Brown v. Gore

Opinion

1 2 3 4 5 6 7 10 11 DOUGLAS WAYNE BROWN, Case No.: 22-cv-00348-MMA (WVG) Inmate Booking No. 21148122, 12 ORDER GRANTING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AND DISMISSING COMPLAINT 14 FOR FAILURE TO STATE A CLAIM

15 PURSUANT TO 28 U.S.C. § 1915(e)(2) WILLIAM D. GORE, San Diego County & 28 U.S.C. § 1915A(b) 16 Sheriff, 17 Defendants. [Doc. No. 4] 18 19 20 Douglas Wayne Brown (“Plaintiff”), currently housed at the South Bay Detention 21 Facility (“SBDF”) located in Chula Vista in San Diego, California and proceeding pro se, 22 has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1 23 (“Compl.”). In addition, Plaintiff filed additional pages, which appear to be part of his 24 Complaint and as such the Court will consider them in conducting the required sua 25 sponte screening. See Doc. No. 5. Plaintiff has also filed a Motion to Proceed In Forma 26 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). Doc. No. 4. For the following 27 reasons, the Court GRANTS Plaintiff’s Motion to Proceed IFP and DISMISSES his 28 Complaint. 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, 7 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in 8 “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams 9 v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their action is 10 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 11 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly 18 balance in the account for the past six months, whichever is greater, unless the prisoner 19 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 20 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 21 preceding month’s income, in any month in which his account exceeds $10, and forwards 22 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 23 § 1915(b)(2); Bruce, 136 S. Ct. at 629. 24 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. 27 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 28 1 In support of his IFP Motion, Plaintiff has submitted a copy of his Inmate 2 Statement. See Doc. No. 5; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 3 F.3d at 1119. These statements show that Plaintiff had a $1.12 balance at the time of 4 filing. See Doc. No. 5. Based on this accounting, the Court GRANTS Plaintiff’s Motion 5 to Proceed IFP and assesses his initial partial filing fee to be $16.00 pursuant to 28 U.S.C. 6 § 1915(b)(1). 7 The Court will direct the Watch Commander, or their designee, to collect an initial 8 partial filing fee only if sufficient funds are available in Plaintiff’s account at the time this 9 Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a 10 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 11 judgment for the reason that the prisoner has no assets and no means by which to pay the 12 initial partial filing fee”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 13 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP 14 case based solely on a “failure to pay . . . due to the lack of funds available to him when 15 payment is ordered”). The balance of the $350 total fee owed in this case must be 16 collected by the agency having custody of the prisoner and forwarded to the Clerk of the 17 Court pursuant to 28 U.S.C. § 1915(b)(2). 18 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b) 19 A. Standard of Review 20 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a 21 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 22 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 23 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 24 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 25 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 26 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 27 the targets of frivolous or malicious suits need not bear the expense of responding.’” 28 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 4 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 5 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 7 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, 8 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 9 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 11 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 12 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 13 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 14 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 15 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 16 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 17 (9th Cir. 2009). 18 B. Plaintiff’s Factual Allegations 19 Plaintiff alleges that he was “arrested [on] December 8, 2021” and he has not 20 received his “heart meds.” Compl. at 2. Plaintiff also claims to be “allergic” to the 21 Covid-19 vaccine. Id. In addition, he claims he has been denied the right to a “fast and 22 speedy trial” and his counsel will “not investigate case until April 1, 2022.” Doc. No. 5 23 at 1–2. 24 C. 42 U.S.C. § 1983 25 “Section 1983 creates a private right of action against individuals who, acting 26 under color of state law, violate federal constitutional or statutory rights.” Devereaux 27 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 28 substantive rights, but merely provides a method for vindicating federal rights elsewhere 1 conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks 2 and citations omitted). “To establish § 1983 liability, a plaintiff must show both 3 (1) deprivation of a right secured by the Constitution and laws of the United States, and 4 (2) that the deprivation was committed by a person acting under color of state law.” Tsao 5 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 6 D. Younger Abstention 7 As an initial matter, Plaintiff appears to challenge the basis for his current 8 detention and ongoing state criminal proceedings. To the extent that Plaintiff is currently 9 in the process of facing state criminal charges and requests that this Court intervene in the 10 state court’s decisions, the Court declines to do so. A federal court cannot interfere with 11 ongoing state criminal proceedings by granting injunctive relief absent a showing of the 12 state’s bad faith or harassment, or a showing that the statute challenged is “flagrantly and 13 patently violative of express constitutional prohibitions.” Younger v. Harris, 401 U.S. 14 37, 46, 53–54 (1971). 15 Younger abstention is appropriate if four criteria are met: (1) state judicial 16 proceedings are ongoing; (2) the state proceedings implicate an important state interest; 17 (3) the state proceedings offer an adequate opportunity to litigate federal questions; and 18 (4) the federal court action would “enjoin the proceeding or have the practical effect of 19 doing so, i.e., would interfere with the state proceeding in a way that Younger 20 disapproves.” San Jose Silicon Valley Chamber of Commerce PAC v. City of San Jose, 21 546 F.3d 1087, 1092 (9th Cir. 2008). Here, because it appears that Plaintiff has ongoing 22 criminal proceedings in state court, abstention as to Plaintiff’s claims pursuant to the 23 Younger doctrine is warranted. 24 E. Medical Claims 25 Plaintiff also alleges that he been denied his medication that he takes for an 26 unspecified heart condition. While this is a serious concern, based on Plaintiff’s lack of 27 factual allegations and failure to identify specific individuals whom he claims is 28 responsible for the purported failure to receive his medication, the Court finds that he 1 fails to state a claim upon which relief may be granted. Plaintiff does not name any 2 individual as responsible for alleged constitutional violations with the exception of 3 Sheriff William Gore. See Compl. at 1. 4 However, there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer 5 v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). “Because vicarious liability is 6 inapplicable to . . . § 1983 suits, [Plaintiff] must plead that each government-official 7 defendant, through the official’s own individual actions, has violated the Constitution.” 8 Iqbal, 556 at 676; see also Jones v. Community Redevelopment Agency of City of Los 9 Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at 10 least me degree of particularity overt acts which defendants engaged in” in order to state 11 a claim). “A plaintiff must allege facts, not simply conclusions, t[o] show that [each 12 defendant] was personally involved in the deprivation of his civil rights.” Barren 13 v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Estate of Brooks ex rel. 14 Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a 15 required element of a § 1983 claim.”). 16 As currently pleaded, Plaintiff’s Complaint offers no factual detail from which the 17 Court might reasonably infer a plausible inadequate medical care claim as to Defendant 18 Gore. Instead, Plaintiff only lists “San Diego County Sheriff William D. Gore” as the 19 sole Defendant. Compl. at 1. But Fed. R. Civ. P. 8 “demands more than an unadorned, 20 the-defendant-unlawfully-harmed-me accusation,” and in order “[t]o survive a motion to 21 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a 22 claim for relief that is plausible on its face.’” Iqbal, 662 U.S. at 678 (quoting Twombly, 23 550 U.S. at 555, 570). 24 Moreover, supervisory officials may only be held liable under § 1983 if Plaintiff 25 alleges their “personal involvement in the constitutional deprivation, or . . . a sufficient 26 causal connection between the supervisor’s wrongful conduct and the constitutional 27 violation.” Keates v. Koile, 883 F.3d 1228, 1242–43 (9th Cir. 2018); Starr v. Baca, 652 28 F.3d 1202, 1207 (9th Cir. 2011). P laintiff makes no such allegations in his Complaint. 1 Therefore, the Court DIMISSES Defendant Gore sua sponte based on Plaintiff’s failure 2 to state a claim against him. See 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 3 F. Leave to Amend 4 Accordingly, the Court finds Plaintiff’s Complaint, together with the additional 5 pages he filed, fails to state a claim against any named Defendant, and therefore, it is 6 subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) 7 and § 1915A(b)(1). See Lopez, 203 F.3d at 1126–27; Rhodes, 621 F.3d at 1004. 8 Because he is proceeding pro se, however, the Court having now provided him 9 with “notice of the deficiencies in his complaint,” will also grant Plaintiff an opportunity 10 to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik 11 v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). If Plaintiff chooses to file an amended 12 pleading, he must allege more specific factual allegations regarding his claims. 14 For the reasons explained, the Court GRANTS Plaintiff’s Motion to Proceed IFP 15 pursuant to 28 U.S.C. § 1915(a) and DIRECTS the Watch Commander of the SBDF, or 16 their designee, to collect from Plaintiff’s inmate trust account the $350 filing fee owed in 17 this case by garnishing monthly payments in an amount equal to twenty percent (20%) of 18 the preceding month’s income and forwarding those payments to the Clerk of the Court 19 each time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). 21 NUMBER ASSIGNED TO THIS ACTION. The Court DIRECTS the Clerk of the 22 Court to serve a copy of this Order on Watch Commander, South Bay Detention Facility, 23 500 Third Avenue, Chula Vista, California 91910. 24 The Court further DISMISSES Plaintiff’s Complaint for failure to state a claim 25 upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) 26 and GRANTS him forty-five (45) days leave from the date of this Order in which to file 27 an Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 28 Amended Complaint must be complete by itself without reference to his original 1 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 2 || will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 3 || Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 4 || supersedes the original.’”’); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 5 || (noting that claims dismissed with leave to amend which are not re-alleged in an 6 |}amended pleading may be “considered waived if not repled.”’). 7 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 8 || will enter a final Order dismissing this civil action based both on Plaintiff's failure to 9 || state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 10 1915A(b), and his failure to prosecute in compliance with a court order requiring 11 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (‘If a plaintiff 12 || does not take advantage of the opportunity to fix his complaint, a district court may 13 convert the dismissal of the complaint into dismissal of the entire action.”). The Court 14 || DIRECTS the Clerk of Court to mail Plaintiff a court approved civil rights complaint 15 || form for his use in amending. 17 || Dated: May 3, 2022 18 [lhe □□ (hihler 19 HON. MICHAEL M. ANELLO 0 United States District Judge 21 22 23 24 25 26 27 28 9