Turner v. County of San Diego

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID BRYAN TURNER, Jr., Case No.: 3:19-cv-1982 GPC (RBM) Booking No. 197347785, 12 ORDER: Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS

15 [ECF No. 2], COUNTY OF SAN DIEGO; SAN 16 DIEGO HARBOR POLICE, Police AND 17 Officer John Doe; SHERIFF DEP.’T, San Diego Sheriff John Doe; 2) DISMISSING COMPLAINT 18 METROPOLITAN TRANSIT PURSUANT 19 SYSTEMS, Trolley Police Officer Jane TO 28 U.S.C. § 1915(e)(2) AND Doe, § 1915A(b). 20 Defendants. 21 22 23 David Bryan Turner, Jr., (“Plaintiff”), incarcerated at the George Bailey Detention 24 Facility (“GBDF”) located in San Diego, California, has filed a civil rights action 25 (“Compl.”) pursuant to 42 U.S.C. § 1983. In addition, Plaintiff has filed a Motion to 26 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 27 / / / 28 / / / 1 I. Motion to Proceed IFP 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 $400.2 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); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 8 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 9 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 10 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 11 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16

17 1 A court “may take notice of proceedings in other courts, both within and without the 18 federal judicial system, if those proceedings have a direct relation to the matters at issue.” 19 Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). Here, the Court takes judicial notice that 20 Plaintiff has been previously barred from proceeding IFP pursuant to 28 U.S.C. 21 § 1915(g). See Turner v. United State of America, et al., S.D. Cal. Civil Case No. 3:19- cv-01305-JAH-MDD (Aug. 27, 2019) (Order denying motion to proceed IFP on the 22 ground that Plaintiff has filed at least five (5) civil actions that were dismissed on the 23 grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted.”) (hereafter Turner I). However, because Plaintiff makes vague 24 allegations that he is currently in “imminent danger,” an exception to the § 1915(g) bar, 25 the Court will permit Plaintiff to proceed IFP in this matter.

26 2 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 trust account statement, the Court assesses an initial payment of 20% of (a) the average 2 monthly deposits in the account for the past six months, or (b) the average monthly 3 balance in the account for the past six months, whichever is greater, unless the prisoner 4 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 5 custody of the prisoner then collects subsequent payments, assessed at 20% of the 6 preceding month’s income, in any month in which his account exceeds $10, and forwards 7 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 8 Bruce, 136 S. Ct. at 629. 9 In support of his request to proceed IFP, Plaintiff has submitted a copy of his 10 GBDF Inmate Statement Report. See ECF No. 2; 28 U.S.C. § 1915(a)(2); S.D. Cal. 11 CivLR 3.2; Andrews, 398 F.3d at 1119. This document shows that Plaintiff had an 12 available balance of zero at the time of filing. See ECF No. 2 at 4. Based on this 13 accounting, the Court GRANTS Plaintiff’s request to proceed IFP, and will assess no 14 initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). See 28 U.S.C. § 1915(b)(4) 15 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action 16 or appealing a civil action or criminal judgment for the reason that the prisoner has no 17 assets and no means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 18 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 19 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to 20 the lack of funds available to him when payment is ordered.”). The Court will further 21 direct the Watch Commander of GBDF, or their designee, to instead collect the entire 22 $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the 23 Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 24 § 1915(b)(1). See id. 25 / / / 26 / / / 27 / / / 28 / / / 1 II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A 2 A. Standard of Review 3 Because Plaintiff 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 5 statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of 6 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 7 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 8 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 9 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 10 the 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 15 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 16 Cir. 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 24 relief [is] ... a context-specific task that requires the reviewing court to draw on its 25 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 26 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 27 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 28 (9th Cir. 2009). 1 B. Plaintiff’s Factual Allegations 2 Plaintiff’s Complaint contains very few specific factual allegations and the few 3 allegations that are made are disjointed and difficult to discern. On September 18, 2019, 4 Plaintiff alleges that he was in “wanton pain caused by being place[d] in imminent danger 5 at the court date.” (Compl. at 3.) Plaintiff apparently made a request to be seen “by the 6 doctor for the injuries” but he was “never seen.” (Id.) It appears that Plaintiff is claiming 7 to have injuries to his “nerves, hand, face, back, and head” as well as suffering from 8 “P.T.S.D.” (Id.) Plaintiff alleges that these injuries were “caused by wanton conduct by 9 San Diego Sheriff Departments.” (Id.) Plaintiff claims that the County of San Diego has 10 policies that resulted in “harm to [Plaintiff]” including a “broken hand, head trauma, neck 11 pain, and great P.T.S.D.” (Id.) 12 On July 21, 2019, Plaintiff allegedly forced to take off his clothing in order for the 13 San Diego Sheriff Deputies to conduct a “visual cavity search.” (Id. at 9.) Plaintiff 14 claims during this search, “other inmates were present and [Plaintiff] did not have a 15 curtain between him and another inmate.” (Id.) Plaintiff alleges he was searched “for no 16 reason” in violation of “California privacy rights” according to the “policy adopted by the 17 County of San Diego.” (Id.) Plaintiff further claims he is in “imminent danger of serious 18 physical injury because of the policy of the use of force by handcuffs in the San Diego 19 County Jails.” (Id.) 20 On October 13, 2018, Plaintiff claims he was “returning from the hospital with a 21 broken hand on the trolley.” (Id. at 12.) Plaintiff was “stopped by the [Metropolitan 22 Transit System (“MTS”)] trolley police.” (Id.) Plaintiff alleges Defendant Jane Doe 23 “wrote [Plaintiff] a ticket” because he “could not find his trolley pass.” (Id.) Defendant 24 Jane Doe “called the San Diego County Sheriff Department.” (Id.) San Diego County 25 Sheriff Deputies “John Does and Jane Does” arrived and “placed overly tight handcuffs” 26 onto Plaintiff. (Id.) Plaintiff alleges that the San Diego County Sheriff Deputies “starting 27 twisting” Plaintiff and “slammed [Plaintiff] face first on the pavement.” (Id.) 28 / / / 1 On October 22, 2018, Plaintiff alleges that he was “arrest[ed] by John Doe Harbor 2 Police Officer” and taken to San Diego County of Mental Health facility. (Id.) Plaintiff 3 was given a “shot” and “woke up nude at the Central Jail in great pain with no doctor’s 4 care.” (Id.) 5 Plaintiff seeks injunctive relief, $21,000,000 in compensatory damages, 6 $21,000,000 in punitive damages, and “release from County Jail.” (Id. at 18.) 7 C. Duplicative Claims 8 As an initial matter, the Court notes that Plaintiff is raising claims duplicative of a 9 previous action he has filed. As noted above, Plaintiff previously filed a civil rights 10 action in which he raised the identical claims against the actions that arose in October of 11 2018 against the MTS, the Harbor Police Department, and the San Diego County 12 Sheriff’s Department. See Turner I, ECF No. 1 at 3-5. A prisoner’s complaint is 13 considered frivolous if it “merely repeats pending or previously litigated claims.” Cato v. 14 United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. 15 § 1915(d)) (citations and internal quotations omitted). While Plaintiff was denied the 16 ability to proceed IFP in Turner I due to his having accumulated multiple “strikes” 17 pursuant to 28 U.S.C. § 1915(g), he cannot simply re-allege these allegations in another 18 matter in which he was given IFP status.3 Even though Plaintiff was denied IFP status in 19 Turner I, he had the ability to pursue those claims by paying the $400 civil and 20 administrative filing fees required by 28 U.S.C. § 1914(a). He chose not to pay those 21 fees and thus, the Court finds that he cannot proceed with those claims in this action. 22 / / / 23 / / / 24

25 26 3 In addition, in Turner I, United States District Judge John Houston took judicial notice of the Court’s own docket and found that “Turner has filed more than two dozen similar cases over the course of the 27 last ten years, most of them alleging excessive force and the denial of medical care, and seeking monetary relief from the City and County of San Diego, County Sheriff’s Department officials, and the 28 1 Therefore, because Plaintiff already filed an action with identical claims presented 2 in the instant action, the Court must dismiss the duplicative claims brought in this action 3 pursuant to 28 U.S.C. § 1915(e) (2) & 1915A(b). See Cato, 70 F.3d at 1105 n.2; Resnick, 4 213 F.3d at 446. 5 D. San Diego Sheriff’s Department 6 Plaintiff claims that he has been “denied the right to medical care/freedom from 7 cruel and unusual punishment.” (Compl. at 3.) Plaintiff claims that he has suffered 8 injuries “by San Diego Sheriff Departments” manifesting extreme indifference to the 9 injury to [Plaintiff].” (Id.) Plaintiff contends that the actions are due to “policies adopted 10 by County of San Diego.” (Id.) 11 To the extent Plaintiff names the San Diego Sheriff’s Department, see Compl. at 1, 12 he fails to state a claim upon which § 1983 relief may be granted. See 28 U.S.C. 13 § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). 14 Departments of municipal entities are not “persons” subject to suit under § 1983; 15 therefore, local law enforcement departments (like the San Diego Sheriff’s Department) 16 are not proper parties. See Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. 17 Cal. 1996) (“Naming a municipal department as a defendant is not an appropriate means 18 of pleading a § 1983 action against a municipality.”) (citation omitted); Powell v. Cook 19 County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes liability on 20 any ‘person’ who violates someone’s constitutional rights ‘under color of law.’ Cook 21 County Jail is not a ‘person.’”). 22 “Persons” under § 1983 are state and local officials sued in their individual 23 capacities, private individuals and entities which act under color of state law, and/or the 24 local governmental entity itself. Vance, 928 F. Supp. at 995-96. The San Diego Sheriff’s 25 Department is a department of the County of San Diego—but is not a “person” subject to 26 suit under § 1983. See e.g., United States v. Kama, 394 F.3d 1236, 1239 (9th Cir. 2005) 27 (“[M]unicipal police departments and bureaus are generally not considered ‘persons’ 28 within the meaning of section 1983.”) 1 E. Monell Liability 2 However, the County of San Diego itself may be considered a “person” and 3 therefore, a proper defendant under § 1983, see Monell v. Department of Social Services, 4 436 U.S. 658, 691 (1978); Hammond v. County of Madera, 859 F.2d 797, 801 (9th Cir. 5 1988). As a municipality, the County may be held liable under § 1983–but only where 6 the Plaintiff alleges facts to show that a constitutional deprivation was caused by the 7 implementation or execution of “a policy statement, ordinance, regulation, or decision 8 officially adopted and promulgated” by the County, or a “final decision maker” for the 9 County. Monell, 436 U.S. at 690; Board of the County Commissioners v. Brown, 520 U.S. 10 397, 402-04 (1997); Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995). In other words, 11 “respondeat superior and vicarious liability are not cognizable theories of recovery 12 against a municipality.” Miranda v. Clark County, Nevada, 279 F.3d 1102, 1109-10 (9th 13 Cir. 2002). “Instead, a Monell claim exists only where the alleged constitutional 14 deprivation was inflicted in ‘execution of a government’s policy or custom.’” Id. (quoting 15 Monell, 436 U.S. at 694). 16 As currently pleaded, Plaintiff’s fails to state a claim against the County of San 17 Diego because he has failed to allege any facts which “might plausibly suggest” that the 18 County itself violated his constitutional rights. See Hernandez v. County of Tulare, 666 19 F.3d 631, 637 (9th Cir. 2012) (applying Iqbal’s pleading standards to Monell claims); 20 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (42 U.S.C. § 1983 provides for relief 21 only against those who, through their personal involvement as evidenced by affirmative 22 acts, participation in another’s affirmative acts, or failure to perform legally required 23 duties, cause the deprivation of plaintiff’s constitutionally protected rights). 24 F. Medical Care Claims 25 “[C]laims for violations of the right to adequate medical care ‘brought by pretrial 26 detainees against individual defendants under the Fourteenth Amendment’ must be 27 evaluated under an objective deliberate indifference standard.” Gordon v. Cty. of 28 Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) (quoting Castro v. County of Los Angeles, 1 833 F.3d 1060, 1070 (9th Cir. 2016)). Therefore, “the plaintiff must ‘prove more than 2 negligence but less than subjective intent - something akin to reckless disregard.’” Id. 3 Plaintiff must allege facts sufficient to show that: 4 (i) [each] defendant made an intentional decision with respect to the conditions under which [he] was confined; (ii) those conditions put [him] at 5 substantial risk of suffering serious harm; (iii) [each] defendant did not take 6 reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk 7 involved—making the consequences of the defendant’s conduct obvious; and 8 (iv) by not taking such measures, [each] defendant caused [his] injuries. 9 Gordon, 888 F.3d at 1125. 10 Here, Plaintiff’s Complaint is devoid of any specific allegation regarding his 11 requests for medical care. Moreover, he does not even attempt to identify a specific 12 individual whom he claims denied him medical care. 13 G. State Law Claims 14 Plaintiff also seeks to bring California state law claims against the named 15 Defendants. (See Compl. at 9.) However, because Plaintiff has failed to allege a 16 violation of federal law, the Court exercises its discretion to dismiss his pendent state law 17 claims without prejudice. 28 U.S.C. § 1367(c)(3) (“The district court may decline to 18 exercise supplemental jurisdiction over a claim under subsection (a) if– [it] has dismissed 19 all claims over which it has original jurisdiction.”); United Mine Workers of America v. 20 Gibbs, 383 U.S. 715, 726 (1966) (“if the federal claims are dismissed before trial, ... the 21 state claims should be dismissed as well.”); Acri v. Varian Assoc., Inc., 114 F.3d 999, 22 1000 (9th Cir. 1997) (“[O]nce judicial power exists under § 1367(a), retention of 23 supplemental jurisdiction over state law claims under 1367(c) is discretionary.”). 24 H. Leave to Amend 25 Thus, for all these reasons, the Court finds Plaintiff’s Complaint fails to state any 26 § 1983 claim upon which relief can be granted and contains claims that are frivolous. 27 Therefore, it must be dismissed sua sponte and in its entirety pursuant to 28 U.S.C. 28 § 1915(e)(2)(B) and § 1915A(b). 1 Because Plaintiff is proceeding pro se, however, the Court having now provided 2 him with “notice of the deficiencies in his complaint,” will also grant him an opportunity 3 to fix them. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. 4 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). However, Plaintiff may not re-allege the 5 claims the Court found to be duplicative of a previous action he filed. 6 III. Conclusion and Order 7 Good cause appearing, IT IS HEREBY ORDERED that: 8 1. Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 9 2) is GRANTED. 10 2. The Watch Commander of the GBDF, or their designee, shall collect from 11 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly 12 payments from the account in an amount equal to twenty percent (20%) of the preceding 13 month’s income and forward payments to the Clerk of the Court each time the amount in 14 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 15 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 16 TO THIS ACTION. 17 3. The Clerk of the Court is directed to serve a copy of this Order on Watch 18 Commander, George Bailey Detention Facility, 446 Alta Road, Suite 5300, San Diego, 19 California 92158. 20 IT IS FURTHER ORDERED that: 21 4. The Court DISMISSES Plaintiff’s Complaint for failing to state a claim and 22 as frivolous pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). 23 5. The Court GRANTS Plaintiff thirty (30) days leave from the date of this 24 Order in which to file an Amended Complaint which cures all the deficiencies of 25 pleading noted. Plaintiff’s Amended Complaint must be complete in itself without 26 reference to his original pleading. Defendants not named and any claims not re-alleged in 27 the Amended Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; Hal 28 Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 1 || “[A]n amended pleading supersedes the original.”’); Lacey, 693 F.3d at 928 (noting that 2 ||claims dismissed with leave to amend which are not re-alleged in an amended pleading 3 || may be “considered waived if not repled.”). 4 6. The Court DIRECTS the Clerk of the Court to provide Plaintiff with a 5 || blank copy of its form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for 6 || Plaintiffs use in amending. 7 IT IS SO ORDERED. 8 9 || Dated: October 31, 2019

1] United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Il