Pies-Lonsdale v. Banachi et al

Filing 5

ORDER granting 3 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). The Court D ISMISSES the Plaintiff's Eight Amendment and Due Process claims in their entirety without leave to amend based on Plaintiff's failure to state a claim upon which relief can granted. The Court further DISMISSES Plaintiff's retaliation c laim based on Plaintiff's failure to state a claim upon which relief can granted. The Court GRANTS Plaintiff leave to amend his retaliation claim. Any such amended pleading must be filed within forty-five (45) days of the date of this Order. Signed by Judge Larry Alan Burns on 5/10/2022. (All non-registered users served via U.S. Mail Service) (fth)

Case 3:22-cv-00310-LAB-BLM Document 5 Filed 05/10/22 PageID.31 Page 1 of 10

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GABRIEL PIES-LONSDALE
INMATE #64770-298,

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Case No.: 3:22-cv-00310-LAB-BLM
ORDER:
Plaintiff,

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 3]

vs.
F. BANACHI, et al.,

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2) SCREENING COMPLAINT
PURSUANT TO 28 U.S.C. § 1915(e)(2)
& 28 U.S.C. § 1915A(b)

Defendants.

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Gabriel Pies-Lonsdale (“Pies-Lonsdale” or “Plaintiff”), a federal detainee currently

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housed 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 42 U.S.C. § 1983. Compl.,

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ECF No. 1. Plaintiff claims Defendants violated his Eighth and Fourteenth Amendment

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rights. Id. at 4 –6. He requests damages in the amount of $900,000,000, and punitive

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damages in the amount of $463.00. Id. at 9. Plaintiff has not prepaid the filing fee required

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by 28 U.S.C. § 1914(a) to commence a civil action; instead, he has filed a Motion to

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Proceed IFP. ECF No. 3.
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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. 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, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th

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Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C.

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§ 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

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“certified copy of the trust fund account statement (or institutional equivalent) for . . . the

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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). 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 balance

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in the account for the past six months, whichever is greater, unless the prisoner has no

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assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody

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

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

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

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136 S. Ct. at 629.

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In addition to the $350 statutory fee, civil litigants must pay an additional administrative
fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.

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In support of his IFP Motion, Plaintiff has submitted a copy of his MCC trust account

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activity and a Prison Certificate signed by an authorized officer. See ECF No. 3 at 4–5; 28

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U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These statements

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show that Plaintiff has had an average monthly balance of $50.48 and average monthly

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deposits of $50.48 for the preceding six months. Id. at 4. He had an available balance of

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$0.00 at the time of filing. See ECF No. 3 at 4. Based on this accounting, the Court

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GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 3) and assesses an initial partial

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filing fee of $10.09 pursuant to 28 U.S.C. § 1915(b)(1). However, this initial fee need be

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collected only if sufficient funds are available in Newton’s account at the time this Order

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

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prohibited from bringing a civil action or appealing a civil action or criminal judgment for

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the reason that the prisoner has no assets and no means by which to pay the initial partial

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filing fee.”); Bruce, 577 U.S. at 86; Taylor, 281 F.3d at 850 (finding that 28 U.S.C.

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§ 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based

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solely on a “failure to pay . . . due to the lack of funds available to him when payment is

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

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by the agency having custody of Plaintiff and forwarded to the Clerk of the Court pursuant

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to 28 U.S.C. § 1915(b)(2).

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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-

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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 sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which

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is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

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immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing

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28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

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(discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the

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targets of frivolous or malicious suits need not bear the expense of responding.’”

Standard of Review

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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 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 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 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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B.

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At the time Plaintiff filed his Complaint he was housed at the Western Regional

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Detention Facility (“WRDF”). Plaintiff alleges that on February 16, 2022, he was booked

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into the WRDF and had $463.00 in his jacket pocket. Compl., ECF No. 1 at 4. According

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to Plaintiff, Defendant Banachi was the person who performed the “detainee property

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intake,” and the $463.00 is now missing. Id. On February 21, 2022, Plaintiff filed a

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grievance regarding the missing money. Id. Defendant Hartley allegedly replied, “You

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know very well that you did not arrive with any cash. The officer who annotated the

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$463.00 is being reprimanded as he admitted he didn’t actually receive any cash on your

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behalf. You transferred from another facility [and] money does not transfer with you ever.

Plaintiff’s Factual Allegations

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The Chief is attempting to contact the prior facility.” Id.

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Plaintiff also alleges that on February 17, 2022, Defendant Carney yelled the

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following at him while Plaintiff was in the visiting room waiting for court: “I am [going]

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to make sure your time here is a [living] hell[.] You think we forgot about that tort claim;

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you[’re] this close to going to segregation and you can forget about your money.” Id.

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On February 18, 2022, Plaintiff alleges he put in a health services request because

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he had a rash on his penis, but had no response to the request as of February 25, 2022. Id.

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On February 19, 2022, Plaintiff filed a health care grievance asking to be tested for Covid-

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19 because he had not been tested when he arrived at the detention facility, was feeling

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sick, and Covid-19 protocols were not being followed, such as temperature checks and six

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feet of distancing. Id. at 6. He claims he never received a response to the grievance. Id.

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Plaintiff also claims that on March 2, 2022, a WRDF captain “impersonated . . . my

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attorney telling staff that I had a legal visit in a fraudulent matter.” Id. According to

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Plaintiff, it was in fact “a standoff to intimidate me with threats and then to [bribe] me with

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medical care,” which Plaintiff claims consisted only of a blood pressure check. Id.

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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). “To establish § 1983 liability, a plaintiff must show

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both (1) deprivation of a right secured by the Constitution and laws of the United States,

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and (2) that the deprivation was committed by a person acting under color of state law.”

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Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012) (emphasis added).

42 U.S.C. § 1983

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D.

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Plaintiff is a federal pretrial detainee seeking to sue federal defendants for allegedly

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violating his Eighth Amendment rights by refusing him proper medical care and his due

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process rights failing to respond to grievances. Compl., ECF No. 1 at 4–6. Therefore, he

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may not proceed under § 1983 because the claims in the Complaint to not allege the

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Defendants acted under color of state law. Tsao, 698 F.3d at 1138. Because Plaintiff is

Discussion

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proceeding without counsel, however, the Court will liberally construe the constitutional

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claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

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403 U.S. 388 (1971). Bivens is the “federal analogue” to § 1983. Hartman v. Moore, 547

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U.S. 250, 254, 255 n.2 (2006); Iqbal, 556 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. Bivens 403 U.S. at 397; Iqbal, 556 U.S. at 675. After Bivens, the Supreme

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Court 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. Malesko,

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534 U.S. 61, 67–68 (2001); see also Iqbal, 556 U.S. at 675 (noting Supreme Court’s refusal

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to “extend Bivens to a claim sounding in the First Amendment.”) (citing Bush v. Lucas,

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462 U.S. 367 (1983)). However, the Supreme Court has “made clear that expanding the

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Bivens remedy is now a ‘disfavored’ judicial activity. Ziglar v. Abbasi, __ U.S. __, 137 S.

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Ct. 1843, 1857 (2017), citing Iqbal, 556 U.S. at 675.

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Eighth Amendment and Due Process Claims

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Plaintiff has not plausibly alleged an Eighth Amendment Bivens claim against the

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WRDF officials he has named as Defendants. Iqbal, 556 U.S. at 678. WRDF is owned by

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The GEO Group, a private company that provides private prison services to the federal

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government. See https://www.geogroup.com/Locations (last visited on May 5, 2022). 2 The

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Supreme Court has held as follows:

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[W]here, as here, a federal prisoner seeks damages from privately employed
personnel working at a privately operated federal prison, where the conduct
allegedly amounts to a violation of the Eighth Amendment, and where that

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See Romero v. Securus Technologies, Inc., 216 F. Supp. 3d 1078, 1085 fn. 1 (“Under
[Federal Rule of Evidence 201], the court can take judicial notice of ‘public records and
government documents available from reliable sources on the Internet, such as websites
run by governmental agencies.’”)

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conduct is of a kind that typically falls within the scope of traditional state tort
law (such as the conduct involving improper medical care at issue here), the
prisoner must seek a remedy under state tort law. We cannot imply a Bivens
remedy in such a case.
Minneci v. Pollard, 565 U.S. 118, 131 (2012).

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Plaintiff has also failed to plausibly allege a due process violation under Bivens with

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regard to the Defendants’ alleged failure to respond to the grievances he submitted because

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prisoners do not have a “separate constitutional entitlement to a specific prison grievance

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procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citation omitted); see

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also Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (due process not violated simply

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because defendant fails properly to process grievances submitted for consideration); see

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also Larkin v. Watts, 300 Fed. Appx. 501, 2008 WL 4946284, at *1 (9th Cir. 2008)

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(upholding district court’s dismissal of plaintiff’s civil action and finding that neither the

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claim for “property deprivation or loss” nor “improperly processed . . . complaints or

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grievances . . . give rise to a cognizable constitutional or Bivens claim”) (citing Hudson v.

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Palmer, 468 U.S. 517, 533 and Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994).)

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2.

Retaliation

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In his Complaint, Plaintiff states that Defendant Carney told him that he would

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“make sure [Plaintiff’s] time here is a living hell . . . . You think we forgot about that tort

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claim. You are this close to going to segregation and you can forget about your money.”

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Compl., ECF No. 1 at 4. The Court will liberally construe this allegation as a retaliation

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claim. “Within the prison context, a viable claim of First Amendment retaliation entails

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five basic elements: (1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled

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the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

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advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

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Cir. 2005). Plaintiff has not plausibly alleged a retaliation claim because he has not

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sufficiently alleged Carney took any adverse action because of his protected conduct (filing

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a tort claim), only that he threatened to do so. “[A] threat to retaliate does not violate
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Section 1983 if the person making the threat never follows through.” Hardy v. 3 Unknown

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Agents, 690 F. Supp. 2d 1074, 1103 (C.D. Cal. 2010) (citing Gaut v. Sunn, 810 F.3d 923,

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925 (9th Cir. 1987)) (finding that prisoner’s allegation that he was threatened with bodily

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harm if he pursued legal redress for beatings did not state a Section 1983 claim).

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Moreover, “[c]ausation is, of course, a required element of a § 1983 claim.” Estate

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of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into causation

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must be individualized and focus on the duties and responsibilities of each individual

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defendant whose acts or omissions are alleged to have caused a constitutional deprivation.”

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Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362,

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370-71 (1976).) “Because vicarious liability is inapplicable to . . . §1983 suits, a plaintiff

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must plead that each government-official defendant, through the official’s own individual

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actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; see also Jones v. Community

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Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro

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se plaintiff must “allege with at least some degree of particularity overt acts which

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defendants engaged in” in order to state a claim). Here, Plaintiff has not plausibly alleged

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what “adverse action” Carney took against him in retaliation for his protected conduct.

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Iqbal, 556 U.S. at 678.

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E.

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For all these reasons, the Court finds that Plaintiff has failed to state an Eighth

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Amendment or a Due Process claim upon which Section 1983 relief can be granted and

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dismisses those claims in their entirety pursuant to 28 U.S.C § 1915(e)(2)(B) and

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§ 1915A(b). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. Plaintiff’s Eighth

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Amendment and Due Process claims are dismissed without leave to amend because further

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amendment would be futile. See Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116

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(9th Cir. 2014) (“‘Futility of amendment can, by itself, justify the denial of . . . leave to

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amend.’”) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).) As to Plaintiff’s

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retaliation claim, the Court has provided Plaintiff with “notice of the deficiencies in his

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complaint” and will grant Plaintiff an opportunity to fix them, if he can. See Akhtar v.

Leave to Amend

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Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261

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(9th Cir. 1992)).

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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. 3).
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DIRECTS the Warden of the MCC, or his designee, to collect from Plaintiff’s

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trust account the $350 filing fee owed in this case by garnishing monthly payments from

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

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

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

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CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS

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ACTION.

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3.

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

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Williams, II, Warden, Metropolitan Correctional Center, 880 Union Street, San Diego, CA

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92101.

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4.

DISMISSES the Plaintiff’s Eight Amendment and Due Process claims in

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their entirety without leave to amend based on Plaintiff’s failure to state a claim upon which

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relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). The Court

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finds further amendment would be futile. See Gonzalez v. Planned Parenthood, 759, F.3d

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1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can, by itself, justify the denial

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of . . . leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).)

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5.

DISMISSES Plaintiff’s retaliation claim based on Plaintiff’s failure to state a

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claim upon which relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

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1915A(b)(1).

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6.

GRANTS Plaintiff leave to amend his retaliation claim. Any such amended

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pleading must be filed within forty-five (45) days of the date of this Order. Plaintiff’s

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Amended Complaint must be complete by itself without reference to his original pleading.
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Defendants not named and any claim not re-alleged in his Amended Complaint will be

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considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner

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& Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the

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original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims

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dismissed with leave to amend which are not re-alleged in an amended pleading may be

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“considered waived if not repled.”).

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If Plaintiff fails to file an Amended Complaint within the time provided, the Court

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will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state

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a claim upon which relief can be granted pursuant to 28 U.S.C. Section 1915(e)(2)(B) and

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Section 1915A(b), and his failure to prosecute in compliance with a court order requiring

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amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

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not take advantage of the opportunity to fix his complaint, a district court may convert the

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dismissal of the complaint into dismissal of the entire action.”).

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5.

DIRECTS the Clerk of Court to mail Plaintiff a copy of the court approved

civil rights complaint form.
IT IS SO ORDERED.

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Dated: May 10, 2022

_________________________________________
Hon. Larry Alan Burns
United States District Judge

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