1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TODD ALAN DUELL, Case No.: 3:20-cv-01145-JAH-AGS Booking #19727431, 12 CDCR # BI-8918, ORDER: 13 Plaintiff, (1) GRANTING RENEWED 14 vs. MOTION TO PROCEED 15 IN FORMA PAUPERIS ABRAM GENSER; [ECF No. 22] 16 WILLIAM GORE,
17 Defendants. AND
18 (2) DISMISSING CIVIL ACTION 19 FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) 20 AND 28 U.S.C. § 1915A(b) 21 22 Plaintiff Todd Alan Duell, a California state prisoner currently detained at the San 23 Diego County Jail (“SDCJ”), and either awaiting trial or sentence in San Diego Superior 24 Court Criminal Case No. SCD279745, is proceeding pro se in this civil rights action filed 25 pursuant to 42 U.S.C. § 1983.1 See Compl., ECF No. 1 at 1. While far from clear, 26
27 1 According to the San Diego County Sheriff’s Department website, Plaintiff is also identified as 28 1 Plaintiff’s Complaint appears to challenge the effectiveness of his public defender, 2 Defendant Abram Genser, to assert his right to self-representation in the ongoing state 3 criminal proceedings, see Compl. at 2, 3 & “Attachment 1,” ECF No. 1 at 8-16, and to 4 seek his immediate release based on various conditions of his confinement at the San 5 Diego County Sheriff Department’s George Bailey Detention Facility (“GBDF”). Id. at 6 1‒4 & “Attachment 2” at 17-30. Plaintiff seeks both general, punitive and Biblical 7 damages2 pursuant to the Book of Revelations and Galatians against Genser and William 8 Gore, the San Diego County Sheriff, id., “Attachment 4” at 36‒37, as well as injunctive 9 relief requiring the dismissal of San Diego County Superior Court Case No. SCD279745, 10 and his immediate release “from all facilities.” Id. at 4, 30.3 11 I. Procedural History 12 On September11, 2020, the Court denied Plaintiff’s initial Motion to Proceed In 13 Forma Pauperis (“IFP”) because he failed to attach a certified copy of his inmate trust 14
15 facing multiple counts of felony forgery in violation of Cal. Penal Code § 115(a) in San Diego Superior 16 Court Criminal Case No. SCD279745. See https://apps.sdsheriff.net/wij/wijDetail.aspx?Book Num= 17 p16EMZPf7dl9kIqp%2fBibGAnOHXSUFOWd%2frgxfouFWBo%3d (last accessed March 4, 2021); United States v. Basher, 629 F.3d 1161, 1165 (9th Cir. 2011) (taking judicial notice of Bureau of Prisons’ 18 inmate locator); Graham v. Los Angeles Cty., No. 2:18-CV-01126-PA(GJS), 2018 WL 6137155, at *2 (C.D. Cal. May 4, 2018) (taking judicial notice pursuant to Fed. R. Civ. P. 201 of County Sheriff 19 Department’s website and its inmate locator function, “which provides some information regarding the status of inmates housed in … County jail[]” for purposes of initial screening pursuant to 28 U.S.C. 20 § 1915A). Plaintiff also filed a habeas corpus petition in this Court pursuant to 28 U.S.C. § 2254 on 21 September 24, 2020, but it was transferred to the Central District of California to the extent it sought to challenge the validity of a February 4, 2019 criminal conviction in Ventura County Superior Court Case 22 No. 2016004124. See Duell v. Gore, et al., S.D. Cal. Civil Case No. 3:20-cv-01914-WQH-AGS (ECF No. 1, “Pet.” at 1-2; ECF No. 3-1 “Order of Transfer” at 1-3.); Bias v. Moynihan, 508 F.3d 1212, 1225 (9th 23 Cir. 2007) (“[W]e ‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’”) (citations omitted). 24
25 2 “Like modern tort law, the Bible usually deters tortious activity by imposing upon the wrongdoer a cost that is at least equal to the inflicted harm.” Moshe Bar Niv (Burnovski), Regulating Theft - Lessons from 26 Biblical Law, 16 RUTGERS J. L. & RELIGION 71, 74 (2014).
27 3 Plaintiff also filed a “Supplemental Complaint” (ECF No. 4), “demand[ing] [a] commercial remedy,” to “force probate” of his “estate legacy account” based on Defendants’ “intentional fraud and failure of the 28 1 account statements as required by 28 U.S.C. § 1915(a)(2), but granted him leave to fix 2 that deficiency. See ECF No. 12. In that same Order, however, the Court cautioned that 3 should Plaintiff elect to successfully file a renewed IFP Motion, he would remain 4 obligated to pay the full $350 civil filing fee in installments, and face potential immediate 5 sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). See ECF No. 12 at 4‒5 n.3. 6 Specifically, the Court noted that as pleaded, Plaintiff’s Complaint appeared 7 subject to dismissal with respect to Defendant Genser because public defenders “[do] not 8 act under color of state law [under § 1983] when performing a lawyers’ traditional 9 functions as counsel to a defendant in a criminal proceeding,” id. (quoting Polk County v. 10 Dodson¸454 U.S. 312, 325 (1981)), and with respect to Defendant Gore because as 11 Sheriff, he could not be held vicariously liable for the actions of his deputies. Id. (citing 12 Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Finally, the Court advised Plaintiff that to 13 the extent he sought injunctive relief with respect to still-pending criminal charges in San 14 Diego Criminal Case No. SCD279745, Younger v. Harris, 401 U.S. 37 (1971), abstention 15 would be required. Id. 16 Despite these warnings, Plaintiff filed a renewed IFP, together with the trust 17 account statements he was previously lacking.4 See ECF No. 22. He has not, however, 18 filed an Amended Complaint addressing the deficiencies of pleading identified in the 19 Court’s September 11, 2020 Order. Instead, he has submitted a “Notice to the Court” 20 seeking leniency in light of his pro se status, together with a proposed summons for 21 purposes of serving Defendants Genser and Gore. See ECF No. 24 at 1, 8‒9. 22 II. Renewed Motion to Proceed IFP 23 As Plaintiff now knows, all parties instituting any civil action, suit or proceeding in 24 a district court of the United States, except an application for writ of habeas corpus, must 25
26 4 Plaintiff did so, however, only after filing a premature Notice of Appeal (ECF No. 13), which has since 27 been dismissed. See ECF No. 25. While that appeal was pending, Plaintiff also requested and was granted an extension of time in which to submit his renewed IFP Motion. See ECF Nos. 20, 21. 28 1 pay a filing fee of $400. See 28 U.S.C. § 1914(a). The action may proceed despite failure 2 to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 3 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 4 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to 5 proceed IFP remain obligated to pay the entire fee in “increments” or “installments,” 6 Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th 7 Cir. 2015), and regardless of outcome. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 8 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 10 of fees to submit an affidavit that includes a statement of all assets possessed and 11 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 12 Cir. 2015). In support of this affidavit, § 1915(a)(2) requires that all prisoners as defined 13 by 28 U.S.C. § 1915(h) who “seek[] to bring a civil action ... without prepayment of fees 14 ... shall submit a certified copy of the trust fund account statement (or institutional 15 equivalent) ... for the 6-month period immediately preceding the filing of the complaint.” 16 28 U.S.C. § 1915(a)(2) (emphasis added); Andrews v. King, 398 F.3d 1113, 1119 (9th 17 Cir. 2005). 18 From the certified trust account statement, the Court must assess an initial payment 19 of 20% of (a) the average monthly deposits in the account for the past six months, or (b) 20 the average monthly balance in the account for the past six months, whichever is greater, 21 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). 22 The institution having custody of the prisoner then must collect subsequent payments, 23
24 25 5 For civil cases like this one, filed before December 1, 2020, the civil litigant bringing suit must pay the $350 statutory fee in addition to a $50 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference 26 Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June. 1, 2016). The $50 administrative fee does not apply to persons granted leave to proceed IFP, however. Id. This administrative fee increased to 27 $52 for civil cases filed on or after December 1, 2020, but that portion still does not apply to persons granted leave to proceed IFP. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District 28 1 assessed at 20% of the preceding month’s income, in any month in which his account 2 exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. 3 See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 85‒86. 4 In support of his renewed IFP Motion, Plaintiff has now submitted a prison 5 certificate certified by a San Diego County Sheriff’s Department Detentions Captain, 6 together with a copy of his Inmate Trust Account Activity dated January 17, 2020 7 through September 30, 2020. See ECF No. 22 at 4‒6; 28 U.S.C. § 1915(a)(2); S.D. Cal. 8 CivLR 3.2; Andrews, 398 F.3d at 1119. These statements show Plaintiff had $88.22 to his 9 credit at SDCJ at the time of filing, average monthly deposits of $191.67, and carried an 10 average balance of $14.70 in his account over the preceding six-months. See ECF No. 22 11 at 4. 12 Therefore, the Court GRANTS Plaintiff’s Renewed Motion to Proceed IFP (ECF 13 No. 22) and assesses his initial partial filing fee to be $38.33 pursuant to 28 U.S.C. 14 § 1915(b)(1). However, the Court will direct the Watch Commander at SDCJ, or the 15 Secretary of the California Department of Corrections and Rehabilitation (“CDCR”), or 16 their designees, to collect this initial filing fee only if sufficient funds are available in 17 Plaintiff’s account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) 18 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action 19 or appealing a civil action or criminal judgment for the reason that the prisoner has no 20 assets and no means by which to pay the initial partial filing fee.”); Bruce, 577 U.S. at 86; 21 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 22 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to 23 the lack of funds available to him when payment is ordered.”). The remaining balance of 24 the $350 total fee owed in this case must be collected by whichever agency has custody 25 of the prisoner and forwarded to the Clerk of the Court pursuant to 28 U.S.C. 26 § 1915(b)(2). 27 / / / 28 / / / 1 III. Screening pursuant to 28 U.S.C. § 1915(e)(2) & 1915A 2 A. Standard of Review 3 As the Court has previously cautioned, because Plaintiff is a prisoner and is 4 proceeding IFP, his Complaint requires a preliminary review pursuant to 28 U.S.C. 5 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a 6 prisoner’s IFP complaint, or any portion thereof, if it is frivolous, malicious, fails to state 7 a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 8 F.3d 1122, 1126‒27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); 9 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 10 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 11 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 12 903, 920 n.1 (9th Cir. 2014) (citation omitted). 13 “The standard for determining whether a plaintiff has failed to state a claim upon 14 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 15 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 16 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 17 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 18 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 19 12(b)(6)”). 20 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain 21 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 22 face.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted); Wilhelm, 680 F.3d at 23 1121. And while the court “ha[s] an obligation where the petitioner is pro se, particularly 24 in civil rights cases, to construe the pleadings liberally and to afford the petitioner the 25 benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing 26 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential 27 elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of 28 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 1 B. Plaintiff’s Allegations 2 Plaintiff’s Complaint does not include any factual allegations. Instead, when asked 3 to identify his causes of action, he merely catalogues his rights to “access to the court, 4 due process, … to be let alone, self-representation, medical care, private contract, liberty, 5 [to be free from] cruel and unusual punishment,” and “life.” See Compl. at 3, 4. In the 6 “supporting facts” section, Plaintiff refers globally to the “totality of the conditions” and 7 the “overall” and “combined affect of multiple violations by multiple state actors.” Id. at 8 3. But he names only his public defender and the San Diego County Sheriff as parties, 9 and directs the Court to consider more than 50 pages of his “chronological” narrative 10 enclosed as “Attachments” to his pleading. Id. at 4-5, 8‒57.6 11 In the first of these, which appears to relate only to Defendant Genser, Plaintiff 12 claims he is both the trustee and beneficiary of a “private, complex, irrevocable trust” 13 which Genser refused to acknowledge was within in his “jurisdiction” or “scope of 14 authority” as Plaintiff’s appointed counsel in San Diego Criminal Case No. SCD279745. 15 See Attach. 1, ECF No. 1 at 9. Plaintiff then recounts various ways in which Genser has 16 failed to adequately defend him, focusing mainly on Genser’s refusals to present financial 17 documents Plaintiff insists are “certified,” but his counsel contends “are not real.” Id. at 18 9‒12, 14. Plaintiff also objects to the Superior Court’s denial of his Marsden motion,7 19 and involuntary psychiatric evaluations ordered by the Court at Genser’s behest. Id. at 20
21 22 6 “The Court will not comb through attached exhibits seeking to determine whether a claim possibly could have been stated where the pleading itself does not state a claim. In short, [Plaintiff] must state a claim, 23 not merely attach exhibits.” Stewart v. Nevada, No. 2:09-CV-01063, 2011 WL 588485, at *2 (D. Nev. Feb. 9, 2011); accord Jackson v. Covello, No. 3:19-CV-2444 JAH MDD, 2020 WL 6582659, at *3 (S.D. 24 Cal. Nov. 10, 2020). 25 7 People v. Marsden, 2 Cal. 3d 118, 124-25 (1970) provides a criminal defendant in California the 26 opportunity to explain his reasons for moving to substitute appointed counsel. Hart v. Broomfield, 2020 WL 4505792, at *55 (C.D. Cal. Aug. 5, 2020). The Sixth and Fourteenth Amendments guarantee a 27 criminal defendant’s right to reject court-appointed counsel and to conduct his or her own defense. Faretta v. California, 422 U.S. 806, 834–36 (1975). 28 1 11‒14. 2 Plaintiff’s second attachment comprises a categorical account of the overall 3 deficient conditions under which he has been detained at GBDF “from January 2019 to 4 current.” See Compl. at 1, 18‒25. In it, Plaintiff broadly claims GBDF is “not equipped” 5 to treat his various medical needs, which include a range of ailments like diabetes, 6 hypothyroidism, an inflamed liver, swollen ankles, kidney stones, blisters, and heart 7 palpitations. Id. at 18‒20. He objects to the lack of homeopathic remedies, vitamins, 8 testosterone therapy, CBD oil, sterilized drinking water, low-fat dietary options, other 9 means by which he “could receive immediate care through his insurance company,” and 10 fears potential exposure to “tuberculosis, hepatitis A/G/C, MERSA, staph, HIV, 11 pneumonia, cold virus, flu virus, fungus, bacteria, and now the deadly world-wide 12 pandemic corona virus,” claiming the “systemic breakdown and lack of leadership” in the 13 County jail system since 2009 “warrant[s] [his] removal” from custody. Id. at 20-25. 14 C. 42 U.S.C. § 1983 15 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 16 elements: (1) that a right secured by the Constitution or laws of the United States was 17 violated, and (2) that the alleged violation was committed by a person acting under the 18 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 19 1035-36 (9th Cir. 2015); see also Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 20 1985) (en banc) (noting the Court reaches the issue of defendants’ § 1983 liability only if 21 defendants acted under color of state law, and the conduct deprived plaintiff of a 22 constitutional right). 23 / / / 24
25 26 8 Plaintiff’s Supplemental Complaint includes many of the same rambling and incoherent allegations against Genser. For example, Plaintiff claims Genser is “in default’ and has committed an “intentional 27 fraud” by failing to “execute all motions” and perform his duty to “turn over all legacy estate accounting records and securities” and to “produce evidence of ‘supersedeas motion’ trust number CD279745 for 28 1 D. Defendant Genser 2 As the Court noted in its September 11, 2020 Order, to the extent Plaintiff seeks to 3 sue Abram Genser, his appointed public defender, for failing to provide him effective 4 assistance of counsel, by “block[ing] [his] rights,” and by subjecting him to “wanton and 5 unethical treatment by abuse of [the] legal process” pursuant to 42 U.S.C. § 1983, see 6 Compl., Attach. 1 at 14‒15, 12, he fails to state a claim upon which relief can be granted. 7 See 28 U.S.C. § 1915(e)(2)(B)(ii); Watison, 668 F.3d at 1112. 8 “[A] public defender does not act under color of state law when performing a 9 lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Polk, 10 454 U.S. at 325; Garnier v. Clarke, 332 Fed. App’x 416 (9th Cir. 2009) (affirming 11 district court’s sua sponte dismissal of prisoner’s section 1983 claims against appointed 12 counsel); Schmidt v. Mize, 2018 WL 2411750, at *3 (S.D. Cal. May 29, 2018) (sua sponte 13 dismissing prisoner’s § 1983 claims against public defender pursuant to 28 U.S.C. 14 § 1915(e)(2)). 15 E. Sheriff Gore 16 As the Court also previously cautioned, and notwithstanding his various objections 17 to the general conditions of his confinement at GBDF, Plaintiff’s Complaint fails to state 18 a claim against Sheriff Gore. See ECF No. 12 at 4-5 n.2. 19 “[L]iability under § 1983 must be based on the personal involvement of the 20 defendant.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Accordingly, 21 “[l]iability under section 1983 arises only upon a showing of personal participation by the 22 defendant” in the deprivation alleged. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) 23 (citing Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)); see also King v. Atiyeh, 814 24 F.2d 565, 568 (9th Cir. 1987) (noting that “state officials are not subject to suit under 25 § 1983 unless they play an affirmative part in the alleged deprivation of constitutional 26 rights”). “A plaintiff must allege facts, not simply conclusions, that show an individual 27 was personally involved in the deprivation of his civil rights.” Barren, 152 F.3d at 1194. 28 A person deprives another “of a constitutional right, within the meaning of section 1983, 1 if he does an affirmative act, participates in another’s affirmative acts, or omits to 2 perform an act which he is legally required to do that causes the deprivation of which [the 3 plaintiff] complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 4 Alternatively, liability also may be imposed under section 1983 if the defendant 5 sets into “motion a series of acts by others which the [defendant] knows or reasonably 6 should know would cause others to inflict the constitutional injury.” Gini v. Las Vegas 7 Metro. Police Dep’t, 40 F.3d 1041, 1044 (9th Cir. 1994) (quoting Merritt v. Mackey, 827 8 F.2d 1368, 1371 (9th Cir. 1987)). Section 1983, however, does not impose liability upon 9 supervisory officials for the acts of their subordinates under a respondent superior theory 10 of liability. Iqbal, 556 U.S. at 677 (“Absent vicarious liability, each Government official, 11 his or her title notwithstanding, is only liable for his or her own misconduct.”); Taylor, 12 880 F.2d at 1045. A supervisory official may only be held liable under § 1983 only if 13 Plaintiff alleges his “personal involvement in the constitutional deprivation, or ... a 14 sufficient causal connection between the supervisor’s wrongful conduct and the 15 constitutional violation.” Keates v. Koile, 883 F.3d 1228, 1242-43 (9th Cir. 2018); Starr 16 v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011); see also Estate of Brooks ex rel. Brooks v. 17 United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required 18 element of a § 1983 claim.”). 19 With respect to Plaintiff’s conditions of confinement claims arising at GBDF from 20 “January 2019 to current,” see Compl. at 1, & Attach. 2 at 18‒25, he fails to allege any 21 personal involvement on behalf of the Sheriff himself. See, e.g., Conley v. Nielsen, 706 22 Fed. App’x 890, 892 (9th Cir. 2017)) (affirming sua sponte dismissal of claims raised 23 against “all medical staff” at the County Jail because the plaintiff failed to identify any of 24 the individuals involved and describe any “specific conduct attributable to them.”); Iqbal, 25 556 U.S. at 678. Instead, Plaintiff’s Complaint identifies Defendant Gore by his title as 26 “Sheriff/Warden,” see Compl. at 2, and broadly charges him with “a systematic 27 breakdown and lack of leadership … since 2009.” See Compl. at 20. He fails to attribute 28 any specific act of misconduct on any specific occasion to Gore, however; and does not 1 allege facts sufficient to plausibly show how Gore’s purported “lack of leadership” 2 caused him any constitutional injury.9 See Iqbal, 556 U.S. at 677; see also Jones v. 3 Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 4 1984) (even pro se plaintiff must “allege with at least some degree of particularity overt 5 acts which defendants engaged in” in order to state a claim). 6 F. Younger Abstention 7 Finally, Plaintiff may not use the Civil Rights Act, 42 U.S.C. § 1983, as a vehicle 8 by which to enjoin ongoing state criminal proceedings. Federal courts may not interfere 9 with ongoing state criminal, quasi-criminal enforcement actions, or in civil “cases 10 involving a state's interest in enforcing the orders and judgments of its courts,” absent 11 extraordinary circumstances. See Younger, 401 U.S. at 43–54; Sprint Commc’ns, Inc. v. 12 Jacobs, 571 U.S. 69, 77 (2013); Cook v. Harding, 879 F.3d 1035, 1039 (9th Cir. 2018); 13 ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014). 14 A court may consider sua sponte whether Younger abstention should be invoked at 15 any point in the litigation. H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 16 2000); Augustin v. Cty. of Alameda, 234 Fed. Appx. 521 (9th Cir. 2007); Salmons v. 17 Oregon, No. 1:17-CV-01104-MC, 2017 WL 3401270, at *5 (D. Or. Aug. 8, 2017); see 18 also Washington v. Los Angeles County Sheriff’s Dept., 833 F.3d 1048, 1058 (9th Cir. 19 2016) (holding that “a dismissal due to Younger abstention [is] similar to a dismissal 20 under Rule 12(b)(6) for lack of subject-matter jurisdiction.”). 21 / / / 22 23 24 9 Plaintiff does not allege to have actually contracted any disease while in custody—only to fear exposure 25 to them. And while his concerns about contracting COVID-19 in particular are understandable, he fails to offer any specific facts supporting a viable Eighth or Fourteenth Amendment claim or a causal link 26 between Sheriff Gore’s acts or omissions and any compensable injury. Alleging “the mere possibility of misconduct” is not enough. Iqbal, 556 U.S. at 679; Harmon v. City of Twin Falls, No. 1:20-CV-00525- 27 BLW, 2021 WL 51756, at *4 (D. Idaho Jan. 6, 2021) (finding convicted prisoner’s unsupported claims of “increased risk from COVID-19” while in county custody insufficient to state a claim for relief pursuant 28 1 Abstention is proper regardless of whether the applicant seeks declaratory relief, 2 injunctive relief, or damages. See Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986) 3 (“When a state criminal prosecution has begun, the Younger rule directly bars a 4 declaratory judgment action” as well as a section 1983 action for declaratory relief and 5 damages “where such an action would have a substantially disruptive effect upon 6 ongoing state criminal proceedings.”); Gilbertson v. Albright, 381 F.3d 965, 984 (9th Cir. 7 2004) (en banc) (Younger abstention applies to actions for damages as it does to 8 declaratory and injunctive relief). 9 Here, Plaintiff alleges his San Diego criminal proceedings commenced in January 10 2019 and were still ongoing at the time he filed his Complaint.10 See Compl. at 1. State 11 proceedings are deemed ongoing until appellate review is completed. See Gilbertson, 381 12 F.3d at 969 n.4 (citation omitted); Huffman v. Pursue, 420 U.S. 592, 608 (1975) (“[A] 13 necessary concomitant of Younger is that a party ... must exhaust his state appellate 14 remedies before seeking relief in the District Court.”). 15 There is no question that whatever the specific nature of Plaintiff’s current criminal 16 charges, they implicate important state interests, and “involve [the] state’s interest in 17 enforcing orders and judgments of its courts.” Sprint, 571 U.S. at 73; ReadyLink, 754 18 F.3d at 759. Specifically, Plaintiff claims his public defender has failed to adequately 19 represent him, has subjected him to psychiatric evaluation without his consent, and 20 objects because the trial court has refused to “discharge” him. See Compl. at 11-16, 27. 21 These are the type of claims and relief the state courts afford an adequate opportunity to 22 raise on direct appeal, or via a writ of mandate in the state’s courts. See San Jose Silicon 23 Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 24
25 26 10 According to the San Diego County Sheriff’s Department website, Plaintiff was booked into County custody in San Diego Criminal Case No. SCD279745 on May 2, 2019, but has yet to be tried or sentenced. 27 See https://apps.sdsheriff.net/wij/wijDetail.aspx?BookNum=LjrB5gNMagoGDldo3hRD0IY 60kQor1G % 2fdJizJZGT0RQ%3d (last accessed March 4, 2021). 28 1 1087, 1095 (9th Cir. 2008); Clark v. Lassen Cnty Justice Court, 967 F.2d 585 at *1 (9th 2 Cir. 1992) (sua sponte dismissing federal civil action challenging state court’s bail 3 determinations as frivolous pursuant to 28 U.S.C. § 1915(d) [currently codified at 28 4 U.S.C. § 1915(e)(2)(B)(i)] as barred by Younger). In fact, Plaintiff alleges to have filed 5 writs of mandamus with the California Court of Appeal arguing he should be permitted to 6 “represent himself under the 6th and 14th Amendments,” see Compl. at 13, and he 7 explicitly seeks this Court’s intervention by way of a “dismissal of the case (CD279745) 8 in its entirety and liberty from all facilities.” Id. at 30.11 9 Because “only in the most unusual circumstances is a defendant entitled to have 10 federal interposition by way of injunction ... until after the jury comes in, judgment has 11 been appealed from and the case concluded in the state courts,” Drury v. Cox, 457 F.2d 12 764, 764-65 (9th Cir. 1972), Younger abstention is required here. ReadyLink, 754 F.3d at 13 759; see also Rivera v. Gore, No. 3:17-CV-02225-WQH-NLS, 2018 WL 1001252, at *6 14 (S.D. Cal. Feb. 21, 2018) (sua sponte dismissing pretrial detainee’s § 1983 claims 15 requesting the “dismissal” of an ongoing criminal proceeding and the “reduction of the 16 bail” on Younger abstention grounds). 17 Thus, for all the foregoing reasons, Plaintiff’s Complaint must be dismissed sua 18 sponte based on his failure to state a claim upon which § 1983 relief may be granted. See 19 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b)(1); Lopez, 203 F.3d at 1126–27; Wilhelm, 680 20 F.3d at 1121. 21 G. Leave to Amend 22 Because Plaintiff has been previously apprised of his pleading’s deficiencies, but 23 has failed to fix them, the Court finds granting him further leave to amend would prove 24
25 26 11 Moreover, “when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from 27 that imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). A prisoner in state custody “cannot use a § 1983 action to challenge ‘the fact or duration 28 1 futile. See Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) 2 (“‘Futility of amendment can, by itself, justify the denial of ... leave to amend.’”) 3 (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v. 4 Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the plaintiff has 5 previously been granted leave to amend and has subsequently failed to add the requisite 6 particularity to its claims, [t]he district court’s discretion to deny leave to amend is 7 particularly broad.” (internal quotation marks omitted) (second alteration in original)). 8 Amendment would also be futile because even if Plaintiff could adequately plead a 9 plausible claim for relief upon which § 1983 relief can be granted, this Court would 10 nevertheless be required to abstain. See Clark v. Superior Court of Cal., No. 3:19-cv- 11 00141-LAB-LL, 2019 WL 1114881, at *5 (S.D. Cal. Mar. 11, 2019) (denying pro se 12 inmate leave to amend as futile when complaint was barred by Younger abstention); 13 Davis v. Mendes, No. 13-CV-1817 BEN RBB, 2014 WL 1744137, at *3 (S.D. Cal. Apr. 14 30, 2014) (denying leave to amend as futile when prisoner’s § 1983 claims were subject 15 to dismissal under § 1915(e)(2) and § 1915A based on absolute immunity and Younger 16 abstention). 17 IV. Conclusion and Orders 18 For the reasons explained, the Court: 19 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 20 (ECF No. 22). 21 2. DIRECTS the Watch Commander of GBDF, or the Secretary of the CDCR, 22 or their designees, and any subsequent “agency having custody” of Plaintiff to collect 23 from his trust account the $38.33 initial partial filing fee assessed by the Order, and to 24 garnish the remainder of the $350 filing fee owed in this case in monthly payments from 25 his account in an amount equal to twenty percent (20%) of the preceding month’s income 26 and forwarding those payments to the Clerk of the Court each time the amount in the 27 account exceeds $ 10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE 28 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 1 || ACTION. 2 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 3 || Commander, San Diego County Jail, 1173 Front Street, San Diego, California 92106, and 4 ||to forward an electronic copy to trusthelpdesk@cdcr.ca.gov. 5 4. DISMISSES this civil action based on Plaintiff’s failure to state a claim 6 upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) 7 || and as barred by Younger. 8 5. CERTIFIES that an IFP appeal would not be taken in good faith pursuant 9 || to 28 U.S.C. § 1915(a)(3), and 10 6. DIRECTS the Clerk of the Court to enter judgment and to close the file. 11 IT IS SO ORDERED. 12 13 || Dated: March 30, 2021 14 Hofi. John A. Houston 15 Upited States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 15 om