Carter v. United States of America

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 TERRENCE MACK CARTER, Case No.: 3:20-cv-00525-JAH-AGS Reg. No. 47098-298, 11 ORDER: Plaintiff, 12 v. (1) GRANTING PLAINTIFF’S 13 MOTION TO PROCEED IN FORMA UNITED STATES OF AMERICA, 14 PAUPERIS [ECF No. 2] Defendant. 15 (2) SUA SPONTE DISMISSING 16 COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 17 28 U.S.C. § 1915(e)(2)(B) AND 18 § 1915A(b)(1)

19 AND 20 (3) DENYING MOTION FOR U.S. 21 MARSHAL SERVICE AS 22 PREMATURE [ECF No. 4] 23 24 Terrance Mack Carter (“Plaintiff”), proceeding pro se, and currently incarcerated at 25 the Federal Correctional Institution in Mendota (“FCI Mendota”), California, has filed 26 this civil action pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346 and 27 § 2674. See Compl., ECF No. 1 at 1. Plaintiff claims a FCI Mendota correctional officer 1 committed a battery against him in the facility kitchen in October 2019. See id. at 2. 2 Plaintiff has not prepaid the $400 civil and administrative filing fee required by 28 U.S.C. 3 § 1914(a); instead he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 4 28 U.S.C. § 1915(a)(1). See ECF No. 2. Plaintiff has also filed a Motion for U.S. Marshal 5 Service. See ECF No. 4. 6 I. Motion to Proceed IFP 7 All parties instituting any civil action, suit or proceeding in a district court of the 8 United States, except an application for writ of habeas corpus, must pay a filing fee. See 9 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the 10 entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 11 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a 12 prisoner and he is granted leave to proceed IFP, he remains obligated to pay the full 13 entire fee in “increments,” Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 14 regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & 15 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 16 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 17 (“PLRA”), prisoners seeking leave to proceed IFP must submit a “certified copy of the 18 trust fund account statement (or institutional equivalent) for the . . . six-month period 19 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 20 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, 21 the Court assesses an initial payment of 20% of (a) the average monthly deposits in the 22 account for the past six months, or (b) the average monthly balance in the account for the 23 past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 24 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then 25 collects subsequent payments, assessed at 20% of the preceding month’s income, in any 26 month in which the prisoner’s account exceeds $10, and forwards those payments to the 27 Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 1 In support of his IFP Motion, Plaintiff has submitted a certified prison certificate 2 issued by FCI Mendota, which attests as to his trust account activity pursuant to 28 U.S.C. 3 § 1915(a)(2) and S.D. Cal. CivLR 3.2. Andrews, 398 F.3d at 1119. Plaintiff’s trust account 4 activity shows he carried an average monthly balance of $15.03, had average monthly 5 deposits of $89.21 to his account over the 6-month period immediately preceding the filing 6 of his Motion, and had an available balance of $26.86 on the books at the time of filing. 7 See ECF No. 2 at 4. Thus, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 8 2) and assesses his initial partial filing fee to be $17.84 pursuant to 28 U.S.C. § 1915(b)(1). 9 However, the Court will direct the Warden of FCI Mendota, or his designee, to 10 collect this initial fee only if sufficient funds are available in Plaintiff’s account at the 11 time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event 12 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or 13 criminal judgment for the reason that the prisoner has no assets and no means by which to 14 pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 15 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a 16 prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds available 17 to him when payment is ordered.”). The Warden at FCI Mendota is directed to collect the 18 remaining balance of the $350 total fee owed in this case as mandated by 28 U.S.C. 19 § 1914 and forward it to the Clerk of the Court pursuant to the installment payment 20 provisions set forth in 28 U.S.C. § 1915(b)(1). 21 II. Initial Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A 22 A. Standard of Review 23 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 24 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 25 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 26 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 27 who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 1 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en 2 banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 3 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 4 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 5 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 6 680, 681 (7th Cir. 2012)). 7 “The standard for determining whether a plaintiff has failed to state a claim upon 8 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 9 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 10 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 11 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 12 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 13 12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to 14 “contain sufficient factual matter, accepted as true, to state a claim to relief that is 15 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 16 marks omitted). 17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 18 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 19 Id. “Determining whether a complaint states a plausible claim for relief [is] ... a context- 20 specific task that requires the reviewing court to draw on its judicial experience and 21 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant- 22 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 23 see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 24 /// 25 /// 26 /// 27 /// 1 B. Plaintiff’s Allegations 2 Plaintiff seeks damages against the United States for an incident that occurred at 3 FCI Mendota.1 See Compl. at 2-3. In October 2019, Plaintiff claims an officer made “a 4 racial comment” and “unreasonably chest bumped” him. Id. at 2. Plaintiff alleges the 5 officer committed a battery against him by contacting him without consent and that the 6 incident was caught on one of the prison’s security cameras. Id. Moreover, Plaintiff 7 claims the officer’s actions amounted to a “slavery tactic,” which caused him to suffer 8 embarrassment and depression. Id. He seeks $1 million in compensatory and another $1 9 million in punitive damages.2 Id. at 2‒3. 10 C. FTCA Claim 11 The FTCA waives sovereign immunity for claims arising out of common law torts 12 committed by federal employees. It “authorizes private tort actions against the United 13 States ‘under circumstances where the United States, if a private person, would be liable 14 to the claimant in accordance with the law of the place where the act or omission 15 occurred.’” U.S. v. Olson, 546 U.S. 43, 44 (2005) (quoting 28 U.S.C. § 1346(b)(1)). 16 Moreover, the FTCA includes an exception which expressly bars claims “arising out of” 17 an intentional tort, including assault, battery, false imprisonment, false arrest, and 18 malicious prosecution, among others. See Simmons v. Mischel, No. 18-CV-02193-VKD, 19 2020 WL 1032233, at *7 (N.D. Cal. Mar. 3, 2020) (quoting 28 U.S.C. § 2680(h)). 20 /// 21 22 1 While Plaintiff is currently incarcerated at FCI Mendota and the act he complains of occurred there, he 23 also alleges he is a resident of San Diego County. See Compl. at 1; Smith v. United States, 507 U.S. 197, 202 (1993) (FTCA’s “venue provision, § 1402(b), provides that claims under the FTCA may be brought 24 ‘only in the judicial district where the plaintiff resides or wherein the act or omission complained of 25 occurred’”).

26 2 “[J]ury trials and punitive damages awards are impermissible” under the FTCA. Nurse v. United States, 226 F.3d 996, 1005 (9th Cir. 2000); 28 U.S.C. § 2674 (“The United States ... shall not be liable for ... 27 punitive damages.”). 1 However, an “exception to the exception” also exists. Tekle v. United States, 511 2 F.3d 839, 851 n.9 (9th Cir. 2007) (citing 28 U.S.C. § 2680(h)). The FTCA “does not bar a 3 claim against the United States for intentional torts such as assault and battery where the 4 perpetrator is a federal investigative or law enforcement officer.” Black v. United States, 5 No. C13-5415RBL, 2013 WL 5214189, at *2 (W.D. Wash. Sept. 17, 2013). “[T]he 6 waiver effected by the law enforcement proviso extends to acts or omissions of law 7 enforcement officers that arise within the scope of their employment, regardless of 8 whether the officers are engaged in investigative or law enforcement activity, or are 9 executing a search, seizing evidence, or making an arrest.” Millbrook v. United States, 10 569 U.S. 50, 57 (2013). 11 Nevertheless, “[n]o prisoner convicted of a felony ‘may bring a civil action against 12 the United States or an agency, officer, or employee of the Government, for mental or 13 emotional injury suffered while in custody without a prior showing of physical injury.’” 14 Hashemian v. United States Marshals, No. 3:18-CV-00286-TMB, 2019 WL 6736197, at 15 *5 (D. Alaska Dec. 11, 2019) (emphasis added) (quoting 28 U.S.C. § 1346(b)(2)). 16 Thus, although Plaintiff’s Complaint alleges battery by a law enforcement officer, 17 he fails to claim any physical injury whatsoever. See Merz v. United States, 532 F. App’x 18 677, 678 (9th Cir. 2013) (finding the district court properly dismissed pro se prisoner’s 19 FTCA claims where prisoner did not allege physical injury and sought damages for 20 exclusively mental or emotional injuries). Accordingly, the Court finds that Plaintiff’s 21 Complaint fails to state a plausible FTCA claim, and that therefore, it is subject to sua 22 sponte dismissal in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1). 23 See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 24 Because he is proceeding pro se, however, the Court having now provided him 25 with “notice of the deficiencies in his complaint,” will also grant Plaintiff an opportunity 26 to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. 27 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 1 III. Conclusion and Order 2 Based on the foregoing, the Court: 3 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 4 (ECF No. 2) and DENIES his Motion requesting United States Marshal service without 5 prejudice as premature (ECF No. 4). 6 2. ORDERS the Warden of FCI Mendota, or his designee, to collect from 7 Plaintiff’s trust account the $17.84 initial filing fee assessed, if those funds are available 8 at the time this Order is executed, and to forward whatever balance remains of the full $350 9 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding 10 month’s income to the Clerk of the Court each time the amount in Plaintiff’s account 11 exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY 12 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 13 3. DIRECTS the Clerk of the Court is directed to serve a copy of this Order on 14 the Warden, The Federal Correctional Institution, Mendota, 33500 West California 15 Avenue, Mendota, California 93640. 16 4. DISMISSES Plaintiff’s Complaint against the United States of America for 17 failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1). 18 5. GRANTS Plaintiff 45 days leave from the date of this Order in which to file 19 an Amended Complaint which cures the deficiencies of pleading noted. Plaintiff’s 20 Amended Complaint must be complete by itself without reference to his original 21 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 22 will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 23 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 24 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 25 (noting that claims dismissed with leave to amend which are not re-alleged in an 26 amended pleading may be “considered waived if not repled.”). 27 /// 1 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter 2 ||a final Order dismissing this civil action based both on his failure to state a claim upon 3 || which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and § 1915A(b) and his 4 || failure to prosecute in compliance with a court order requiring amendment. See Lira □□□ 5 || Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 6 || the opportunity to fix his complaint, a district court may convert the dismissal of the 7 ||complaint into dismissal of the entire action.”). 8 IT IS SO ORDERED. 9 10 || Dated: May 28, 2020 VU 11 H n. John A. Houston Jnited States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3:20-cv-00525-JAH-AGS