Braggs v. San Diego Sheriff's Department

Filing 3

ORDER: (1) Granting Motion To Proceed In Forma Pauperis, (2) Dismissing Complaint For Failure To State A Claim Pursuant To 28 U.S.C. 1915(E)(2)(B) & 1915a(B) re #2 . The Watch Commander at the George Bailey Detention Facility, or their designee is directed to collect from Plaintiffs trust account an initial filing fee of $50.25, if those funds are available at the time of this Order. 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). Signed by District Judge Ruth Bermudez Montenegro on 10/28/2024. (All non-registered users served via U.S. Mail Service)(mef) (jms).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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MICHAEL THOMAS LEKEITH
BRAGGS, BOOKING #24723149,

ORDER

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Case No.: 3:24-cv-1772-RBM-VET

Plaintiff,
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS

vs.

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SAN DIEGO SHERIFF’S
DEPARTMENT,

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

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Defendant.

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On October 3, 2024, Plaintiff Michael Thomas LeKeith Braggs (“Plaintiff”), an

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inmate at the George Bailey Detention Facility in Santee, California, proceeding pro se,

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filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 alleging violations of his First,

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Fourth, Eighth, and Fourteenth Amendment rights. (Doc. 1 at 1, 3.) Plaintiff claims that

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he was subjected to the excessive use of force while being booked into the San Diego

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Central Jail. (Id. at 2–5.) Plaintiff has also filed a Motion to Proceed in Forma Pauperis

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(“IFP Motion”). (Doc. 2.)

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I.

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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$405, consisting of a $350 statutory fee plus an additional administrative fee of $55,

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although the administrative fee does not apply to persons granted leave to proceed IFP.

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See 28 U.S.C. § 1914(a); Judicial Conference Schedule of Fees, District Court Misc. Fee

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Schedule, § 14 (eff. Dec. 1, 2023). 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) (“Plaintiffs

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normally must pay $350 to file a civil complaint in federal district court, 28 U.S.C. §

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1914(a), but 28 U.S.C. § 1915(a)(1) allows the district court to waive the fee, for most

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individuals unable to afford it, by granting IFP status.”).

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A prisoner seeking leave to proceed IFP must submit a “certified copy of the trust

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fund account statement (or institutional equivalent) for … the 6-month period immediately

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preceding the filing of the complaint[.]” 28 U.S.C. § 1915(a)(2); see also Andrews v. King,

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398 F.3d 1113, 1119 (9th Cir. 2005) (“[P]risoners must demonstrate that they are not able

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to pay the filing fee with an affidavit and submission of their prison trust account

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records[.]”). From the certified trust account statement, the Court assesses an initial

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

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or (b) the average monthly balance in the account for the past six months, whichever is

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greater, unless the prisoner has insufficient assets. See 28 U.S.C. § 1915(b)(1), (4); Bruce

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v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP must pay any remaining

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balance in “increments” or “installments,” regardless of whether their action is ultimately

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dismissed. See 28 U.S.C. § 1915(b)(1), (2); Bruce, 577 U.S. at 84.

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In support of his IFP motion, Plaintiff has submitted copies of his Prison Certificate,

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Trust Account Withdrawal Authorization, and Account Activity. (Doc. 2 at 4–6.) The

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documents show that Plaintiff has an average monthly balance of $251.25, average

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monthly deposits of $251.25, and an available balance of $25.93. (Id. at 4, 6.)

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Based on this documentation, the Court GRANTS Plaintiff’s IFP Motion and

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assesses an initial partial filing fee of $50.25. See Taylor v. Delatoore, 281 F.3d 844, 850
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(9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing

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dismissal of a prisoner’s IFP case based solely on a “failure to pay … due to the lack of

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funds available to him when payment is ordered.”). However, this initial fee only need be

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collected if sufficient funds are available in Plaintiff’s account at the time of this Order.

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

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

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

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Pursuant to 28 U.S.C. § 1915(b)(2), the agency having custody of Plaintiff must forward

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payments to the Clerk of the Court until the $350 statutory fee is paid in full.

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II.

SCREENING PURSUANT TO 28 U.S.C. §§ 1915(E)(2) & 1915A(B)

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

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screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Rhodes v. Robinson,

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621 F.3d 1002, 1004 (9th Cir. 2010) (citing 28 U.S.C. § 1915A(a)). The Court must

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dismiss sua sponte a prisoner’s IFP complaint, or any portion of it, that is frivolous,

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malicious, fails to state a claim on which relief may be granted, or seeks monetary relief

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

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2000) (en banc) (citing 28 U.S.C. § 1915(e)(2)).

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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 § 1915A screening “incorporates the familiar standard applied in the

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context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule

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12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state

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a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining

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whether a complaint states a plausible claim for relief [is] a context-specific task that

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requires the reviewing court to draw on its judicial experience and common sense.” Id. at
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679.

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Here, Plaintiff bring a claim for excessive force pursuant to 42 U.S.C. § 1983. (Doc.

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1 at 1–2.) Title 42 U.S.C. § 1983 “creates a private right of action against individuals

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who, acting under color of state law, violate federal constitutional or statutory rights.”

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Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (emphasis added). “To establish

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§ 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the

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

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a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128,

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1138 (9th Cir. 2012) (emphasis added).

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Here, the only named defendant in Plaintiff’s Complaint is the San Diego Sheriff’s

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Department. (Doc. 1 at 2.) Plaintiff cannot state a § 1983 claim against the San Diego

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Sheriff’s Department because it is not a “person” within the meaning of § 1983. See

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Johnson v. County of San Diego, 18cv1846-LAB (RBB), 2018 WL 5630503, at *3 (S.D.

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Cal. 2018) (“Local law enforcement departments, like the San Diego Sheriff’s Department,

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municipal agencies, or subdivisions of that department or agency, are not proper defendants

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under § 1983.”).1

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Accordingly, the Court finds that Plaintiff’s Complaint fails to state a plausible claim

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against the only named defendant and is subject to sua sponte dismissal pursuant to 28

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

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621 F.3d at 1004. Because Plaintiff is proceeding pro se, the Court will grant him an

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opportunity to amend his Complaint. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir.

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2015) (“A district court should not dismiss a pro se complaint without leave to amend

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[pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless it is absolutely clear that the deficiencies

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“[A]s a municipality, the County [of San Diego could] be held liable under § 1983—but
only where the Plaintiff alleges facts to show that a constitutional deprivation was caused
by the implementation or execution of ‘a policy statement, ordinance, regulation, or
decision officially adopted and promulgated’ by the County, or a ‘final decision maker’ for
the County.” Johnson, 2018 WL 5630503, at *2. No such allegations exist here.
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of the complaint could not be cured by amendment.”) (internal quotation marks omitted).

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

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enter a final order dismissing this civil action based on Plaintiff’s failure to state a claim

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

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1915A(b)(1), as well as Plaintiff’s failure to prosecute this action in compliance with this

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Order. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not

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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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III.

CONCLUSION

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Based on the foregoing, the Court:

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1.

GRANTS Plaintiff’s IFP Motion (Doc. 2);

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2.

DIRECTS the Watch Commander at the George Bailey Detention Facility,

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or their designee, to collect from Plaintiff’s trust account an initial filing fee of $50.25, if

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those funds are available at the time of this Order, and forward whatever balance remains

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of the $350 owed in monthly payments in an amount equal to twenty 20% of the preceding

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month’s income to the Clerk of the Court each time the amount in the account exceeds $10

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pursuant to 28 U.S.C. § 1915(b)(2);

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3.

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

relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1); and
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GRANTS Plaintiff forty-five (45) days from the date of this Order to file an

Amended Complaint that cures all of the deficiencies identified above.
IT IS SO ORDERED.
DATE: October 28, 2024
_____________________________________
HON. RUTH BERMUDEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE

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