FRANCISCO JAVIER MOTA, Case No.: 3:20-cv-1863-LAB-RBM Booking #19742313, ORDER Plaintiff, vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
(ECF No. 2); JASON WHITE; JOSEPH
PUTULOWSKI; KAIKO, 2) DISMISSING CLAIMS AND Defendants. DEFENDANTS PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND 28 U.S.C. § 1915A(b);
AND 3) STAYING CASE Francisco Javier Mota (“Plaintiff”), currently incarcerated at San Diego County Sheriff’s Department’s Vista Detention Facility (“VDF”), and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. Section 1983. (See Compl, ECF No. 1.) Plaintiff did not prepay the civil filing fee required by 28 U.S.C. Section 1914(a) at the time he submitted his Complaint, but instead has filed Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (See ECF No. 2.) I. Motion to Proceed In Forma Pauperis All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects subsequent payments, assessed at 20% of the preceding month’s income, in any month in which his account exceeds $10, and forwards those
1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Oct. 1, 2019)). The additional $50 administrative fee does not apply to persons granted leave to proceed payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust account statement pursuant to 28 U.S.C. Section 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2. Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account activity, as well as the attached prison certificate verifying his available balances. (See ECF No. 9, at 6-8.) These documents show that Plaintiff carried an average monthly balance of $100.00 and had average monthly deposits to his trust account of $30.00 for the six months preceding the filing of this action, Plaintiff had an available balance of just $10.68 at the time of filing. (See id.) Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and declines to impose the initial partial filing fee pursuant to 28 U.S.C. Section 1915(b)(1) because his prison certificate indicates he may currently have “no means to pay it.” See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. Section 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when payment is ordered.”). Instead, the Court directs the Watch Commander of VDF, or his designee, to collect the entire $350 balance of the filing fees required by 28 U.S.C. Section 1914 and to forward them to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. Section 1915(b)(1). II. Sua Sponte Screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b) A. Standard of Review Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- answer screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). B. Plaintiff’s Factual Allegations Plaintiff alleges that Defendants—Escondido Police Officers White and /// Putulowski, and a police service dog, Kaiko—violated his Eighth Amendment and Fourteenth Amendment rights when they used excessive force to arrest Plaintiff on April 23, 2019. (See Compl. at 3, 8.) Defendants responded to a report that Plaintiff was wandering around an isolated lot in Escondido in his vehicle. (See Compl. at 5.) Defendant White was the first to arrive and identified Plaintiff as the driver. (See id.) Shortly thereafter, Defendant Putulowski arrived with his service dog, Defendant Kaiko. (See id.) Although Plaintiff does not allege the details of the events that followed in his Complaint, in the course of arresting Plaintiff, Defendant White allegedly fired a “shotgun or non[-]lethal projectile round [at] Plaintiff,” which caused injuries. (See id. at 3.) Plaintiff alleges that he was hit by five beanbag rounds. (See id.) Subsequently, Defendant Putulowski released Defendant Kaiko, who “bit and [tore Plaintiff’s] left for[e]arm,” causing scarring and nerve damage, among other injuries. (See id.) Plaintiff alleges that he was unarmed and collapsed in his car through the entire incident. (See id.) Plaintiff seeks $1 million each in compensatory and punitive damages, and dismissal with prejudice of the pending state charges against him. (See id. at 4.) C. Analysis 1. Claims against Defendant Kaiko Plaintiff’s claims against Defendant Kaiko be dismissed. Because liability under Section 1983 is limited to “person[s]” who violate constitutional rights under color of state law, see 42 U.S.C. § 1983, a dog is not a proper defendant in a Section 1983 case. See Stuart v. Mills, No. CV 16-02158-GHK (RAO), 2016 WL 8738859, at *1 (C.D. Cal. Sept. 21, 2016) (“A dog is not a proper defendant in litigation under § 1983.” (collecting
2 The Court’s docket currently identifies Defendant Putulowski as Defendant “Pulutowski,” and Plaintiff appears to use the two spellings interchangeably. (See Compl. at 2-3.) According to the police reports attached as exhibits to Plaintiff’s Complaint, however, the Court finds the correct spelling is “Putulowski.” (See id. at 5.) Accordingly, the Court DIRECTS the Clerk of the Court to correct the cases)); see also Rodriguez v. Police Dog Kubo, No. 1:11cv01371 LJO DLB, 2011 WL 3687608, at *2 (E.D. Cal. Aug. 23, 2011) (“A police dog is not a ‘person’ subject to liability under § 1983.”). Accordingly, Plaintiff’s claims against Defendant Kaiko are dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. 1915A(b). While the Court would ordinarily grant Plaintiff leave to amend in light of his pro se status, the Court finds that granting leave to amend with respect to Defendant Kaiko would be futile. See Lopez, 203 F.3d at 1127. Accordingly, the claims against Defendant Kaiko are dismissed without leave to amend. 2. Younger Abstention Federal courts must abstain from interfering with pending state court proceedings absent extraordinary circumstances. See Younger v. Harris, 401 U.S. 37, 53-54 (1971). In fact, “federal-court abstention is required” when there is a “parallel, pending state criminal proceeding.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013). “A court may consider sua sponte whether Younger abstention should be invoked at any point in the litigation.” Renteria v. San Diego Police Dep’t, No. 19-cv-00952-BAS-JLB, 2019 WL 2436565, at *4 (S.D. Cal. June 11, 2019) (citing H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000)) (citations omitted) Younger abstention is appropriate when three conditions are satisfied: (1) state criminal proceedings are ongoing, (2) those proceedings implicate important state interests, and (3) state proceedings provide an adequate opportunity to raise federal questions. See Middlesex Cnty. Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). “[O]nce the three Middlesex elements are satisfied, the court does not automatically abstain, but abstains only if there is a Younger-based reason to abstain— i.e., if the court’s action would enjoin or have the practical effect of enjoining, ongoing state court proceedings.” AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1149 (9th Cir. 2007) (emphasis in original) (citing Gilbertson v. Albright, 381 F.3d 965, 978 (9th Cir. 2004)). As currently alleged, the three conditions for Younger abstention are satisfied. First, Plaintiff alleges that his state criminal case is ongoing, and he requests that this Court order that the criminal charges against him be “[d]ismiss[ed] . . . with prejudice no refile [sic].” (Compl. at 4.) Second, the criminal proceedings against Plaintiff implicate the State’s important interests in enforcing its criminal laws. See Sprint, 571 U.S. at 72. Third, there is no procedural bar to Plaintiff raising claims of excessive force in his state criminal proceedings. See Voychuk v. California, No. 2:05CV2007-MCE-GGH, 2006 WL 738796, at *2 (E.D. Cal. Mar. 22, 2006) (concluding that state proceedings provided an adequate opportunity to raise federal questions regarding excessive force (citing People v. Olguin, 119 Cal. App. 3d 39, 46 (1981))). As mentioned, however, Younger abstention is not always required when these three conditions are satisfied. Abstention is nevertheless required in this case because evaluating Plaintiff’s excessive force claims at this time would have the practical effect of intruding on the criminal proceedings against Plaintiff. According to the San Diego County Sheriff’s Department’s website, Plaintiff faces pending charges for, among other things, Obstructing an Executive Officer in violation of California Penal Code Section 69. See https://apps.sdsheriff.net/wij/wijDetail.aspx?BookNum=%2f8aC4KmgTXRE92t3sL2%2f %2byg7tQvQY4q%2f6PcGlcD2t%2fo%3d (last accessed November 30, 2020).3 As other courts have recognized, Younger abstention is warranted when a plaintiff asserts Section 1983 claims of excessive force related to their arrest in federal court while simultaneously facing pending criminal charges of resisting arrest or a similar offense in state court. See, e.g., Jones v. Cnty. of Contra Costa, No. 13-cv-05552-TEH, 2014 WL 1411205, at *3 (N.D. Cal. Apr. 11, 2014) (“Any ruling by this Court would . . . necessarily intrude on the state criminal matter also seeking to pass judgment on
3 The Court may take judicial notice of public records available on online inmate locators. See, e.g., Turner v. Cnty. of San Diego, No. 3:20-cv-00163-JAH-AHG, 2020 WL 905633, at *1 n.1 (S.D. Cal. Feb. 25, 2020) (taking judicial notice of detainee’s booking information available on San Diego [plaintiff’s] resistance.” (citing Cal. Penal Code § 69)); see also Whitton v. Mortimer, No. 2:15-cv-01399-APG-PAL, 2016 WL 3179462, at *4 (D. Nev. Apr. 28, 2016) (staying Section 1983 excessive force claims where plaintiff faced prosecution under Nevada law for resisting arrest because “[t]o rule on the constitutional issue in these circumstances would impermissibly risk interfering with the State of Nevada’s administration of its judicial system.”). Plaintiff seeks both damages and injunctive relief in this case. (See Compl. at 4.) Although “in most situations Younger abstention requires dismissal,” “[t]he Ninth Circuit . . . has held that where a plaintiff seeks money damages rather than injunctive relief, the Court should stay the action until the termination of the state court proceedings rather than dismiss the action without prejudice.” See Davis v. O’Connor, No. 18cv2824- LAB (LL), 2019 WL 290571, at *2 (S.D. Cal. Jan. 23, 2019) (citing Gilbertson, 381 F.3d at 981-82). Dismissal is the appropriate remedy, however, with respect to claims for injunctive relief. See Gilbertson, 381 F.3d at 981. As a result, Plaintiff’s claim seeking dismissal of the state criminal charges against him must be dismissed with prejudice. See id. (stating that abstention from injunctive relief claims under Younger should result in “permanent[]” dismissal (emphasis omitted)). Depending on the outcome of Plaintiff’s state criminal case he may be able to state claims for damages against Defendants White and Putulowski in their individual capacities, but such claims may not continue at least until after the criminal case against him is resolved. See Wallace v. Kato, 549 U.S. 384, 394 (2007) (“If the plaintiff is ultimately convicted, and if the stayed civil suit would impugn that conviction, Heck [v. Humphrey, 512 U.S. 477 (1994),] will require dismissal; otherwise, the civil action will proceed, absent some other bar to suit.”). Accordingly, the Court STAYS this action pending the termination of the underlying state criminal proceedings. See Gilbertson, 381 F.3d at 981-82. Plaintiff shall report to the Court regarding the outcome of the criminal proceedings and whether or not he intends to proceed with this action within thirty (30) days after their conclusion, which includes the conclusion of any direct review on appeal. See New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 369 (1989) (“For Younger purposes, the State’s trial-and-appeals process is treated as a unitary system, and for a federal court to disrupt its integrity by intervening in mid-process would demonstrate a lack of respect for the State as sovereign.”). If there is no longer a need to abstain at that time, the Court will reopen this action, lift the stay, and issue a further order screening Plaintiff’s Complaint pursuant to 28 U.S.C. Section 1915(e)(2) and 28 U.S.C. Section 1915A(b) and/or directing the U.S. Marshals to affect service on Defendants White and Putulowski on Plaintiff’s behalf if necessary. Absent a compelling reason, no motions will be permitted during the pendency of the stay, and because the Court has not ordered service of process upon Defendants, Plaintiff may not seek discovery in this Court while the case is stayed. See Fed. R. Civ. P. 26(d)(1) (specifying that “[a] party may not seek discovery from any source” until holding the initial discovery planning conference required by Federal Rule of Civil Procedure 26(f)). III. Conclusion and Orders Good cause appearing, the Court: 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. Section 1915(a) (ECF No. 2). 2. DIRECTS the Watch Commander of VDF, or his designee, to collect from Plaintiff’s inmate trust account the $350 filing fee owed in this case by garnishing monthly payments in an amount equal to twenty percent (20%) of the preceding month’s income and forwarding those payments to the Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28 U.S.C. Section 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch Commander, Vista Detention Facility, 325 S. Melrose Dr., Vista, CA 92081 and to correct the spelling of Defendant Joseph Putulowski’s name in the case caption. /// 4. DISMISSES without leave to amend Plaintiff's claims against Defendant Kaiko and his claim for an order directing dismissal of the state criminal charges against him for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii) and Section 1915A(b). The Court further DIRECTS the Clerk of the Court to terminate Defendant Kaiko as a party to this action. 5. STAYS this action pending the termination of Plaintiff's underlying state criminal proceedings and DIRECTS Plaintiff to report to the Court within thirty (30) days the conclusion of his criminal proceedings, which includes the conclusion of any direct review on appeal, of the outcome of the criminal proceedings and whether or not he /intends to proceed with this action. If there is no longer a need to abstain, the Court will /reopen this action and issue a further order screening Plaintiff's Complaint pursuant to 28 U.S.C. Section 1915(e)(2) and 28 U.S.C. Section 1915A(b) and/or directing the U.S. Marshals to affect service on Defendants White and Putulowski on Plaintiff's behalf. 6. DIRECTS the Clerk of the Court to note that this action is stayed and to administratively close the case. Dated: December 1, 2020 / ub / 4 ( 1 Vy Hon. Larry Alan Burns Chief United States District Judge 10