Mitchell v. Bennett

• Court: District Court, S.D. California
• Decided: October 21, 2022
• Docket: 3:22-cv-01011
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENYATTA QUINN MITCHELL Case No.: 3:22-cv-01011-DMS-RBB CDCR # BC0837, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS

15 [Doc. No. 2]; PAUL BENNETT, Supervising Parole 16 Officer, Chula Vista Parole Office; JANE (2) DISMISSING COMPLAINT 17 DOE, Parole Officer, Chula Vista Parole PURSUANT TO 28 U.S.C. § 1915(e)(2) Office, Defendants. AND § 1915A(b)(1); 18

19 (3) DENYING MOTION FOR LEAVE TO FILE AN AMENDED 20 COMPLAINT [ECF No. 5] AS 21 MOOT;

22 (4) DENYING MOTION FOR 23 APPOINTMENT OF COUNSEL [ECF No. 6] 24 25 Kenyatta Quinn Mitchell (“Plaintiff” or “Mitchell”), an inmate currently 26 incarcerated at the San Diego County Jail (“SDCJ”), filed a Complaint (“Compl.”) pursuant 27 to 42 U.S.C. § 1983 and a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 28 U.S.C. § 1915(a), on July 12, 2022. See ECF Nos. 1–2. Then, on August 22, 2022, Mitchell 1 filed a First Amended Complaint (“FAC”), ECF No. 3, and on October 11, 2022, he filed 2 a Motion for Leave to File an Amended Complaint, and a Motion to Appoint Counsel. See 3 ECF Nos. No. 5–6. Because Mitchell filed the FAC before the Court screened the original 4 Complaint, the FAC is the operative pleading in this case. See Lacey v. Maricopa County, 5 693 F.3d 896, 907, n.1 (9th Cir. 2012) (an amended complaint supersedes the original); 6 Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir.1990) (same). 7 I. Motion to Proceed IFP 8 All parties instituting any civil action, suit or proceeding in a district court of the 9 United States, except an application for writ of habeas corpus, must pay a filing fee of 10 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 11 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 12 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 13 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 14 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 15 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 16 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 17 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 18 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 19 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 20 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 21 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 22 trust account statement, the Court assesses an initial payment of 20% of (a) the average 23 monthly deposits in the account for the past six months, or (b) the average monthly balance 24 25 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 26 fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 27 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does not apply to persons granted leave to proceed IFP. Id. 28 1 in the account for the past six months, whichever is greater, unless the prisoner has no 2 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 3 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 4 month’s income, in any month in which his account exceeds $10, and forwards those 5 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 6 136 S. Ct. at 629. 7 In support of his IFP Motion, Mitchell has submitted a copy of his Inmate Account 8 Activity Report as well as a Prison Certificate completed by an accounting officer at the 9 Kern Valley State Prison, where he was confined at the time he filed the IFP motion. See 10 ECF No. 1 at 1; ECF No. 2 at 3–6; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 11 398 F.3d at 1119. These documents show he maintained an average monthly balance of 12 $263.23, and had average monthly deposits of $0.00 credited to his account over the 6- 13 month period immediately preceding the filing of his Complaint. His available balance as 14 of July 7, 2022 was $0.01. See Doc. No. 2 at 4. 15 Therefore, the Court GRANTS Mitchell’s Motion to Proceed IFP (Doc. No. 2) and 16 assesses no initial partial filing fee because his trust account statement shows he “has no 17 means to pay it.” See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner 18 be prohibited from bringing a civil action or appealing a civil action or criminal judgment 19 for the reason that the prisoner has no assets and no means by which to pay the initial partial 20 filing fee.”); Bruce, 577 U.S. at 86; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 21 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 22 solely on a “failure to pay ... due to the lack of funds available to him when payment is 23 ordered.”). The Court directs the agency having custody of Plaintiff to collect the entire 24 $350 balance of the filing fees required by 28 U.S.C. § 1914 and to forward them to the 25 Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 26 § 1915(b)(1). 27 / / / 28 / / / 1 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A 2 A. Standard of Review 3 Because Mitchell is a prisoner and is proceeding IFP, his Complaint requires a pre- 4 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, 5 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 6 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 7 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 8 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 9 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 10 targets of frivolous or malicious suits need not bear the expense of responding.’” 11 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted). 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.” Ashcroft v. Iqbal, 556 U.S. 20 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 21 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 22 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 23 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 24 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 25 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 26 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 27 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 28 / / / 1 B. Plaintiff’s factual allegations 2 Mitchell alleges that he has been “intentionally assaulted and battered by a parolee 3 from [Chuckawalla Valley State Prison] in violation of a restraining order while 4 negligently supervised by [Defendants].” FAC, ECF No. 3 at 3. On May 28, 2016, Mitchell 5 received threatening text messages from an individual he did not know. Id. at 5. Mitchell’s 6 girlfriend identified the individual texting Mitchell as her former boyfriend who was on 7 parole (“the parolee”) and against whom she had a restraining order. Id. Sometime between 8 June 1 and 10, 2016, the parolee, who Mitchell does not name, approached Mitchell and 9 his girlfriend while they were waiting for the bus and “became aggressive and belligerent.” 10 Id. Mitchell and his girlfriend left the area. Id. 11 A few days later, sometime between June 10 to 14, 2016, the parolee confronted 12 Mitchell and his girlfriend at a community resource center, demanded money, and 13 attempted to get Mitchell’s girlfriend to go with him. Id. at 6. The couple fled, but not 14 before the parolee assaulted Mitchell’s girlfriend by grabbing her arm and attempting to 15 kick her feet out from under her. Id. at 6–7. 16 Sometime between June 20 and 30, 2016, the parolee again confronted Mitchell and 17 his girlfriend while they were waiting for a bus. Id. at 7. The parolee hit Mitchell in the 18 face and the two struggled, but he and his girlfriend were able to escape by boarding the 19 bus. Id. Mitchell urged his girlfriend to report the parolee to his parole officers but she was 20 afraid to do so. Id. at 7–8. 21 Sometime between July 1 and 10, 2016, Mitchell and his girlfriend contacted the 22 parolee’s parole officer by phone. Id. at 8. No one answered and Mitchell left a message, 23 but it was never returned. Id. Then, sometime between July 20 and 30, 2016, Mitchel was 24 arrested “while taking a cell phone from a person at the Metropolitan Transit System [in 25 order] to contact authorities because the Plaintiff’s own phone had low-battery life.” Id. 26 Mitchell claims that “[t]his all occurred under duress due to the defendants inaction to 27 appropriately address the situation involving a parolee who was violating a restraining 28 order and who they were required to be supervising.” Id. 1 C. 42 U.S.C. § 1983 2 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 3 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 4 1063, 1067 (9th Cir. 2006). To state a claim under section 1983, Burgess must allege two 5 essential elements: (1) that a right secured by the Constitution or laws of the United States 6 was violated and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frey, 789 F.3d 1030, 8 1035‒36 (9th Cir. 2015). 9 D. Statute of Limitations 10 “A claim may be dismissed [for failing to state a claim] on the ground that it is barred 11 by the applicable statute of limitations only when ‘the running of the statute is apparent on 12 the face of the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 13 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 14 997 (9th Cir. 2006)). “‘A complaint cannot be dismissed unless it appears beyond doubt 15 that the plaintiff can prove no set of facts that would establish the timeliness of the claim.’” 16 Id. (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)); see also 17 Cervantes v. City of San Diego, 5 F.3d 1273, 1276-77 (9th Cir. 1993) (where the running 18 of the statute of limitations is apparent on the face of a complaint, dismissal for failure to 19 state a claim is proper, so long as Plaintiff is provided an opportunity to amend in order to 20 allege facts which, if proved, might support tolling); see also Tahoe-Sierra Pres. Council, 21 Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 788 (9th Cir. 2000) (court may raise 22 the defense of statute of limitations sua sponte), overruled on other grounds by Gonzalez 23 v. Arizona, 677 F.3d 383, 389 (9th Cir. 2011) (en banc); Hughes v. Lott, 350 F.3d 1157, 24 1163 (11th Cir. 2003) (upholding sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B) of 25 prisoner’s time-barred complaint). 26 Because section 1983 contains no specific statute of limitation, federal courts apply 27 the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393 28 F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); 1 Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). California’s statute of limitations for 2 personal injury actions is two years. Jones, 393 F.3d at 927 (citing CAL. CIV. PROC. CODE 3 § 335.1). The law of the forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 4 394 (2007) (citing Hardin v. Straub, 490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 927 5 (noting that in actions where the federal court borrows the state statute of limitation, the 6 federal court also borrows all applicable provisions for tolling the limitations period found 7 in state law). Under California law, the statute of limitations for prisoners serving less than 8 a life sentence is tolled for two years. CAL. CIV. PROC. CODE § 352.1(a); Johnson v. 9 California, 207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 U.S. 499 10 (2005). Accordingly, the effective statute of limitations for most California prisoners is 11 three years for claims accruing before January 1, 2003 (one year limitations period plus 12 two year statutory tolling), and four years for claims accruing thereafter (two year 13 limitations period plus two years statutory tolling). 14 Unlike the length of the limitations period, however, “the accrual date of a § 1983 15 cause of action is a question of federal law that is not resolved by reference to state law.” 16 Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543-44 (federal law governs when a § 1983 17 cause of action accrues). “Under the traditional rule of accrual . . . the tort cause of action 18 accrues, and the statute of limitation begins to run, when the wrongful act or omission 19 results in damages.” Wallace, 549 U.S. at 391. Put another way, “[u]nder federal law, a 20 claim accrues when the plaintiff knows or has reason to know of the injury which is the 21 basis of the action.” Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174 F.3d 987, 991 22 (9th Cir. 1999). 23 It is clear from the face of the FAC that Mitchell was not a prisoner at the time of 24 the alleged Constitutional violations, see FAC, ECF No. 3, and thus, he is not entitled to 25 the tolling provisions of § 352.1(a). The last event detailed by Mitchell in his FAC occurred 26 on July 10, 2016, and therefore the statute of limitations for his claims expired at the latest 27 on July 10, 2018. See id. at 8. Mitchell filed his original Complaint raising these claims on 28 July 12, 2022, and his FAC on August 22, 2022. See ECF Nos. 1, 3. Even if Mitchell was 1 entitled to the two-year tolling provision of Cal. Civ. Proc. Code § 352.1(a), the statute of 2 limitations for his claims would have expired on July 10, 2020. Consequently, based on 3 the face of Mitchell’s own pleading, it is clear his claims fall outside California’s two-year 4 statute of limitations, even including all presumed periods of tolling provided by statute. 5 See Wallace, 591 U.S. at 391; Maldonado, 370 F.3d at 955; CAL. CODE CIV. PROC. § 335.1 6 (tolling statute of limitations “for a maximum of 2 years” during a prisoner’s incarceration). 7 Mitchell’s claims could be considered timely if, in his Complaint, he alleges facts 8 sufficient to show the limitations period may be equitably tolled. See Cervantes, 5 F.3d at 9 1276-77. Generally, federal courts also apply the forum state’s law regarding equitable 10 tolling. Fink, 192 F.3d at 914; Bacon v. City of Los Angeles, 843 F.2d 372, 374 (9th 11 Cir.1988). Under California law, however, Plaintiff must meet three conditions to equitably 12 toll the statute of limitations: (1) he must have diligently pursued his claim; (2) his situation 13 must be the product of forces beyond his control; and (3) Defendants must not be 14 prejudiced by the application of equitable tolling. See Hull v. Central Pathology Serv. Med. 15 Clinic, 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994); Addison v. State of California, 16 21 Cal.3d 313, 316-17 (Cal. 1978); Fink, 192 F.3d at 916. 17 Mitchell states he was arrested sometime between July 20 and 30, 2016. But he has 18 failed to plead any facts which would explain why he did not diligently pursue this claim 19 or what “forces beyond his control” prevented him from filing this action earlier. Thus, he 20 has not plausibly alleged a claim for equitable tolling. See Cervantes, 5 F.3d at 1277; Iqbal, 21 556 U.S. at 679; Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th Cir. 1993) (plaintiff carries 22 the burden to plead facts which would give rise to equitable tolling); see also Kleinhammer 23 v. City of Paso Robles, 385 Fed. Appx. 642, 643 (9th Cir. 2010). Accordingly, the Court 24 finds the running of the statute of limitations is apparent on the face of Mitchell’s FAC, 25 and therefore he has failed to state a claim upon which section 1983 relief may be granted. 26 See 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b)(1). 27 / / / 28 / / / 1 III. Motion for Leave to File Amended Complaint [ECF No. 5] 2 Pursuant to Fed. R. Civ. P. 15(a)(1), a party may amend their pleading once 3 as a matter of course within “21 days after service of a responsive pleading or 21 days after 4 service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 5 15(a)(1). In this case, the Defendants have not yet been served. Accordingly, Mitchell was 6 entitled to file his FAC as a matter of course and the Court has deemed Mitchell’s FAC as 7 the operative pleading in this case. See Lacey, 693 F.3d at 907, n.1; Hal Roach Studios, 8 896 F.2d at 1546. His Motion for Leave to File an Amended Complaint is DENIED as 9 moot. 10 IV. Motion for Appointment of Counsel [ECF No. 6] 11 Mitchell asks this Court to appoint counsel because he has been granted IFP status,2 12 his incarceration will make it difficult to pursue his case, his claims are meritorious, and 13 he is unable to find counsel he can afford. Mot. to Appt. Counsel, ECF No. 6. There is no 14 constitutional right to counsel in a civil case and the decision to appoint counsel under 28 15 U.S.C. § 1915(e)(1) is within “the sound discretion of the trial court and is granted only in 16 exception circumstances.” Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th 17 Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (noting that only 18 “exceptional circumstances” support such a discretionary appointment). Exceptional 19 circumstances exist where there is cumulative showing of both a likelihood of success on 20 the merits and an inability of the pro se litigant to articulate his claims in light of their legal 21 complexity. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 22 Mitchell’s FAC demonstrates that while not formally trained in law he is capable of 23 legibly articulating the facts and circumstances relevant to his claims. Because Defendants 24 have yet to respond to the FAC, a determination regarding the likelihood of success on the 25 26 27 2 At the time Mitchell file his Motion for Appointment of Counsel, he had not yet been 28 1 merits or Mitchell’s ability to prosecute this matter is premature. Indeed, the Court has 2 determined at this juncture that his claims are barred by the statute of limitations. 3 Exceptional circumstances warranting appointment of counsel do not exist at this time. See 4 Agyeman, 390 F.3d at 1103. Thus, the Court DENIES Mitchell’s request for appointment 5 of counsel without prejudice to him renewing the request if he wishes to do so at a later 6 stage of these proceedings. 7 V. Conclusion and Order 8 For the reasons explained, the Court: 9 (1) GRANTS Plaintiff’s Motion to Proceed IFP [ECF No. 2] pursuant to 28 U.S.C. 10 § 1915(a). 11 (2) DIRECTS the Watch Commander of the SDCJ, or the person having custody 12 of Plaintiff, to collect from Plaintiff’s inmate trust account the $350 filing fee owed in this 13 case by garnishing monthly payments in an amount equal to twenty percent (20%) of the 14 preceding month’s income and forwarding those payments to the Clerk of the Court each 15 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 16 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 17 ASSIGNED TO THIS ACTION. 18 (3) DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 19 Commander, San Diego County Jail., 1173 Front Street, San Diego, California, 92101. 20 (4) DISMISSES Plaintiff’s Complaint for failing to state a claim pursuant to 28 21 U.S.C. § 1915(e)(2) and § 1915A 22 (5) GRANTS Plaintiff forty-five (45) days leave from the date of this Order to file 23 an Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 24 Amended Complaint must be complete in itself without reference to his original pleading. 25 Defendants not named and any claims not re-alleged in the Amended Complaint will be 26 considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 27 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 28 original.”); Lacey, 693 F.3d at 928 (noting that claims dismissed with leave to amend which 1 || are not re-alleged in an amended pleading may be “considered waived if not repled.”). The 2 || Clerk of the Court is DIRECTED to mail Plaintiff a court approved civil rights complaint 3 || form for his use in amending 4 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 5 || will enter a final Order dismissing this civil action based both on Plaintiff's failure to state 6 ||a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, 7 his failure to prosecute in compliance with a court order requiring amendment. See 8 || Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage 9 ||of the opportunity to fix his complaint, a district court may convert the dismissal of the 10 |}complaint into dismissal of the entire action.’’) 1] (6) DENIES Plaintiff's Motion for Leave to File an Amended Complaint [ECF No. 12 ||5] as moot. 13 (7) DENIES Plaintiff's Motion for Appointment of Counsel without prejudice. 14 || [ECF No. 6]. 15 IT IS SO ORDERED. 16 Dated: October 21, 2022 2 in Yn: L4\ 7 Hon. Dana M. Sabraw, Chief Judge United States District Court 18 19 20 21 22 23 24 25 26 27 28 Il