28 U.S.C.

14

§ 1915(b)(1). However, the Court will direct the Watch Commander at SDCJ, or the

15

Secretary of the California Department of Corrections and Rehabilitation (“CDCR”), or

16

their designees, to collect this initial filing fee only if sufficient funds are available in

17

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

18

(providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action

19

or appealing a civil action or criminal judgment for the reason that the prisoner has no

20

assets and no means by which to pay the initial partial filing fee.”); Bruce, 577 U.S. at 86;

21

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

22

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

23

the lack of funds available to him when payment is ordered.”). The remaining balance of

24

the $350 total fee owed in this case must be collected by whichever agency has custody

25

of the prisoner and forwarded to the Clerk of the Court pursuant to 28 U.S.C.

26

§ 1915(b)(2).

27

///

28

///
5

3:20-cv-01145-JAH-AGS

1

III.

Screening pursuant to 28 U.S.C. § 1915(e)(2) & 1915A

2

A.

3

As the Court has previously cautioned, because Plaintiff is a prisoner and is

Standard of Review

4

proceeding IFP, his Complaint requires a preliminary review pursuant to 28 U.S.C.

5

§ 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a

6

prisoner’s IFP complaint, or any portion thereof, if it is frivolous, malicious, fails to state

7

a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203

8

F.3d 1122, 1126‒27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2));

9

Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C.

10

§ 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or

11

malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

12

903, 920 n.1 (9th Cir. 2014) (citation omitted).

13

“The standard for determining whether a plaintiff has failed to state a claim upon

14

which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

15

Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

16

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

17

Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

18

applied in the context of failure to state a claim under Federal Rule of Civil Procedure

19

12(b)(6)”).

20

Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain

21

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

22

face.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted); Wilhelm, 680 F.3d at

23

1121. And while the court “ha[s] an obligation where the petitioner is pro se, particularly

24

in civil rights cases, to construe the pleadings liberally and to afford the petitioner the

25

benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing

26

Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential

27

elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of

28

Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
6

3:20-cv-01145-JAH-AGS

1

B.

2

Plaintiff’s Complaint does not include any factual allegations. Instead, when asked

Plaintiff’s Allegations

3

to identify his causes of action, he merely catalogues his rights to “access to the court,

4

due process, … to be let alone, self-representation, medical care, private contract, liberty,

5

[to be free from] cruel and unusual punishment,” and “life.” See Compl. at 3, 4. In the

6

“supporting facts” section, Plaintiff refers globally to the “totality of the conditions” and

7

the “overall” and “combined affect of multiple violations by multiple state actors.” Id. at

8

3. But he names only his public defender and the San Diego County Sheriff as parties,

9

and directs the Court to consider more than 50 pages of his “chronological” narrative

10

enclosed as “Attachments” to his pleading. Id. at 4-5, 8‒57. 6

11

In the first of these, which appears to relate only to Defendant Genser, Plaintiff

12

claims he is both the trustee and beneficiary of a “private, complex, irrevocable trust”

13

which Genser refused to acknowledge was within in his “jurisdiction” or “scope of

14

authority” as Plaintiff’s appointed counsel in San Diego Criminal Case No. SCD279745.

15

See Attach. 1, ECF No. 1 at 9. Plaintiff then recounts various ways in which Genser has

16

failed to adequately defend him, focusing mainly on Genser’s refusals to present financial

17

documents Plaintiff insists are “certified,” but his counsel contends “are not real.” Id. at

18

9‒12, 14. Plaintiff also objects to the Superior Court’s denial of his Marsden motion, 7

19

and involuntary psychiatric evaluations ordered by the Court at Genser’s behest. Id. at

20
21
22
23
24
25
26
27
28

6

“The Court will not comb through attached exhibits seeking to determine whether a claim possibly could
have been stated where the pleading itself does not state a claim. In short, [Plaintiff] must state a claim,
not merely attach exhibits.” Stewart v. Nevada, No. 2:09-CV-01063, 2011 WL 588485, at *2 (D. Nev.
Feb. 9, 2011); accord Jackson v. Covello, No. 3:19-CV-2444 JAH MDD, 2020 WL 6582659, at *3 (S.D.
Cal. Nov. 10, 2020).
7

People v. Marsden, 2 Cal. 3d 118, 124-25 (1970) provides a criminal defendant in California the
opportunity to explain his reasons for moving to substitute appointed counsel. Hart v. Broomfield, 2020
WL 4505792, at *55 (C.D. Cal. Aug. 5, 2020). The Sixth and Fourteenth Amendments guarantee a
criminal defendant’s right to reject court-appointed counsel and to conduct his or her own defense. Faretta
v. California, 422 U.S. 806, 834–36 (1975).
7

3:20-cv-01145-JAH-AGS

1

11‒14. 8

2

Plaintiff’s second attachment comprises a categorical account of the overall

3

deficient conditions under which he has been detained at GBDF “from January 2019 to

4

current.” See Compl. at 1, 18‒25. In it, Plaintiff broadly claims GBDF is “not equipped”

5

to treat his various medical needs, which include a range of ailments like diabetes,

6

hypothyroidism, an inflamed liver, swollen ankles, kidney stones, blisters, and heart

7

palpitations. Id. at 18‒20. He objects to the lack of homeopathic remedies, vitamins,

8

testosterone therapy, CBD oil, sterilized drinking water, low-fat dietary options, other

9

means by which he “could receive immediate care through his insurance company,” and

10

fears potential exposure to “tuberculosis, hepatitis A/G/C, MERSA, staph, HIV,

11

pneumonia, cold virus, flu virus, fungus, bacteria, and now the deadly world-wide

12

pandemic corona virus,” claiming the “systemic breakdown and lack of leadership” in the

13

County jail system since 2009 “warrant[s] [his] removal” from custody. Id. at 20-25.

14

C.

15

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

42 U.S.C. § 1983

16

elements: (1) that a right secured by the Constitution or laws of the United States was

17

violated, and (2) that the alleged violation was committed by a person acting under the

18

color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,

19

1035-36 (9th Cir. 2015); see also Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir.

20

1985) (en banc) (noting the Court reaches the issue of defendants’ § 1983 liability only if

21

defendants acted under color of state law, and the conduct deprived plaintiff of a

22

constitutional right).

23

///

24
25
26
27
28

8

Plaintiff’s Supplemental Complaint includes many of the same rambling and incoherent allegations
against Genser. For example, Plaintiff claims Genser is “in default’ and has committed an “intentional
fraud” by failing to “execute all motions” and perform his duty to “turn over all legacy estate accounting
records and securities” and to “produce evidence of ‘supersedeas motion’ trust number CD279745 for
inspection by this court” within 72 hours. See Suppl. Compl., ECF No. 4 at 2‒5.
8

3:20-cv-01145-JAH-AGS

1

D.

2

As the Court noted in its September 11, 2020 Order, to the extent Plaintiff seeks to

Defendant Genser

3

sue Abram Genser, his appointed public defender, for failing to provide him effective

4

assistance of counsel, by “block[ing] [his] rights,” and by subjecting him to “wanton and

5

unethical treatment by abuse of [the] legal process” pursuant to 42 U.S.C. § 1983, see

6

Compl., Attach. 1 at 14‒15, 12, he fails to state a claim upon which relief can be granted.

7

See 28 U.S.C. § 1915(e)(2)(B)(ii); Watison, 668 F.3d at 1112.

8
9

“[A] public defender does not act under color of state law when performing a
lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Polk,

10

454 U.S. at 325; Garnier v. Clarke, 332 Fed. App’x 416 (9th Cir. 2009) (affirming

11

district court’s sua sponte dismissal of prisoner’s section 1983 claims against appointed

12

counsel); Schmidt v. Mize, 2018 WL 2411750, at *3 (S.D. Cal. May 29, 2018) (sua sponte

13

dismissing prisoner’s § 1983 claims against public defender pursuant to 28 U.S.C.

14

§ 1915(e)(2)).

15

E.

16

As the Court also previously cautioned, and notwithstanding his various objections

17

to the general conditions of his confinement at GBDF, Plaintiff’s Complaint fails to state

18

a claim against Sheriff Gore. See ECF No. 12 at 4-5 n.2.

19

Sheriff Gore

“[L]iability under § 1983 must be based on the personal involvement of the

20

defendant.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Accordingly,

21

“[l]iability under section 1983 arises only upon a showing of personal participation by the

22

defendant” in the deprivation alleged. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)

23

(citing Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)); see also King v. Atiyeh, 814

24

F.2d 565, 568 (9th Cir. 1987) (noting that “state officials are not subject to suit under

25

§ 1983 unless they play an affirmative part in the alleged deprivation of constitutional

26

rights”). “A plaintiff must allege facts, not simply conclusions, that show an individual

27

was personally involved in the deprivation of his civil rights.” Barren, 152 F.3d at 1194.

28

A person deprives another “of a constitutional right, within the meaning of section 1983,
9

3:20-cv-01145-JAH-AGS

1

if he does an affirmative act, participates in another’s affirmative acts, or omits to

2

perform an act which he is legally required to do that causes the deprivation of which [the

3

plaintiff] complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

4

Alternatively, liability also may be imposed under section 1983 if the defendant

5

sets into “motion a series of acts by others which the [defendant] knows or reasonably

6

should know would cause others to inflict the constitutional injury.” Gini v. Las Vegas

7

Metro. Police Dep’t, 40 F.3d 1041, 1044 (9th Cir. 1994) (quoting Merritt v. Mackey, 827

8

F.2d 1368, 1371 (9th Cir. 1987)). Section 1983, however, does not impose liability upon

9

supervisory officials for the acts of their subordinates under a respondent superior theory

10

of liability. Iqbal, 556 U.S. at 677 (“Absent vicarious liability, each Government official,

11

his or her title notwithstanding, is only liable for his or her own misconduct.”); Taylor,

12

880 F.2d at 1045. A supervisory official may only be held liable under § 1983 only if

13

Plaintiff alleges his “personal involvement in the constitutional deprivation, or ... a

14

sufficient causal connection between the supervisor’s wrongful conduct and the

15

constitutional violation.” Keates v. Koile, 883 F.3d 1228, 1242-43 (9th Cir. 2018); Starr

16

v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011); see also Estate of Brooks ex rel. Brooks v.

17

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

18

element of a § 1983 claim.”).

19

With respect to Plaintiff’s conditions of confinement claims arising at GBDF from

20

“January 2019 to current,” see Compl. at 1, & Attach. 2 at 18‒25, he fails to allege any

21

personal involvement on behalf of the Sheriff himself. See, e.g., Conley v. Nielsen, 706

22

Fed. App’x 890, 892 (9th Cir. 2017)) (affirming sua sponte dismissal of claims raised

23

against “all medical staff” at the County Jail because the plaintiff failed to identify any of

24

the individuals involved and describe any “specific conduct attributable to them.”); Iqbal,

25

556 U.S. at 678. Instead, Plaintiff’s Complaint identifies Defendant Gore by his title as

26

“Sheriff/Warden,” see Compl. at 2, and broadly charges him with “a systematic

27

breakdown and lack of leadership … since 2009.” See Compl. at 20. He fails to attribute

28

any specific act of misconduct on any specific occasion to Gore, however; and does not
10

3:20-cv-01145-JAH-AGS

1

allege facts sufficient to plausibly show how Gore’s purported “lack of leadership”

2

caused him any constitutional injury. 9 See Iqbal, 556 U.S. at 677; see also Jones v.

3

Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir.

4

1984) (even pro se plaintiff must “allege with at least some degree of particularity overt

5

acts which defendants engaged in” in order to state a claim).

6

F.

7

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

8

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

9

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

Younger Abstention

10

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

11

extraordinary circumstances. See Younger, 401 U.S. at 43–54; Sprint Commc’ns, Inc. v.

12

Jacobs, 571 U.S. 69, 77 (2013); Cook v. Harding, 879 F.3d 1035, 1039 (9th Cir. 2018);

13

ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014).

14

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

15

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

16

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

17

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

18

also Washington v. Los Angeles County Sheriff’s Dept., 833 F.3d 1048, 1058 (9th Cir.

19

2016) (holding that “a dismissal due to Younger abstention [is] similar to a dismissal

20

under Rule 12(b)(6) for lack of subject-matter jurisdiction.”).

21

///

22
23
24
25
26
27
28

9

Plaintiff does not allege to have actually contracted any disease while in custody—only to fear exposure
to them. And while his concerns about contracting COVID-19 in particular are understandable, he fails to
offer any specific facts supporting a viable Eighth or Fourteenth Amendment claim or a causal link
between Sheriff Gore’s acts or omissions and any compensable injury. Alleging “the mere possibility of
misconduct” is not enough. Iqbal, 556 U.S. at 679; Harmon v. City of Twin Falls, No. 1:20-CV-00525BLW, 2021 WL 51756, at *4 (D. Idaho Jan. 6, 2021) (finding convicted prisoner’s unsupported claims of
“increased risk from COVID-19” while in county custody insufficient to state a claim for relief pursuant
to 28 U.S.C. § 1915(e) and § 1915A).
11

3:20-cv-01145-JAH-AGS

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

declaratory and injunctive relief).

9

Here, Plaintiff alleges his San Diego criminal proceedings commenced in January

10

2019 and were still ongoing at the time he filed his Complaint. 10 See Compl. at 1. State

11

proceedings are deemed ongoing until appellate review is completed. See Gilbertson, 381

12

F.3d at 969 n.4 (citation omitted); Huffman v. Pursue, 420 U.S. 592, 608 (1975) (“[A]

13

necessary concomitant of Younger is that a party ... must exhaust his state appellate

14

remedies before seeking relief in the District Court.”).

15

There is no question that whatever the specific nature of Plaintiff’s current criminal

16

charges, they implicate important state interests, and “involve [the] state’s interest in

17

enforcing orders and judgments of its courts.” Sprint, 571 U.S. at 73; ReadyLink, 754

18

F.3d at 759. Specifically, Plaintiff claims his public defender has failed to adequately

19

represent him, has subjected him to psychiatric evaluation without his consent, and

20

objects because the trial court has refused to “discharge” him. See Compl. at 11-16, 27.

21

These are the type of claims and relief the state courts afford an adequate opportunity to

22

raise on direct appeal, or via a writ of mandate in the state’s courts. See San Jose Silicon

23

Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d

24
25
26
27
28

10

According to the San Diego County Sheriff’s Department website, Plaintiff was booked into County
custody in San Diego Criminal Case No. SCD279745 on May 2, 2019, but has yet to be tried or sentenced.
See https://apps.sdsheriff.net/wij/wijDetail.aspx?BookNum=LjrB5gNMagoGDldo3hRD0IY 60kQor1G
% 2fdJizJZGT0RQ%3d (last accessed March 4, 2021).
12

3:20-cv-01145-JAH-AGS

1

1087, 1095 (9th Cir. 2008); Clark v. Lassen Cnty Justice Court, 967 F.2d 585 at *1 (9th

2

Cir. 1992) (sua sponte dismissing federal civil action challenging state court’s bail

3

determinations as frivolous pursuant to 28 U.S.C. § 1915(d) [currently codified at 28

4

U.S.C. § 1915(e)(2)(B)(i)] as barred by Younger). In fact, Plaintiff alleges to have filed

5

writs of mandamus with the California Court of Appeal arguing he should be permitted to

6

“represent himself under the 6th and 14th Amendments,” see Compl. at 13, and he

7

explicitly seeks this Court’s intervention by way of a “dismissal of the case (CD279745)

8

in its entirety and liberty from all facilities.” Id. at 30. 11

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

bail” on Younger abstention grounds).

17

Thus, for all the foregoing reasons, Plaintiff’s Complaint must be dismissed sua

18

sponte based on his failure to state a claim upon which § 1983 relief may be granted. See

19

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

20

F.3d at 1121.

21

G.

22

Because Plaintiff has been previously apprised of his pleading’s deficiencies, but

23

has failed to fix them, the Court finds granting him further leave to amend would prove

Leave to Amend

24
25
26
27
28

11

Moreover, “when a state prisoner is challenging the very fact or duration of his physical imprisonment,
and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from
that imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S.
475, 500 (1973). A prisoner in state custody “cannot use a § 1983 action to challenge ‘the fact or duration
of his confinement.’” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (quoting Preiser, 411 U.S. at 489).
13

3:20-cv-01145-JAH-AGS

1

futile. See Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014)

2

(“‘Futility of amendment can, by itself, justify the denial of ... leave to amend.’”)

3

(quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v.

4

Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the plaintiff has

5

previously been granted leave to amend and has subsequently failed to add the requisite

6

particularity to its claims, [t]he district court’s discretion to deny leave to amend is

7

particularly broad.” (internal quotation marks omitted) (second alteration in original)).

8

Amendment would also be futile because even if Plaintiff could adequately plead a

9

plausible claim for relief upon which § 1983 relief can be granted, this Court would

10

nevertheless be required to abstain. See Clark v. Superior Court of Cal., No. 3:19-cv-

11

00141-LAB-LL, 2019 WL 1114881, at *5 (S.D. Cal. Mar. 11, 2019) (denying pro se

12

inmate leave to amend as futile when complaint was barred by Younger abstention);

13

Davis v. Mendes, No. 13-CV-1817 BEN RBB, 2014 WL 1744137, at *3 (S.D. Cal. Apr.

14

30, 2014) (denying leave to amend as futile when prisoner’s § 1983 claims were subject

15

to dismissal under § 1915(e)(2) and § 1915A based on absolute immunity and Younger

16

abstention).

17

IV.

Conclusion and Orders

18

For the reasons explained, the Court:

19

1.

20

(ECF No. 22).

21

2.

GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
DIRECTS the Watch Commander of GBDF, or the Secretary of the CDCR,

22

or their designees, and any subsequent “agency having custody” of Plaintiff to collect

23

from his trust account the $38.33 initial partial filing fee assessed by the Order, and to

24

garnish the remainder of the $350 filing fee owed in this case in monthly payments from

25

his account in an amount equal to twenty percent (20%) of the preceding month’s income

26

and forwarding those payments to the Clerk of the Court each time the amount in the

27

account exceeds $ 10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE

28

CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS
14

3:20-cv-01145-JAH-AGS

1
2

ACTION.
3.

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

3

Commander, San Diego County Jail, 1173 Front Street, San Diego, California 92106, and

4

to forward an electronic copy to [e-mail].

5

4.

DISMISSES this civil action based on Plaintiff’s failure to state a claim

6

upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)

7

and as barred by Younger.

8
9

5.

CERTIFIES that an IFP appeal would not be taken in good faith pursuant

to 28 U.S.C. § 1915(a)(3), and

10

6.

11

IT IS SO ORDERED.

DIRECTS the Clerk of the Court to enter judgment and to close the file.

12
13
14
15

Dated: March 30, 2021
Hon. John A. Houston
United States District Judge

16
17
18
19
20
21
22
23
24
25
26
27
28
15

3:20-cv-01145-JAH-AGS