Bynum v. Everett

• Court: District Court, S.D. California
• Decided: August 5, 2021
• Docket: 3:21-cv-00921
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER BYNUM, Case No.: 21-cv-0921-GPC-WVG

12 Plaintiff, ORDER: 13 v. (1) GRANTING MOTION FOR 14 JAMES EVERETT, individual capacity; LEAVE TO PROCEED IN FORMA and SAN DIEGO MESA COLLEGE, 15 PAUPERIS; AND Defendants. 16 (2) SUA SPONTE DISMISSING 17 PLAINTIFF’S COMPLAINT WITH LEAVE TO AMEND 18

19 [ECF Nos. 1, 3] 20 On May 14, 2021, Plaintiff, proceeding pro se, filed a civil rights action pursuant 21 to 42 U.S.C. § 1983 (“Section 1983”). (ECF No. 1.) Plaintiff’s action arises from the 22 allegation that “an officer pull[ed] his weapon on the Plaintiff because he was unfamiliar 23 with what a ‘go-pro’ video camera is.” (Id. at 4.) Plaintiff also filed a Motion to Proceed 24 in forma pauperis (“IFP”). (ECF No. 2.) Based on the reasoning below, the Court 25 GRANTS Plaintiff’s Motion to Proceed IFP but sua sponte DISMISSES without 26 prejudice the entire action for failure to state a claim. 27 1 I. PLAINTIFF’S IFP MOTION 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 $402.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 5 pre-pay the entire fee only if he is granted leave to proceed IFP pursuant to § 1915(a). 6 See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 7 F.3d 1176, 1177 (9th Cir. 1999). 8 The plaintiff must submit an affidavit demonstrating his inability to pay the filing 9 fee, and the affidavit must include a complete statement of the plaintiff’s assets. See 28 10 U.S.C. § 1915(a)(1). “An affidavit . . . is sufficient where it alleges that the affiant cannot 11 pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 12 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. DuPont de Nemours & Co., 335 13 U.S. 331, 339 (1948)). A plaintiff is not required to be “absolutely destitute to enjoy the 14 benefit of the [IFP] statute.” Adkins, 335 U.S. at 339. However, they must still allege 15 poverty “with some particularity, definiteness[,] and certainty.” Escobedo, 787 F.3d at 16 1234 (quoting United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)). 17 Here, the Court grants IFP status to Plaintiff because he has demonstrated an 18 inability to pay the filing fee with some particularity and definiteness. First, Plaintiff lists 19 assets of $48.93 in cash, plus a 1997 Mercedes-Benz E-420 and a 1990 Ford E-250, both 20 of which Plaintiff states carry no value. (ECF No. 2 at 2–3.) While the Court is skeptical 21 that any vehicle will hold a value of $0 and thus warns Plaintiff to be more precise in the 22 future, it nonetheless concurs that liquidating these assets to anything substantive will be 23

24 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 25 fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District 26 Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does not apply to persons granted leave to proceed IFP. See id. 27 1 difficult. In addition, Plaintiff’s monthly expenses of $2,575.00, (see ECF No. 2 at 4,) 2 exceed his monthly income. Plaintiff submitted a declaration reporting that he is 3 currently employed at Custom Marine Electronics with an average monthly income of 4 “$30,000” for the past 12 months and an expected income of $2,500 next month. (ECF 5 No. 2 at 1–2.) The court has an obligation “where the petitioner is pro se, particularly in 6 civil rights cases, to construe the pleadings liberally and to afford the petitioner the 7 benefit of any doubt.” See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting 8 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). Given that Plaintiff’s 9 expected monthly income of $2,500 amounts to $30,000 annually, the Court will afford 10 the Plaintiff the benefit of doubt that he mistakenly stated his annual total income rather 11 than his monthly average income for the past 12 months. (See ECF No. 2 at 1–2.) 12 II. SUA SPONTE REVIEW 13 A complaint filed by any person proceeding IFP is subject to mandatory sua sponte 14 review and dismissal by the Court if it is frivolous or malicious, fails to state a claim 15 upon which relief may be granted, or seeks monetary relief against a defendant immune 16 from such relief. See 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126– 17 27 (9th Cir. 2000); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he 18 provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 19 The standard for reviewing a complaint filed pursuant to the IFP provisions of 28 20 U.S.C. § 1915 is the same as the Federal Rule of Civil Procedure (“Rule”) 12(b)(6) 21 standard for failure to state a claim. See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 22 2012); Lopez, 203 F.3d at 1127. Under Rule 12(b)(6), while a plaintiff need not give 23 “detailed factual allegations,” a plaintiff must plead sufficient facts that, if true, “raise a 24 right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 25 545 (2007). To state a claim upon which relief may be granted “a complaint must 26 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 27 1 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 2 550 U.S. at 547). The Court “must accept as true all allegations of material fact and must 3 construe those facts in the light most favorable to the plaintiff.” Resnick v. Hayes, 213 4 F.3d 443, 447 (9th Cir. 2000). However, the Court may not “supply essential elements of 5 claims that were not initially pled.” Ivey v. Bd. Or Regents of the Univ. of Alaska, 673 6 F.2d 266, 268 (9th Cir. 1982). 7 In the instant dispute, the Complaint seeks to remedy various constitutional and 8 statutory breaches based on the allegation that: (1) “an officer pull[ed] his weapon on the 9 Plaintiff because he was unfamiliar with what a ‘go-pro’ video camera is”; (2) the officer 10 had no reason to do so; (3) the officer was placed on leave after the incident and several 11 news articles documented the incident (with no news articles provided as an attachment 12 or their details summarized); and (4) “the shock and risk of harm . . . was entirely 13 unfounded and not authorized under the law.” (See ECF No. 1 at 4.) 14 Since the above four statements comprise the entirety of the factual allegations, 15 Plaintiff’s Complaint is conclusory at best and does not provide much basis for the Court 16 to conclude that there is a plausible (i.e., beyond speculative) claim that would be 17 legitimate under the Constitution or 42 U.S.C. § 1983. In addition, Plaintiff provides no 18 factual basis that can connect Defendant San Diego Mesa College (“the College”) with 19 any liability that Plaintiff asserts. 20 A. Claims Against “Officer” 21 Plaintiff filed the instant action under Section 1983. “To state a claim under § 22 1983, a plaintiff must allege two essential elements: (1) that a right secured by the 23 Constitution or laws of the United States was violated, and (2) that the alleged violation 24 was committed by a person acting under the color of State law.” Long v. Cty. of Los 25 Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citation omitted). 26 27 1 Under a liberal pleading standard for pro se litigants, see Hebbe, 627 F.3d at 342, 2 the Court will give the benefit of the doubt that “an officer” referenced in the Complaint 3 refers to Defendant James Everett. Further, the Court finds Plaintiff’s statement “the 4 officer was in his uniform during the time of the civil rights infringement,” (ECF No. 1 at 5 4) to be a plausible allegation that Defendant Everett was acting under the color of state 6 law. Thus, the second requirement for a plausible Section 1983 claim is met. 7 However, the Complaint lacks sufficient detail to meet the first requirement. 8 Plaintiff has not provided enough facts for a plausible claim that Defendant Everett 9 violated Plaintiff’s Fourteenth Amendment Right to Due Process and Equal Protection of 10 Law, the right to be free from the use of excessive force, the right to be free from 11 unreasonable search and seizure, 18 U.S.C. §§ 241, 242, and 42 U.S.C. § 1985. The 12 Court explains in further detail below. 13 1. Fourteenth Amendment Due Process 14 Plaintiff alleges a violation of his due process rights. (ECF No. 1 at 3.) Under the 15 Fourteenth Amendment to the U.S. Constitution, “[n]o State shall . . . deprive any person 16 of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. 17 “The requirements of procedural due process apply only to the deprivation of interests 18 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Board 19 of Regents v. Roth, 408 U.S. 564, 569 (1972). “In general, parties claiming that their due 20 process rights were violated must establish ‘two distinct elements: (1) a deprivation of a 21 constitutionally protected liberty or property interest, and (2) a denial of adequate 22 procedural protections.’” Haggard v. Curry, 631 F.3d 931, 935 (9th Cir. 2010) (citations 23 omitted). The Complaint fails to satisfy either element. Plaintiff has not identified which 24 of his constitutionally protected liberty or property interests Defendants allegedly 25 violated. Nor does the Complaint describe a procedure to which adequate protections 26 could have been applied, or how such protections were denied. Without sufficient detail 27 1 in the pleading to establish these elements, the Court cannot further analyze whether the 2 individual interests at issue are protected by the Fourteenth Amendment, and if they are, 3 what procedures would constitute due process of law. See Lavan v. City of Los Angeles, 4 693 F.3d 1022, 1031 (9th Cir. 2012). Accordingly, Plaintiff’s due process allegations fail 5 to state a claim upon which relief can be granted. 6 2. Fourteenth Amendment Equal Protection 7 Plaintiff also alleges an equal protection violation as a basis for his § 1983 claim. 8 (ECF No. 1 at 3.) The Fourteenth Amendment provides that “[n]o State shall . . . deny to 9 any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. 10 XIV, § 1. As applied to states by the Fifth Amendment, “[t]he guarantee of equal 11 protection is not a source of substantive rights or liberties, but rather a right to be free 12 from invidious discrimination in statutory classifications and other governmental 13 activity.” Harris v. McRae, 448 U.S. 297, 322 (1980). An equal protection claim hinges 14 on Plaintiff’s membership in a protected class which would require the Court to apply 15 heightened scrutiny to the state’s alleged discriminatory actions. See City of Cleburne v. 16 Cleburne Living Center, Inc., 473 U.S. 432, 439-41 (1985). To allege an equal protection 17 violation, Plaintiff must plead facts to show that the Defendant “acted in a discriminatory 18 manner and that the discrimination was intentional.” Reese v. Jefferson School Dist. No. 19 14J, 208 F.3d 736, 740 (9th Cir. 2000). Plaintiff’s Complaint does not state that he is a 20 member of a protected class, nor does it allege any discriminatory action by Defendants 21 based on such membership. Thus, Plaintiff’s equal protection allegations fail to state a 22 claim upon which relief can be granted. 23 3. Fourth Amendment Right to be Free from the Use of Excessive 24 Force and Unreasonable Search and Seizure 25 Plaintiff also alleges a violation of his “right to be free from the excessive use of 26 force as well as the right to be free from unreasonable search and seizure.” (ECF No. 1 at 27 1 3.)2 The Fourth Amendment protects “[t]he right of the people to be secure . . . against 2 unreasonable searches and seizures.” U.S. Const. amend. IV. Courts approach an 3 excessive force claim in three stages. First, courts “assess the severity of the intrusion on 4 the individual’s Fourth Amendment rights by evaluating the type and amount of force 5 inflicted . . . [then] evaluate the government’s interests by assessing the severity of the 6 crime . . . Finally, we balance the gravity of the intrusion of the individual against the 7 government’s need for that intrusion.” Thompson v. Rahr, 885 F.3d 582, 586 (9th Cir. 8 2018) (citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)). Plaintiff’s Complaint 9 does not provide sufficient factual detail for the Court to evaluate the plausibility of his 10 claim rooted in the Fourth Amendment. While Plaintiff states that “the officer had no 11 reason to point his gun” at Plaintiff (ECF No. 1 at 4.), Plaintiff does not provide any other 12 details of the incident, his own behavior, or the circumstances surrounding the officer’s 13 actions in order to support a Fourth Amendment basis for his § 1983 claim. Accordingly, 14 Plaintiff has failed to state a claim upon which relief may be granted. 15 4. 18 U.S.C. §§ 241, 242 16 Plaintiff claims relief under 18 U.S.C. §§ 241 and 242. (ECP No. 1 at 3.) 17 However, these are criminal provisions that provide no basis for civil liability. Allen v. 18 19 20 2 Plaintiff appears to allege separate causes of action for excessive force and for 21 unreasonable search and seizure. (ECF No. 1 at 3.) Where a plaintiff alleges excessive force during an investigation or arrest, the Fourth Amendment inquiry into excessive 22 force is analyzed under the plaintiff’s Fourth Amendment right against unreasonable 23 seizures. Thompson v. Rahr, 885 F.3d 582, 586 (quoting Tolan v. Cotton, 572 U.S. 650, 655 (2014)). See Hamilton v. City of Berkeley, No. 13-CV-4403, 2013 WL 6155818, at 24 *10 (N.D. Cal. Nov. 22, 2013) (“Outside the prison context, a claim that an officer used 25 excessive force is generally understood as a claim that a seizure was unreasonable, and therefore, violated the Fourth Amendment”). 26

27 1 Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006). Thus, Plaintiff fails to state a 2 claim upon which relief can be granted and the Court dismisses these claims. 3 5. 42 U.S.C. § 1985, Conspiracy to Interfere with Civil Rights 4 Plaintiff’s Complaint does not specify from which section of § 1985 his claim 5 arises. However, based on the bare factual allegations in the Complaint, the Court 6 deduces that this claim would most likely arise under section 3, Depriving Persons of 7 Rights or Privileges. “To state a cause of action under § 1985(3), a complaint must allege 8 (1) a conspiracy, (2) to deprive any person or a class of persons of the equal protection of 9 the laws, or of equal privileges and immunities under the laws, (3) an act by one of the 10 conspirators in furtherance of the conspiracy, and (4) a personal injury, property damage, 11 or a deprivation of any right or privilege of a citizen of the United States.” Gillespie v. 12 Civiletti, 629 F.2d 637, 641 (9th Cir. 1980). Plaintiff’s Complaint does not plausibly 13 allege facts supporting these elements. Therefore, Plaintiff has failed to state a § 1985 14 claim upon which relief can be granted. 15 B. Claims Against San Diego Mesa College 16 Plaintiff’s Complaint names San Diego Mesa College as a Defendant but does not 17 provide any further factual detail tying the College to any alleged violations of Plaintiff’s 18 rights. “A claim has facial plausibility when the plaintiff pleads factual content that 19 allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). 21 Plaintiff’s Complaint alleges no basis for finding the College liable. See McHenry v. 22 Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) (affirming the dismissal of an amended 23 complaint for failing to “state[] clearly how each and every defendant was alleged to have 24 violated plaintiffs’ legal rights.”) Accordingly, the Court DISMISSES the Complaint as 25 to Defendant San Diego Mesa College for failing to state a claim upon which § 1983 26 relief can be granted. 27 1 CONCLUSION 2 In sum, the Court GRANTS Plaintiff’s motion to proceed in forma pauperis and 3 || sua sponte DISMISSES the complaint for failure to state a claim. The Court GRANTS 4 || Plaintiff thirty (30) days from the date stamped on this order to file an Amended 5 ||Complaint curing the deficiencies identified above. 6 IT IS SO ORDERED. 7 ||Dated: August 5, 2021 2 Ss 8 Hon. athe Cee 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21-cv-0921-GPC-WVG