Spatcher v. Baird

• Court: District Court, S.D. California
• Decided: October 24, 2019
• Docket: 3:19-cv-01936
• Status: Unknown

Opinion

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7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9

10 GREGORY LEON SPATCHER, Case No.: 19cv1936 11 CDCR #BJ-9222, 12 Plaintiff, 1) GRANTING MOTION TO PROCEED IN FORMA 13 vs. PAUPERIS [ECF No. 2]; 14 AND 15 NORI BAIRD; TRI CITY MEDICAL 2) DISMISSING COMPLAINT FOR CENTER; OCEANSIDE POLICE 16 FAILING TO STATE A CLAIM DEP’T, 17 PURSUANT TO 28 U.S.C. § Defendants. 1915(e)(2) & 28 U.S.C. § 1915A(b) 18 [ECF No. 1] 19 20 Gregory Leon Spatcher (“Plaintiff”), currently incarcerated at the California 21 Institution for Men (“CIM”) in Chino, California and proceeding pro se, has filed a civil 22 rights complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff did not 23 prepay the civil filing fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; 24 instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 25 § 1915(a). (ECF No. 2.) 26 I. MOTION TO PROCEED IFP 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, 4 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in 5 “increments” or “installments,” Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 6 and regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) 7 & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 8 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 9 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6- 10 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 11 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 12 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 13 in the account for the past six months, or (b) the average monthly balance in the account 14 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 15 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner 16 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 17 any month in which his account exceeds $10, and forwards those payments to the Court 18 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce v. Samuels, __ U.S. 19 __, 136 S. Ct. 627, 629 (2016). 20 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 21 Statement Report. See ECF No. 2 at 3; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; 22 Andrews, 398 F.3d at 1119. This statement shows that Plaintiff only had $0.07 in his 23 account at the time he filed this action. Because Plaintiff’s available balance was 24 insufficient to impose an initial partial filing fee at the time of filing, the Court will not 25 direct the Secretary of the CDCR, or his designee, to collect an initial partial filing fee at 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 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 not apply to persons granted leave to proceed 28 1 this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 2 prohibited from bringing a civil action or appealing a civil action or criminal judgment for 3 the reason that the prisoner has no assets and no means by which to pay the initial partial 4 filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 5 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 6 solely on a “failure to pay . . . due to the lack of funds available to him when payment is 7 ordered.”). However, the balance of the $350 total fee owed in this case must be collected 8 by the agency having custody of the prisoner and forwarded to the Clerk of the Court 9 pursuant to 28 U.S.C. § 1915(b)(2). 10 II. SCREENING PURUSANT TO 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b) 11 A. Standard of Review 12 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a 13 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 14 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, 15 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who 16 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 17 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 18 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 19 the targets of frivolous or malicious suits need not bear the expense of responding.’” 20 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 21 “The standard for determining whether a plaintiff has failed to state a claim upon 22 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 23 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 24 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 25 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 26 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 27 12(b)(6)”). Rule 12(b)(6) requires that a complaint “contain sufficient factual matter, 28 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) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 3 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 4 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 5 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 6 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 7 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 8 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 9 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 10 B. Plaintiff’s Factual Allegations 11 While his allegations are not altogether clear, Plaintiff claims Defendant Baird made 12 “all false statements slandering [his] name” which purportedly led to his arrest. (Compl. 13 at 2.) It appears there was an interaction between Plaintiff and Baird which led to Plaintiff 14 being “sentenced to 4 years” in prison for “corporal injury to a spouse/roommate.” (Id. at 15 3.) Plaintiff claims he “never put hands on [Baird] and her whole police report is made 16 up.” (Id.) 17 Plaintiff was arrested on May 7, 2019 “where cops came and wouldn’t let [him] 18 know why.” (Id. at 5.) Plaintiff was taken to the “Oceanside Police Department where a 19 female officer did a report and after the report” took him to the Vista Detention Facility 20 (“VDF”). (Id.) It appears that Plaintiff was, at some point on May 7, 2019, transported to 21 Defendant Tri City Medical Center but then sent back to VDF even though, he claims, his 22 “life was on the line and they didn’t care.” (Id.) 23 Plaintiff claims Tri City Medical Center “never help[ed]” to reduce his “blood 24 pressure and if it was [reduced] it wasn’t by much.” (Id. at 6.) Plaintiff claims that 25 unnamed officials at Tri City Medical Center let officers “take [him] away with severe 26 blood pressure that wasn’t reduced much and put [his] life in the hands” of the Oceanside 27 Police Department. (Id.) Plaintiff seeks $500,000 in compensatory damages, $10,000,000 28 in punitive damages, and $100,000 from Nori Baird. (Id. at 8.) 1 C. DISCUSSION 2 “Section 1983 creates a private right of action against individuals who, acting under 3 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 4 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 5 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 6 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations 7 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a 8 right secured by the Constitution and laws of the United States, and (2) that the deprivation 9 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 10 698 F.3d 1128, 1138 (9th Cir. 2012). 11 As explained below, Plaintiff has failed to plead that Defendants fall within the 12 statutory scope of § 1983. As such, Plaintiff’s claims do not sufficiently state claims for 13 relief. 14 1. Tri City Medical Center and Nori Baird 15 As an initial matter, the Court finds Plaintiff’s Complaint fails to state a claim as to 16 Defendants Tri City Medical Center or Nori Baird because it does not allege that Tri City 17 Medical Center or Baird is an agency, department, or entity of the state, is employed by 18 the state, or acted on behalf of the state. See Amistad Christiana Church v. Life is Beautiful, 19 LLC, 132 F. Supp.3d 1246, 1251 (D. Nev. 2015), aff’d, 692 F. App’x 922 (9th Cir. 2017) 20 (“A § 1983 claim can be brought only against a state actor.”). Private parties who are not 21 affiliated with a state or municipal government generally do not act under color of law. 22 Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011). Plaintiff 23 has also failed to allege the existence of a “‘close nexus between the State and the 24 challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State 25 itself.’” Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 955 (9th Cir. 2008) (en 26 banc) (quoting Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 27 295 (2001)). Thus, Plaintiff’s claims against these Defendants fail. 28 1 2. Oceanside Police Department 2 In addition, the Court finds that to the extent Plaintiff names the Oceanside Police 3 Department as a Defendant, his claims must be dismissed sua sponte pursuant to both 28 4 U.S.C. § 1915(e)(2) and § 1915A(b) for failing to state a claim upon which § 1983 relief 5 can be granted. 6 Local law enforcement departments, municipal agencies, or subdivisions of that 7 department or agency, are not proper defendants under § 1983. See Vance v. County of 8 Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (“Naming a municipal department as 9 a defendant is not an appropriate means of pleading a § 1983 action against a 10 municipality.”) (citation omitted); Powell v. Cook County Jail, 814 F. Supp. 757, 758 (N.D. 11 Ill. 1993) (“Section 1983 imposes liability on any ‘person’ who violates someone’s 12 constitutional rights ‘under color of law.’ Cook County Jail is not a ‘person.’”). 13 While the City of Oceanside itself may be considered a “person” and therefore, a 14 proper defendant under § 1983, see Monell v. Department of Social Services, 436 U.S. 658, 15 691 (1978), Plaintiff has not named the City as a Defendant. Moreover, as a municipality, 16 the City may be held liable under § 1983—but only where the Plaintiff alleges facts to 17 show that a constitutional deprivation was caused by the implementation or execution of 18 “a policy statement, ordinance, regulation, or decision officially adopted and promulgated” 19 by the City, or a “final decision maker” for the City. Id. at 690; Board of the County 20 Comm’rs v. Brown, 520 U.S. 397, 402-04 (1997); Navarro v. Block, 72 F.3d 712, 714 (9th 21 Cir. 1995). In other words, “respondeat superior and vicarious liability are not cognizable 22 theories of recovery against a municipality.” Miranda v. Clark County, Nevada, 279 F.3d 23 1102, 1109-10 (9th Cir. 2002). “Instead, a Monell claim exists only where the alleged 24 constitutional deprivation was inflicted in ‘execution of a government’s policy or custom.’” 25 Id. (quoting Monell, 436 U.S. at 694). 26 As currently pleaded, Plaintiff’s Complaint fails to state a claim under 28 U.S.C. §§ 27 1915(e)(2) and 1915A(b) because he has failed to allege any facts which “might plausibly 28 suggest” that the City itself violated his constitutional rights. See Hernandez v. County of 1 Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (applying Iqbal’s pleading standards to Monell 2 claims); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (42 U.S.C. § 1983 provides 3 for relief only against those who, through their personal involvement as evidenced by 4 affirmative acts, participation in another’s affirmative acts, or failure to perform legally 5 required duties, cause the deprivation of plaintiff’s constitutionally protected rights). 6 D. Leave to Amend 7 Accordingly, the Court finds Plaintiff’s Complaint fails to state a plausible claim 8 against any named Defendant and therefore is subject to sua sponte dismissal in its entirety 9 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126- 10 27; Rhodes, 621 F.3d at 1004. 11 Because he is proceeding pro se, however, the Court will also grant Plaintiff an 12 opportunity to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“‘[B]efore 13 dismissing a pro se complaint the district court must provide the litigant with notice of the 14 deficiencies in his complaint in order to ensure that the litigant uses the opportunity to 15 amend effectively.’”) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 16 III. CONCLUSION AND ORDER 17 For the reasons explained, the Court: 18 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 19 (ECF No. 2); 20 2. DIRECTS the Secretary of the CDCR, or his designee, to garnish the $350 21 filing fee owed in this case by collecting monthly payments from his account in an amount 22 equal to twenty percent (20%) of the preceding month’s income and forwarding them to 23 the Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28 24 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE 25 NAME AND NUMBER ASSIGNED TO THIS ACTION; 26 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, 27 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 28 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 1 ||relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b); and 2 5. GRANTS him forty-five (45) days leave from the date of this Order in which 3 ||to file an Amended Complaint which cures all the deficiencies of pleading noted. 4 || Plaintiff's Amended Complaint must be complete by itself without reference to his original 5 ||pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 6 || will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 7 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 8 || supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 9 || (noting that claims dismissed with leave to amend which are not re-alleged in an amended 10 || pleading may be “considered waived if not repled.”). 11 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 12 || will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state 13 |}a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 14 || 1915A(b), and his failure to prosecute in compliance with a court order requiring 15 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 16 ||not take advantage of the opportunity to fix his complaint, a district court may convert the 17 || dismissal of the complaint into dismissal of the entire action.’’). 18 The Clerk of Court is directed to mail Plaintiff a court approved civil rights 19 ||complaint form. 20 IT IS SO ORDERED. 21 / / □ 22 || DATED: October 24, 2019 ( itl A (Liphan 6 23 United States District Judge 24 25 26 27 28 8