Solorio v. Doe (1)

• Court: District Court, S.D. California
• Decided: January 21, 2020
• Docket: 3:19-cv-02193
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DIONICIO SOLORIO, Case No.: 19cv2193-JAH (MDD) CDCR #AN-6346, 12 ORDER: Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 [ECF No. 2] M. L. MONTGOMERY, Warden and 16 JOHN DOES 1 & 2 Correctional Officers, AND 17 Defendants. 2) DISMISSING COMPLAINT FOR 18 FAILING TO STATE A CLAIM 19 PURSUANT TO 28 U.S.C. § 1915(e)(2) AND 28 U.S.C. § 1915A(b) 20 21 22 On November 18, 2019, Plaintiff Dionico Solorio, a California state prisoner 23 incarcerated at Calipatria State Prison (“Calipatria”) in Calipatria, California, filed this civil 24 rights action pursuant to 42 U.S.C. § 1983 alleging two John Doe Correctional Officers 25 used excessive force in violation of the Eighth Amendment by shooting him during a fight 26 and that Warden Montgomery failed to adequately train them. (ECF No. 1.) He has not 27 prepaid the civil filing fee required by 28 U.S.C. § 1914(a), but has filed a Motion to 28 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.) 1 I. IFP Motion 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). Section 7 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a “certified copy 8 of the trust fund account statement (or institutional equivalent) for . . . the 6-month period 9 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 10 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 11 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 12 for the past six months, or (b) the average monthly balance in the account for the past six 13 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 14 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects 15 subsequent payments, assessed at 20% of the preceding month’s income, in any month in 16 which his account exceeds $10, and forwards those payments to the Court until the entire 17 filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. Prisoners who are 18 granted leave to proceed IFP remain obligated to pay the entire fee in monthly installments 19 regardless of whether their action is ultimately dismissed. Bruce v. Samuels, 577 U.S. ___, 20 ___, 136 S. Ct. 627, 629 (2016); 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 21 F.3d 844, 847 (9th Cir. 2002). 22 In support of his IFP Motion, Plaintiff has submitted copies of his California 23 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report and 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does 28 1 Prison Certificate attested by a CDCR trust account official. (ECF No. 2 at 4-8). These 2 documents show that he had an average monthly balance of $141.00 and average monthly 3 deposits of $25.00 for the 6-months preceding the filing of this action, but an available 4 balance of zero at the time of filing. (Id.) 5 The Court GRANTS Plaintiff’s Motion to Proceed IFP, declines to exact any initial 6 filing fee because his prison certificates indicate he may have “no means to pay it,” Bruce, 7 136 S. Ct. at 629, and directs the Secretary of the California Department of Corrections 8 and Rehabilitation (“CDCR”), or his designee, to instead collect the entire $350 balance of 9 the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court 10 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 11 II. Screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 12 A. Standard of Review 13 Because Petitioner is a prisoner and is proceeding IFP, his Complaint requires a pre- 14 Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 15 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, 16 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who 17 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 18 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 19 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of § 1915A is to ensure that the 20 targets of frivolous or malicious suits need not bear the expense of responding.” Nordstrom 21 v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (internal quote marks omitted). 22 “The standard for determining whether a plaintiff has failed to state a claim upon 23 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 24 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 25 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 26 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 27 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 28 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 1 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 2 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 3 (2007). 4 B. 42 U.S.C. § 1983 5 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, 6 privileges, or immunities secured by the Constitution and laws” of the United States. Wyatt 7 v. Cole, 504 U.S. 158, 161 (1992). “To state a claim under § 1983, a plaintiff must allege 8 the violation of a right secured by the Constitution and laws of the United States, and must 9 show that the alleged depribation was committed by a person acting under color of state 10 law.” West v. Atkins, 487 U.S. 42, 48 (1988). 11 Plaintiff’s Complaint presents a single cause of action for violation of his Eighth 12 Amendment right to be free from cruel and unusual punishment arising from the use of 13 excessive force. (ECF No. 1 at 3.) He alleges that on the morning of November 16, 2016, 14 while housed at Calipatria, he was waiting in line for breakfast when a fist fight started 15 behind him. (Id. at 4.) Plaintiff states that he tried to move away but became pinned to the 16 wall by the two fighting inmates, one of whom was his cellmate, and “found himself being 17 hit from every direction, at which point he tried to defend himself but couldn’t.” (Id.) 18 Plaintiff “heard a shot from a 40 mm gun and felt the impact of a round on the top of his 19 head. He couldn’t see because there was blood running from the top of his head into his 20 eyes. Then he heard another shot from the 40 mm gun and felt the impact of that round on 21 the right side of his face and right eye.” (Id.) 22 Plaintiff states he was stunned by the impact of the rounds, could not see because 23 blood was in his eyes, his ears were ringing, and nearly lost consciousness as the fighting 24 stopped. (Id.) He was transported for medical treatment to the Central Health Triage 25 Center at Centinela, and from there taken to the Brawley Medical Center where doctors 26 used eleven sutures to close his head wound. (Id.) The Brawley Medical Center was unable 27 to treat his eye injuries and he was taken by air ambulance to the Desert Regional Trauma 28 Center where he received a cat-scan and was found to have a broken right orbital socket 1 with a concussion. (Id. at 4-5.) He claims his injuries “are the direct result of plaintiff 2 being intentionally shot ‘twice’ in the head and face area by vindictive maliciously 3 negligent Correctional Officers with a 40 mm Impact Round.” (Id. at 5.) 4 “[A] prison official violates the [Cruel and Unusual Punishments Clause of the] 5 Eighth Amendment when two requirements are met. First, the deprivation alleged must 6 be, objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994). 7 Second, Plaintiff must allege the prison official he seeks to hold liable had a “‘sufficiently 8 culpable state of mind’ . . . [T]hat state of mind is one of ‘deliberate indifference’ to inmate 9 health or safety.” Id. A prison official can be held liable only if he “knows of and 10 disregards an excessive risk to inmate health and safety;” . . . he “must both be aware of 11 facts from which the inference could be drawn that a substantial risk of serious harm exists, 12 and he must also draw the inference.” Id. at 837. 13 For claims arising from the use of excessive force, the issue is “whether force was 14 applied in a good-faith effort to maintain or restore discipline, or maliciously and 15 sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). When alleging a 16 breach of the duty to protect prisoners, a plaintiff must “show that the officials acted with 17 deliberate indifference to the threat of serious harm or injury to an inmate.” Labatad v. 18 Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013). 19 Plaintiff alleges that the two John Doe Correctional Officers who fired the two 20 rounds which hit him were “vindictive [and] maliciously negligent.” (ECF No. 5.) The 21 facts as alleged in the Complaint, that Plaintiff was involved in a fist fight with two other 22 inmates, albeit inadvertently and attempting to defend himself, which was broken up by 23 two Correctional Officers who fired rounds which hit Plaintiff and injured him, do not 24 satisfy the pleading requirement that the officers were not acting in a good-faith effort to 25 stop the fight but were acting maliciously or sadistically to cause Plaintiff harm. The use 26 of the terms “vindictive [and] maliciously negligent” to describe the officers’ behavior are 27 conclusory allegations without factual support and as such do not plead an Eighth 28 Amendment violation. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of 1 a cause of action, supported by mere conclusory statements, do not suffice” to state a 2 § 1983 claim). If Plaintiff wishes to proceed with this claim, he must allege facts which, 3 if proven, show that the two Correctional Officers were not acting in a good faith effort to 4 break up the fight which he admits he was engaged in, albeit inadvertently and while 5 attempting to defend himself, but acting maliciously and sadistically in order to cause him 6 harm. Accordingly, the Complaint must be dismissed for failing to state a claim pursuant 7 to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). Watison, 668 F.3d at 1112; Wilhelm, 8 680 F.3d at 1121. 9 C. Doe Pleading & Individual Liability 10 Plaintiff has identified the two Calipatria Correctional Officers who he alleges shot 11 him as John Doe Defendants. The Federal Rules of Civil Procedure do not authorize or 12 prohibit the use of fictitious parties, but Rule 10 does require a plaintiff to include the 13 names of all parties in his complaint. See Fed. R. Civ. P. 10(a). Courts especially disfavor 14 Doe pleading in an IFP case because in the event the plaintiff’s complaint alleges a 15 plausible claim for relief, it is effectively impossible for the United States Marshal or 16 deputy marshal to fulfill his or her duty to serve an unnamed defendant. See Fed. R. Civ. 17 P. 4(c)(3); 28 U.S.C. § 1915(d). Plaintiff may seek discovery to obtain the names of the 18 Does and later amend his pleading in order to substitute the true names of those defendants, 19 unless it is clear that discovery will not uncover their identities, or that his complaint is 20 subject to dismissal on other grounds. See Wakefield v. Thompson, 177 F.3d 1160, 1163 21 (9th Cir. 1999), citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (“As a 22 general rule, the use of ‘John Doe’ to identify a defendant is not favored.”) 23 The only other Defendant named in the Complaint is the Warden of Calipatria, who 24 Plaintiff seeks to hold liable for a failure to train the two Correctional Officers who 25 allegedly shot him. (ECF No. 1 at 2.) The simple role as a supervisory official is 26 insufficient to support a personal misconduct claim under § 1983. See Iqbal, 556 U.S. at 27 677 (“[E]ach government official [in a § 1983 suit], his or her own title notwithstanding, 28 is only liable for his or her own misconduct.”) In order to state a § 1983 claim based on a 1 failure to train, Plaintiff must allege that Warden Montgomery “was deliberately indifferent 2 to the need to train subordinates, and the lack of training actually caused the constitutional 3 harm or deprivation of rights.” Flores v County of Los Angeles, 758 F.3d 1154, 1159 (9th 4 Cir. 2014), citing Connick v. Thompson, 563 U.S. 51, 58 (2011). Plaintiff must also allege 5 a pattern of similar constitutional violations because isolated incidents are insufficient to 6 allege that Warden Montgomery was put on “notice that a course of training is deficient in 7 a particular respect” and that “the absence of such a course will cause violations of 8 constitutional rights.” Id. The Complaint as presently drafted fails to allege facts which if 9 proven would support a § 1983 claim against Warden Montgomery. 10 Accordingly, the Court also dismisses Plaintiff’s Complaint as to Defendant Warden 11 Montgomery for failure to state a plausible claim for relief. See 28 U.S.C. 12 § 1915(e)(2)(B)(ii), § 1915A(b); Iqbal, 556 U.S. at 678. 13 To the extent Plaintiff seeks to bring a claim for negligence under state law, the 14 Court may “decline to exercise supplemental jurisdiction” over any supplemental state law 15 claim if it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. 16 § 1367(c); Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n the 17 usual case in which all federal-law claims are eliminated before trial, the balance of factors 18 to be considered under the pendent jurisdiction doctrine . . . will point toward declining to 19 exercise jurisdiction over the remaining state-law claims.”) Because the Court dismissed 20 Plaintiff’s federal law claim, the Court declines to exercise supplemental jurisdiction over 21 any state law negligence claim to the extent he sought to bring such a claim. 22 D. Leave to Amend 23 In light of Plaintiff’s pro se status, the Court grants him leave to amend his pleading 24 to attempt to sufficiently allege a § 1983 claim if he can. See Rosati v. Igbinoso, 791 F.3d 25 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint without 26 leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that 27 the deficiencies of the complaint could not be cured by amendment.’”), quoting Akhtar v. 28 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 1 III. Conclusion and Orders 2 For all the reasons discussed, the Court: 3 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). 4 (ECF No. 2.) 5 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 6 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly 7 payments from the account in an amount equal to twenty percent (20%) of the preceding 8 month’s income and forward payments to the Clerk of the Court each time the amount in 9 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 10 MUST CLEARLY IDENTIFY THE NAME AND CASE NUMBER ASSIGNED TO 11 THIS ACTION. 12 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, 13 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 14 4. DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim 15 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and GRANTS him 45 leave 16 from the date of this Order in which to file an Amended Complaint which cures the 17 deficiencies of pleading noted. Any amended complaint must be complete by itself without 18 reference to an original pleading. Defendants not named and any claim not re-alleged in 19 his Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach 20 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 21 amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 22 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged 23 in an amended pleading may be “considered waived if not repled.”) 24 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter 25 a final Order dismissing this civil action based both on his failure to state a claim upon 26 which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and his 27 failure to prosecute in compliance with a court order requiring amendment. See Lira v. 28 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 1 |/the opportunity to fix his complaint, a district court may convert the dismissal of the 2 ||complaint into dismissal of the entire action.’’) 3 IT IS SO ORDERED. 4 || Dated: January 20, 2020 VU 5 Hof. John A. Houston 6 Upited States District Judge 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9