Burke v. City of San Diego

• Court: District Court, S.D. California
• Decided: July 1, 2024
• Docket: 3:24-cv-00182
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 GREG BURKE, Case No.: 24-cv-00182-WQH-DTF

Plaintiff, 14 ORDER v. 15 16 CITY OF SAN DIEGO; STATE OF CALIFORNIA; and UNITED 17 STATES OF AMERICA, 18 Defendants. 19 20 HAYES, Judge: 21 I. BACKGROUND 22 On February 15, 2024, Plaintiff Greg Burke (“Plaintiff”), proceeding pro se, initiated 23 this action by filing a Complaint. (ECF No. 1.) The same day, Plaintiff filed an Application 24 to Proceed In Forma Pauperis (“IFP”) (ECF No. 2) and a Request for Appointment of 25 Counsel (ECF No. 3). 26 On April 4, 2024, the Court issued an Order denying Plaintiff’s Application to 27 Proceed IFP. (ECF No. 4.) 28 On May 1, 2024, Plaintiff filed a renewed Application to Proceed IFP. (ECF No. 6.) 1 II. APPLICATIOIN TO PROCEED IFP 2 All parties instituting a civil action in a district court of the United States, other than 3 a petition for writ of habeas corpus, must pay a filing fee of $405. See 28 U.S.C. § 1914(a); 4 S.D. Cal. CivLR 4.5. An action may proceed despite a party’s failure to pay only if the 5 party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. 6 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To proceed in forma pauperis is a privilege 7 not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). “An affidavit in support 8 of an IFP application is sufficient where it alleges that the affiant cannot pay the court costs 9 and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 10 Cir. 2015). “[A] plaintiff seeking IFP status must allege poverty ‘with some particularity, 11 definiteness and certainty.’” Id. (quoting United States v. McQuade, 647 F.2d 938, 940 (9th 12 Cir. 1981)). 13 In Plaintiff’s Application to Proceed IFP, Plaintiff states that his total monthly 14 income is $1,202.92, and that his total monthly expenses, including rent/home-mortgage 15 payment, utilities, food, clothing, transportation, recreation, insurance, and credit card 16 payments, is $1,201.00. (ECF No. 6 at 1–5.) Based on Plaintiff’s representations, the Court 17 finds that Plaintiff cannot afford to pay the filing fee in this case. Plaintiff’s Application to 18 Proceed IFP is granted pursuant to 28 U.S.C. § 1915(a). 19 III. REQUEST FOR APPOINTMENT OF COUNSEL 20 Plaintiff requests that the Court appoint counsel because he has “spent considerable 21 time in contacting various attorneys to assist [him] with [his] case,” and “[i]n each instance, 22 [he] has been declined assistance.” (ECF No. 3 at 2.) However, there is no constitutional 23 right to counsel in a civil case. See Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981). 24 While district courts have some limited discretion to “request” that an attorney represent 25 an indigent civil litigant, this discretion may only be exercised under “exceptional 26 circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004); see 27 also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional 28 circumstances requires “an evaluation of the likelihood of the plaintiff’s success on the 1 merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the 2 complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. 3 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). In weighing the relevant factors in this 4 case, the Court finds that there are no exceptional circumstances warranting appointment 5 of counsel in this matter at this time. Plaintiff’s Request for Appointment of Counsel is 6 denied. 7 IV. SUA SPONTE SCREENING 8 A. Legal Standard 9 Because Plaintiff is proceeding IFP, his Complaint requires a pre-answer screening 10 pursuant to 28 U.S.C. § 1915(e)(2). Under this statute, the Court must sua sponte dismiss 11 an IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, 12 or seeks damages from defendants who are immune. See Williams v. King, 875 F.3d 500, 13 502 (9th Cir. 2017). “The purpose of [screening] is ‘to ensure that the targets of frivolous 14 or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 15 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 16 680, 681 (7th Cir. 2012)). 17 “The standard for determining whether a plaintiff has failed to state a claim upon 18 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 19 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 20 1108, 1112 (9th Cir. 2012). Federal Rules of Civil Procedure 8 and 12(b)(6) require a 21 complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief 22 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 23 quotations omitted). Detailed factual allegations are not required, but “[t]hreadbare recitals 24 of the elements of a cause of action, supported by mere conclusory statements, do not 25 suffice.” Id. “Determining whether a complaint states a plausible claim for relief [is] ... a 26 context-specific task that requires the reviewing court to draw on its judicial experience 27 and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the 28 defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 1 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 2 However, “courts must construe pro se pleadings liberally.” Resnick v. Hayes, 213 F.3d 3 443, 447 (9th Cir. 2000). 4 B. Allegations of the Complaint 5 “The matters in this case arose during the Black Lives Matter[] protests and riots at 6 which time the resident living directly below the Plaintiff in downtown San Diego began 7 setting off improvised explosive devices in the form of ‘pressure bombs.’” (ECF No. 1 at 8 2.) These “pressure bombs” were detonated “10-15 feet from (Plaintiff’s) bed with only 9 the floor in between.” Id. “The impacts were strong enough to shake the building for 2-3 10 seconds.” Id. “Plaintiff did not know what these explosions were at the time.” Id. 11 Plaintiff called 911 to report the blasts, but “it appeared that the reports were not 12 taken seriously[.]” Id. “Rather than immediately sending out [p]olice to investigate, 911 13 operators asked if there was a fire,” and since “there did not appear to be any accompanying 14 fire, no response occurred.” Id. 15 “Approximately [one] week later, after multiple reports had been made due to the 16 continuing explosions, whatever was going off in the apartment below then did cause a 17 fire, as Plaintiff then had smoke entering his unit after another blast.” Id. “Plaintiff again 18 called 911, this time reporting there was a fire, and San Diego Fire Emergency breached 19 the unit below and found that the individual was placing sealed, pressurized metal cans of 20 chemicals on the stove and heating them up to the point of detonation.” Id. “The occupant 21 had apparently refused to open the door after multiple building security checks based on 22 the Plaintiff’s report to them.” Id. “Plaintiff was informed of the chemical explosives by 23 security after the fire[.]” Id. 24 According to the “emergency fire report,” which Plaintiff obtained over a year later, 25 “the occupant was placed on a 5150 Psychiatric hold for danger to self and others” after 26 the incident. Id. at 2–3. “As per the timing and frequency of the explosions, Plaintiff 27 assumes that the occupant had additional cans of chemicals ‘on deck’ on the stovetop 28 burners ready to be heated up again when responders breached the apartment.” Id. at 3. “At 1 that time the explosions were occurring every 3-4 hours, causing the Plaintiff additional 2 harm and distress once the effects had begun to wear off from the previous impact.” Id. 3 “Approximately [one] month after the fire, the explosions started again and Plaintiff 4 once again contacted 911 emergency, this time informing them of the previous fire 5 incident.” Id. “Plaintiff was again asked if there was a fire.” Id. “[I]t appeared that [p]olice 6 had no knowledge of the prior incidents, despite approximately 10-12 reports having been 7 made over the past 5 weeks.” Id. “During the [p]olice interaction Plaintiff informed them 8 of the prior history,” that “improved explosive devices were found in the last fire incident,” 9 and “that the occupant had already been apprehended on a 5150 Psychiatric hold.” Id. 10 Police responded by stating “that there was no record of any prior arrest or apprehension 11 of the occupant for the fire incident.” Id. “This was during the Black Lives Matter protests 12 and Plaintiff received the impression that there was some bias going on in that the 13 individual living in the unit below was a black individual[.]” Id. “Plaintiff ended up having 14 to move out of his residence to protect himself[.]” Id. “As a result of these issues, Plaintiff 15 has suffered a Traumatic Brain Injury and suffers frequent seizures that have not subsided 16 after [three] years since the initial incidents.” Id. at 9. 17 Plaintiff filed a claim with San Diego Risk Management, which was denied. Plaintiff 18 then filed a Complaint in San Diego Superior Court, and the government filed a demurrer 19 on the ground that it was immune. “During this time, some of the case information in a 20 similar case, called ‘Heitmann vs. City of San Diego’ was made public in the local news, 21 stating that the Plaintiffs in (Heitmann) were accusing the City of San Diego of 22 [n]egligence due to the fact that they ‘did not take all information into account’ … when 23 they were asked to place (Heitmann) on a 5150.” Id. at 5. “San Diego Superior Court found 24 in favor of the Plaintiff and overruled the City of San Diego’s [d]emurrer.” Id. “[T]he 25 specific statutes that were cited in the Heitmann media news article … were later redacted 26 and[/]or removed from the internet.” Id. at 6. “Despite this, San Diego Superior Court 27 sustained the demurrer in Plaintiff’s case[.]” Id. at 7. “By sustaining the demurrer in Burke 28 vs. City of San Diego … and overruling the demurrer in Heitmann vs. City of San Diego 1 …, San Diego Superior Court has violated Plaintiff Burke’s Constitutionally granted civil 2 right to equal protection under the law.” Id. at 8. 3 Plaintiff appears to bring claims against the San Diego Superior Court, Judge 4 Gregory Pollack,1 the City of San Diego, the State of California, and the United States of 5 America. Plaintiff brings claims pursuant to Cal. Gov’t Code § 815.6 and the Equal 6 Protection Clause. Plaintiff seeks unlimited damages “as relief for his diminished quality 7 of life, and future potential earnings.” Id. at 15. 8 C. Discussion 9 1. Federal Law Claims 10 42 U.S.C. § 1983 “creates a private right of action against individuals who, acting 11 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 12 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001); see 42 U.S.C. § 1983 (providing a cause of 13 action against [e]very person who, under color of any statute, ordinance, regulation, 14 custom, or usage, of any State ... subjects, or causes to be subjected, any citizen ... to the 15 deprivation of any rights, privileges, or immunities secured by the Constitution and 16 laws....”). “The purpose of § 1983 is to deter state actors from using the badge of their 17 authority to deprive individuals of their federally guaranteed rights and to provide relief to 18 victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992). Section 1983 “is 19 not itself a source of substantive rights, but merely provides a method for vindicating 20 21 22 23 1 Plaintiff only names the City of San Diego, State of California, and the United States of America as Defendants in the caption of the Complaint, but includes references to the San Diego Superior Court and 24 Judge Pollack in the body of the Complaint. Federal Rule of Civil Procedure 10 requires a plaintiff to 25 name all defendants in the caption of the complaint. Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the parties.”). “[A] party may be properly in a case if the allegations in the body of the complaint 26 make it plain that the party is intended as a defendant.” Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082, 1085 (9th Cir. 1983) (citation omitted). Given the Court’s obligation to construe pro se 27 pleadings liberally, the Court interprets the Complaint as alleging claims against the San Diego Superior Court and Judge Pollack. 28 1 federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) 2 (quotations and citations omitted). 3 Plaintiff alleges that the San Diego Superior Court and Judge Pollack violated his 4 right to equal protection when Judge Pollack “found in favor of the Heitmann Plaintiff in 5 over[r]uling the City of San Diego [d]emurrer while sustaining the City of San Diego’s 6 demurrer in Plaintiff’s case.” (ECF No. 1 at 11.) “It is well established that state judges are 7 entitled to absolute immunity for their judicial acts.” Swift v. California, 384 F.3d 1184, 8 1188 (9th Cir. 2004) (citing Pierson v. Ray, 386 U.S. 547, 553–55 (1967)). Judicial 9 immunity can only be overcome in two circumstances. Mireles v. Waco, 502 U.S. 9, 11– 10 12 (1991) (citations omitted). “First, a judge is not immune for liability for nonjudicial 11 actions.” Id. To determine whether an action is judicial, a court must look to “the nature of 12 the act itself,” i.e., “whether it is a function normally performed by a judge” and “whether 13 [the parties] dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 14 349, 362 (1978). “Second, a judge is not immune from actions, though judicial in nature, 15 taken in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 12. However, “[a] 16 judge will not be deprived of immunity because the action he took was in error, was done 17 maliciously, or was in excess of his authority.” Stump, 435 U.S. at 356. “[T]he scope of the 18 judge’s jurisdiction must be construed broadly.” Id. 19 Here, Plaintiff asserts an equal protection claim against the San Diego Superior 20 Court and Judge Pollack based on Judge Pollack’s decision to sustain the government’s 21 demurrer in Plaintiff’s case in the San Diego Superior Court. Judge Pollack’s actions are 22 normal judicial functions undertaken in state court proceedings and arose from interactions 23 with Plaintiff in state court. Plaintiff challenges actions which are judicial in nature and 24 taken within the jurisdiction of the California state courts. Therefore, Plaintiff’s claims for 25 money damages against the San Diego Superior Court and Judge Pollack must be dismissed 26 sua sponte pursuant to 28 U.S.C. § 1915A(b)(2) due to their absolute immunity. See Chavez 27 v. Robinson, 817 F.3d 1162, 1167‒68 (9th Cir. 2016) (noting that 28 U.S.C. 28 1 § 1915(e)(2)(B)(iii) requires the court to dismiss an action “at any time” if it “seeks 2 monetary relief from a defendant who is immune from such relief”). 3 Additionally, the Eleventh Amendment prohibits suits for damages or injunctive 4 relief against the state brought in federal court, unless the state has waived its immunity or 5 Congress has specifically overridden sovereign immunity. See Will v. Mich. Dep’t of State 6 Police, 491 U.S. 58, 70 (1989) (holding that “‘arms of the State’ for Eleventh Amendment 7 purposes” are not liable under § 1983). The Eleventh Amendment bars a § 1983 damages 8 claim against a county’s superior court because it is considered an arm of the state for 9 Eleventh Amendment purposes. See Greater L.A. Council on Deafness, Inc. v. Zolin, 812 10 F.2d 1103, 1110 (9th Cir. 1987); Simmons v. Sacramento Cnty. Superior Court, 318 F.3d 11 1156, 1161 (9th Cir. 2003) (“Plaintiff cannot state a claim against the Sacramento County 12 Superior Court (or its employees), because such suits are barred by the Eleventh 13 Amendment.”). Thus, the Eleventh Amendment additionally bars suit under § 1983 against 14 the San Diego Superior Court. 15 To the extent Plaintiff brings an equal protection claim against the State of 16 California, this claim is also barred by the Eleventh Amendment. “The State of California 17 has not waived its Eleventh Amendment immunity with respect to claims brought under 18 § 1983 in federal court, and the Supreme Court has held that § 1983 was not intended to 19 abrogate a State’s Eleventh Amendment immunity.” Dittman v. California, 191 F.3d 1020, 20 1025–26 (9th Cir. 1999) (internal citations and quotation marks omitted). 21 To the extent Plaintiff brings a substantive due process claim against the City of San 22 Diego based on its failure to protect Plaintiff from harm, Plaintiff fails to state a claim. 23 Although the Eleventh Amendment bars a § 1983 damages claim against the state, it does 24 not bar suits against cities or similar municipal entities. See Mt. Healthy Sch. Dist. Bd. of 25 Educ. v. Doyle, 429 U.S. 274, 280 (1977); see also Zolin, 812 F.2d at 1110 (holding that 26 the Eleventh Amendment did not bar the action against the county even though it barred 27 action against the county’s superior court as an arm of the state). A municipal entity is 28 liable under § 1983 only if “a policy, practice, or custom of the entity can be shown to be 1 a moving force behind a violation of constitutional rights.” Dougherty v. City of Covina, 2 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 3 (1978)); see Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (“The custom must be so 4 ‘persistent and widespread’ that it constitutes a ‘permanent and well settled city policy.’ … 5 Liability for improper custom may not be predicated on isolated or sporadic incidents; it 6 must be founded upon practices of sufficient duration, frequency and consistency that the 7 conduct has become a traditional method of carrying out policy.” (quoting Monell, 436 8 U.S. at 691)). Here, Plaintiff does not allege that a policy, practice, or custom was a 9 “moving force” in the alleged constitutional injuries. Plaintiff fails to assert in the 10 Complaint that the City’s alleged failure to protect Plaintiff was pursuant to a “policy, 11 practice, or custom” that was “so ‘persistent and widespread’ that it constitutes a 12 ‘permanent and well settled city policy.’” Trevino, 99 F.3d at 918 (citation omitted). The 13 Court finds that Plaintiff fails to state a claim for relief for municipal liability under § 1983 14 against the City of San Diego. 15 To the extent Plaintiff brings an equal protection or due process claim against the 16 United States, Plaintiff must state a claim pursuant to Bivens v. Six Unknown Named Agents 17 of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Under Bivens and its progeny, in 18 limited situations which do not appear to be present here, federal actors may be sued for 19 damages in their individual capacities to remedy violations of certain constitutional rights. 20 See, e.g., id. at 397 (creating the cause of action for Fourth Amendment violations); Davis 21 v. Passman, 442 U.S. 228, 230–31 (1979) (extending the Bivens remedy to violations of 22 the Fifth Amendment Due Process Clause); Carlson v. Green, 446 U.S. 14, 16–18 (1980) 23 (extending the Bivens remedy to violations of the Eighth Amendment Cruel and Unusual 24 Punishment Clause); Egbert v. Boule, 596 U.S. 482, 483 (2022) (“[R]ather than dispense 25 with Bivens altogether,” the Supreme Court has “emphasized that recognizing a cause of 26 action under Bivens is ‘a disfavored judicial activity.’”). Plaintiff does not allege any facts 27 as to how the United States or its employees violated Plaintiff’s substantive due process or 28 equal protection rights. 1 Accordingly, Plaintiff’s federal claims are sua sponte dismissed without prejudice 2 for failure to state a claim on which relief may be granted pursuant to 28 U.S.C. § 3 1915(e)(2)(B)(ii). 4 2. State Law Claims 5 Plaintiff additionally brings a state law claim pursuant to Cal. Gov’t Code § 815.6. 6 The federal supplemental jurisdiction statute provides: 7 [I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that 8 are so related to claims in the action within such original jurisdiction that they 9 form part of the same case or controversy under Article III of the United States Constitution. 10

28 U.S.C. § 1367(a). “The district courts may decline to exercise supplemental jurisdiction 11 over a claim under subsection (a) if ... the district court has dismissed all claims over which 12 it has original jurisdiction....” 28 U.S.C. § 1367(c)(3). Because the Court has found none 13 of Plaintiff’s federal claims adequately state a plausible federal claim for relief, it declines 14 to exercise supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. § 15 1367(c). 16 V. LEAVE TO AMEND 17 As discussed, the Court sua sponte dismisses the federal law claims pursuant to 28 18 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), and declines to exercise supplemental 19 jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(c). Because Plaintiff is 20 proceeding pro se, the Court, having provided him “notice of the deficiencies in his 21 complaint,” will grant him another chance to fix them. Akhtar v. Mesa, 698 F.3d 1202, 22 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 23 Plaintiff is also reminded that an amended complaint must be a complete document in and 24 of itself. See S.D. Cal. CivLR 15.1(a) (stating that an amended pleading “must be complete 25 in itself without reference to the superseded pleading”). 26 / / / 27 / / / 28 1 |} VI. CONCLUSION 2 IT IS HEREBY ORDERED that the Application to Proceed IFP (ECF No. 6) is 3 || granted. 4 IT IS FURTHER ORDERED that the Request for Appointment of Counsel (ECF 5 || No. 3) is denied without prejudice. 6 IT IS FURTHER ORDERED that the Complaint is sua sponte dismissed without 7 || prejudice. No later than thirty (30) days from the date of this Order, Plaintiff may file an 8 ||amended complaint. Ifno amended complaint is filed, the Court will order the Clerk of the 9 || Court to close this case. 10 || Dated: July 1, 2024 itt Zz. Ma 11 Hon. William Q. Hayes 2 United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28