Spatcher v. Baird

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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