Hudson v. San Diego Sheriff's Department

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JEFFREY DANIEL HUDSON, Case No.: 3:22-cv-00196-CAB-DEB Booking #21149533, 11 ORDER: Plaintiff, 12 vs. 1) GRANTING MOTION TO 13 PROCEED IN FORMA PAUPERIS SAN DIEGO SHERIFFS, 14 [ECF No. 5] Defendants. 15 AND 16 2) DISMISSING COMPLAINT FOR 17 FAILING TO STATE A CLAIM 18 PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) AND 19 28 U.S.C. § 1915A(b) 20 21 Jeffrey Daniel Hudson (“Plaintiff”), while detained at George Bailey Detention 22 Facility (“GBDF”) in San Diego, California, and proceeding pro se, filed a civil rights 23 Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff 24 did not pay the fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; instead 25 he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) 26 (ECF No. 5). 27 / / / 28 / / / 1 I. Motion to Proceed IFP 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); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 9 Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th 10 Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 11 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6- 14 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 15 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 16 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 17 in the account for the past six months, or (b) the average monthly balance in the account 18 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 19 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner 20 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 21 any month in which his account exceeds $10, and forwards those payments to the Court 22 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. 23 In support of his IFP Motion, Plaintiff has submitted a prison certificate authorized 24 by a GBDF Facility Commander, together with a copy of his Inmate Trust Account 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does not apply to persons granted leave to proceed 28 1 Activity. See ECF No. 5; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d 2 at 1119. This statement shows that Plaintiff had an average monthly balance of $66.73, and 3 average monthly deposits of $166.67 to his account over the 6-month period immediately 4 preceding the filing of his Complaint, as well as an available balance of $200.18 at the time 5 of filing. Based on this financial information, the Court GRANTS Plaintiff’s Motion to 6 Proceed IFP (ECF No. 5), and assesses his initial partial filing fee to be $13.35 pursuant to 7 28 U.S.C. § 1915(b)(1). 8 However, the Court will direct the GBDF Watch Commander, or their designee, to 9 collect this initial fee only if sufficient funds are available in Plaintiff’s account at the time 10 this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a 11 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 12 judgment for the reason that the prisoner has no assets and no means by which to pay the 13 initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 14 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner's IFP 15 case based solely on a “failure to pay ... due to the lack of funds available to him when 16 payment is ordered.”). The remaining balance of the $350 total fee owed in this case must 17 be collected and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(1). 18 II. Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A 19 A. Standard of Review 20 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 21 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, 22 the Court must review and sua sponte dismiss an IFP complaint, and any complaint filed 23 by a prisoner seeking redress from a governmental entity, or officer or employee of a 24 governmental entity, which is frivolous, malicious, fails to state a claim, or seeks damages 25 from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 26 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 27 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to 28 ensure that the targets of frivolous or malicious suits need not bear the expense of 1 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler 2 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 3 All complaints must contain “a short and plain statement of the claim showing that 4 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 5 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 7 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a 8 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 9 reviewing court to draw on its judicial experience and common sense.” Id. The “mere 10 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 11 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 12 “The standard for determining whether a plaintiff has failed to state a claim upon 13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 15 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 16 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 17 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 18 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 19 as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal 20 quotation marks omitted); Wilhelm, 680 F.3d at 1121. 21 “When there are well-pleaded factual allegations, a court should assume their 22 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 23 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 24 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 25 allegations of material fact and must construe those facts in the light most favorable to the 26 plaintiff.”). However, while the court “ha[s] an obligation where the petitioner is pro se, 27 particularly in civil rights cases, to construe the pleadings liberally and to afford the 28 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 1 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply 2 essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the 3 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 4 B. Plaintiff’s Allegations 5 Plaintiff’s factual allegations are sparse. However, he claims he was “beaten, maced, 6 and was bitten” by a police dog “after being placed in handcuffs.” (Compl. at 3.) Plaintiff 7 identifies no specific individuals and instead only names “San Diego Sheriffs” as 8 Defendants. (Id. at 1-2.) Plaintiff also fails to give any specific factual details as to where 9 and when these events took place other than claiming they happened in an “alley behind 10 13th Street.” (Id. at 1.) He claims he was stopped while on his bicycle by a “man who 11 stepped out” of a black car and “pointed a gun” at him. (Id. at 6-7.) Plaintiff “ran away 12 from the man” and San Diego Sheriffs “were already on scene screaming for [him] to get 13 down.” (Id. at 7.) Plaintiff claims he was “punched” and pepper sprayed by unidentified 14 individuals. (Id. at 8.) Plaintiff was later taken by ambulance to a hospital to have his 15 “eyes flushed out” and his leg wound from the police dog treated. (Id. at 8.) 16 Plaintiff seeks $1,000,000 in compensatory damages and $1,000,000 in punitive 17 damages, along with the request to have “all medical bills paid.” (Id. at 11.) 18 C. Fourth Amendment claims 19 The Fourth Amendment prohibits “unreasonable searches and seizures,” and 20 “reasonableness is always the touchstone of Fourth Amendment analysis.” Birchfield v. 21 North Dakota, 136 S. Ct. 2160, 2186 (2016). Reasonableness is generally assessed by 22 carefully weighing “the nature and quality of the intrusion on the individual’s Fourth 23 Amendment interests against the importance of the governmental interests alleged to justify 24 the intrusion.” Tennessee v. Garner, 471 U.S. 1, 8 (1985) (internal quotation marks 25 omitted); Cty. of Los Angeles, Calif. v. Mendez, 137 S. Ct. 1539, 1546 (2017); Zion v. Cty 26 of Orange, 874 F.3d 1072, 1075 (9th Cir. 2017) (citing Graham v. Connor, 490 U.S. 368, 27 388 (1989)). 28 1 First, the Court finds that Plaintiff’s pleading offers no “factual content that allows 2 the court to draw the reasonable inference” that any individual person acted unlawfully 3 under the circumstances. See Iqbal, 556 U.S. at 678 (noting that while Plaintiff need not 4 plead “detailed factual allegations,” in order to state a plausible claim for relief, he must 5 provide “more than … unadorned, the-defendant-unlawfully-harmed-me accusations.”) 6 (citation omitted); see also Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009) 7 (discussing “integral participant” doctrine in context of Fourth Amendment excessive force 8 claims); Blankenhorn v. City of Orange, 485 F.3d 463, 481 n. 12 (9th Cir. 2007). While 9 some of Plaintiff’s claims are serious, his factual allegations, or lack thereof, are too vague 10 for the Court to find that he stated a claim against any specific individual. 11 Second, in order to state a Fourth Amendment claim of excessive force under 42 12 U.S.C. § 1983, Plaintiff must allege facts to plausibly show that each person acting “under 13 color of state law” violated his Fourth Amendment rights by using force which was 14 excessive given: “(1) the severity of the crime at issue, (2) [consideration of] whether the 15 [plaintiff] pose[d] an immediate threat to the safety of the officers or others, ... (3) whether 16 he [was] actively resisting arrest or attempting to evade arrest by flight,” and any other 17 “exigent circumstances [that] existed at the time of the arrest.” Chew v. Gates, 27 F.3d 18 1432, 1440-41 & n.5 (9th Cir. 1994) (citing Graham, 490 U.S. at 396); see also Brosseau 19 v. Haugen, 543 U.S. 194, 197 (2004). Here, the Court finds that Plaintiff’s Complaint lacks 20 sufficient specific factual allegations to support any elements of a Fourth Amendment 21 claim. Moreover, Plaintiff would need to make some effort to identify those whom he 22 claims were responsible for the alleged Fourth Amendment violations. Plaintiff does not 23 give any sort of factual allegation as to when these events allegedly took place. Plaintiff 24 also admits to running away from the individual who told him to “get down” and informed 25 Plaintiff that he had a warrant for his arrest. 26 While the Court will give Plaintiff leave to file an amended pleading, he must make 27 some effort to identify the individuals purportedly responsible for the constitutional 28 violations he alleges in his Complaint. He must also provide more specific factual 1 allegations with regard to the events that he raises in his Complaint. 2 D. Leave to Amend 3 In light of Plaintiff’s pro se status, the Court grants him leave to amend to attempt 4 to sufficiently allege a claim if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th 5 Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to amend 6 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the 7 deficiencies of the complaint could not be cured by amendment.’”), quoting Akhtar v. 8 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 9 III. Conclusion and Orders 10 For the reasons explained, the Court: 11 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 12 (ECF No. 5). 13 2. DIRECTS the Watch Commander of the GBDF, or their designee, to collect 14 from Plaintiff’s inmate trust account the $350 filing fee owed in this case by garnishing 15 monthly payments in an amount equal to twenty percent (20%) of the preceding month’s 16 income and forwarding those payments to the Clerk of the Court each time the amount in 17 the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST 18 BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 19 ACTION. 20 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 21 Commander, George Bailey Detention Facility, 446 Alta Road, Suite 5300, San Diego, 22 California 92158-0002. 23 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 24 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and 25 GRANTS him forty-five (45) days leave from the date of this Order in which to file an 26 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 27 Amended Complaint must be complete by itself without reference to his original pleading. 28 Defendants not named and any claim not re-alleged in his Amended Complaint will be 1 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 2 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 3 || original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 4 ||dismissed with leave to amend which are not re-alleged in an amended pleading may be 5 || “considered waived if not repled.”). 6 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 7 || will enter a final Order dismissing this civil action based both on Plaintiffs failure to state 8 claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 9 || 1915A(b), and his failure to prosecute in compliance with a court order requiring 10 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 11 take advantage of the opportunity to fix his complaint, a district court may convert the 12 || dismissal of the complaint into dismissal of the entire action.”). 13 5. The Clerk of Court is directed to mail Plaintiff a court approved civil rights 14 || complaint form for his use in amending. 15 IT IS SO ORDERED. 16 || Dated: May 3, 2022 € 17 Hon. Cathy Ann Bencivengo 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 8 oe Co