Wilson v. Unknown Oceanside Police Officers

• Court: District Court, S.D. California
• Decided: April 24, 2023
• Docket: 3:23-cv-00270
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TEDDY LeROY WILSON, Jr., Case No.: 23-CV-270 TWR (DDL) Inmate #23700343, 12 ORDER (1) GRANTING Plaintiff, 13 SUPPLEMENTAL MOTION TO vs. PROCEED IN FORMA PAUPERIS; 14 (2) DENYING AS MOOT ORIGINAL UNKNOWN Oceanside Police Officers; 15 MOTION TO PROCEED IN FORMA UNKNOWN Tri City Hospital Staff; PAUPERIS; (3) SCREENING 16 UNKNOWN Oceanside Fire Department COMPLAINT PURSUANT TO 28 Staff; UNKNOWN Oceanside Trainers 17 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b); and Supervisors, AND (4) DIRECTING PLAINTIFF 18 Defendants. TO PROVIDE WRITTEN NOTICE 19 IDENTIFYING DOE DEFENDANTS FOR SERVICE OF PROCESS 20

21 (ECF Nos. 1–3) 22 23 On February 7, 2023, Plaintiff Teddy LeRoy Wilson Jr., who is a prisoner 24 proceeding pro se, filed this this civil rights action pursuant to 42 U.S.C. § 1983. (See 25 generally ECF No. 1 (“Compl.”).) Wilson has also filed a Motion to Proceed to Proceed 26 In Forma Pauperis (“IFP”) (“Original IFP Mot.,” ECF No. 2) and a Supplemental Motion 27 to Proceed IFP (“Supp. IFP Mot.,” ECF No. 3). 28 / / / 1 MOTIONS TO PROCEED IN FORMA PAUPERIS 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 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if she 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). A prisoner who is granted leave to proceed 8 IFP, however, remains obligated to pay the entire fee in “increments” or “installments,” 9 Bruce v. Samuels, 577 U.S. 82, 85 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th 10 Cir. 2015), regardless of whether his action is ultimately dismissed. See 28 U.S.C. 11 §§ 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 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly balance 18 in the account for the past six months, whichever is greater, unless the prisoner has no 19 assets. See 28 U.S.C. §§ 1915(b)(1), (4). The institution having custody of the prisoner 20 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 21 any month in which his account exceeds $10, and forwards those payments to the Court 22 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 85. 23 Plaintiff did not submit a certified a copy of his trust account statement or a prison 24 certificate with his Original IFP Motion, but he did provide those documents in support of 25

26 1 In civil actions except for applications for a writ of habeas corpus, civil litigants bringing suit must pay 27 the $350 statutory fee in addition to a $52 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The $52 28 1 his Supplemental IFP Motion pursuant to 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3.2. 2 See Andrews, 398 F.3d at 1119. Those documents show Plaintiff has an available balance 3 of $.98. (See Supp. IFP Mot. at 4–5.) The Court therefore GRANTS Plaintiff’s 4 Supplemental IFP Motion (ECF No. 3); DENIES AS MOOT Plaintiff’s Original IFP 5 (ECF No. 2); DECLINES to exact the initial filing fee because Plaintiff’s trust account 6 statement indicates he may have “no means to pay it,” Bruce, 577 U.S. at 85; and 7 DIRECTS the Secretary of the California Department of Corrections and Rehabilitation 8 (“CDCR”), or his designee, to instead collect the entire $350 balance of the filing fees 9 required by 28 U.S.C. § 1914 pursuant to the installment payment provisions set forth in 10 28 U.S.C. § 1915(b)(1) and forward them to the Clerk of the Court. See 28 U.S.C. § 11 1915(b)(4) (“In no event shall a prisoner be prohibited from bringing a civil action or 12 appealing a civil action or criminal judgment for the reason that the prisoner has no assets 13 and no means by which to pay the initial partial filing fee.”); Bruce, 577 U.S. at 85; Taylor, 14 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 15 dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of 16 funds available to him when payment is ordered”). 17 SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b) 18 Because Plaintiff is a prisoner, his Complaint requires a pre-answer screening 19 pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these statutes, the Court 20 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, that is frivolous, 21 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 22 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 23 § 1915(e)(2)); see also Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 24 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 25 targets of frivolous or malicious suits need not bear the expense of responding.’” 26 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 27 / / / 28 / / / 1 I. Legal Standard 2 “The standard for determining whether a plaintiff has failed to state a claim upon 3 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 4 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 5 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 6 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 7 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 8 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 9 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 10 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 11 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 12 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 13 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 14 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 15 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 16 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 17 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 18 “Section 1983 creates a private right of action against individuals who, acting under 19 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 20 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 21 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 22 Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quotation marks and citations 23 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a 24 right secured by the Constitution and laws of the United States, and (2) that the deprivation 25 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 26 698 F.3d 1128, 1138 (9th Cir. 2012). 27 / / / 28 / / / 1 II. Plaintiff’s Allegations 2 In early January of 2023, Plaintiff was hiding in the back stall of the women’s 3 bathroom at the Oceanside transit station because he was “fearing for [his] life and safety 4 from unknown individuals after me for being a [California Penal Code section] 290” sex 5 offender registrant.2 (See Compl. at 5.) Police arrived at the transit station bathroom, 6 identified themselves as police officers, and may have told Plaintiff to come out of the 7 bathroom. (See id.) Plaintiff told them he would be out in ten minutes. (See id.) 8 The officers then unlocked and opened the bathroom stall door and rushed at 9 Plaintiff. (See id. at 6.) Plaintiff “raised [his] hands to shield his face,” but the officers 10 “beat him to the ground” by striking him in the face, head, and shoulders. (See id.) His 11 head began ringing and blood began dripping from the left side of his face. (See id.) While 12 Plaintiff was on the ground, an officer kneed him in the ribs at least three times, causing 13 him “enormous pain.” (See id.) The officers then cuffed Plaintiff. (See id.) When Plaintiff 14 asked the officers to loosen the cuffs because they were so tight they were causing him 15 pain, the officers said “no.” (See id. at 6–7.) The officers then placed a “spit sock” over 16 his head and a wrap around his legs. (See id. at 8.) As a result of this incident, Plaintiff 17 was ultimately charged with resisting arrest. (See id.) 18 After his arrest, Plaintiff was “slammed” onto a gurney and taken to Tri City 19 Hospital. (See id.) At the hospital, unknown individuals rolled Plaintiff onto his left side, 20 where his ribs were injured, and then onto his back with his cuffed hands underneath him 21 several times. (See id.) Both of these actions caused him extreme pain. (See id.) Plaintiff 22 continues to suffer pain from his encounter with police, including a “left wrist that pops 23 and clicks,” “pain and numbness in [his] left shoulder,” “excruciating pain in [his] right 24 knee,” “pain in [his] ribs . . . [that makes it] difficult to breathe,” and “dizzy spells [and] 25 light headedness.” (See id. at 12, 18.) 26

27 2 California Penal Code section 290 requires persons convicted of specified offenses to register with law 28 1 III. Analysis 2 “All claims that law enforcement officers have used excessive force—deadly or 3 otherwise—in the course of an arrest must be analyzed under the Fourth Amendment and 4 its “reasonableness” standard.” Smith v. City of Hemet, 394 F.3d 689, 700 (9th Cir. 2005) 5 (citing Graham v. Connor, 490 U.S. 386, 395 (1989)); see also Ward v. City of San Jose, 6 967 F.2d 280, 284 (9th Cir. 1992), as amended. “Reasonableness” is determined by an 7 objective standard. See Graham, 490 U.S. at 397. To determine whether a use of force was 8 objectively reasonable, a court must balance the “nature and quality of the intrusion” on a 9 person’s liberty with the “countervailing governmental interests at stake.” See id. at 396. 10 “The question is not simply whether the force was necessary to accomplish a legitimate 11 police objective; it is whether the force used was reasonable in light of all the relevant 12 circumstances.” Hammer v. Gross, 932 F.2d 842, 846 (9th Cir. 1991) (emphasis in 13 original). 14 The Court FINDS Plaintiff’s Complaint states a plausible cause of action for 15 excessive force against Defendants that is sufficient to survive the “low threshold” for 16 proceeding past the sua sponte screening required under §§ 1915(e)(2) and 1915A(b). See 17 Wilhelm, 680 F.3d at 1123; Wall v. Cnty. of Orange, 364 F.3d 1107, 1112 (9th Cir. 2004) 18 (finding excessively tight handcuffing which caused permanent nerve damage violated the 19 Fourth Amendment); Lopez v. Clous, No. C 13-3870 CRB (PR), 2014 WL 4131839, at *4 20 (N.D. Cal. Aug. 21, 2014) (concluding a reasonable jury could find defendants used 21 excessive force when they kicked and punched plaintiff while he was handcuffed and on 22 the ground); Thompson v. Thatcher, No. 1:11-cv-01198-LJO-JLT, 2012 WL 6054802, at 23 *3 (E.D. Cal. Dec. 5, 2012) (finding plaintiff’s complaint survived screening where he 24 alleged officers hit him in the face numerous times, put a knee in plaintiff’s ribs, and hit 25 plaintiff in the temple, forehead, face, and neck before he was handcuffed). 26 Nonetheless, the Court does not find service appropriate for Defendants at this time 27 because the U.S. Marshals Service (“USMS”) cannot serve an “unknown” defendant. The 28 Court will, however, give Plaintiff an opportunity to identify the defendants. See Gillespie 1 v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (“As a general rule, the use of ‘John Doe’ to 2 identify a defendant is not favored. . . . However, . . . where the identity of alleged 3 defendants will not be known prior to the filing of a complaint[,] . . . the plaintiff should 4 be given an opportunity . . . to identify the unknown defendants, unless it is clear that 5 discovery would not uncover the identities[.]”). Before the Court can order the USMS to 6 serve Defendants, Plaintiff will be required to provide enough information to locate the 7 Defendants for service of process. Once Plaintiff identifies Defendants for service, he 8 should file a motion to substitute the identities of Unknown Oceanside Police Officers, 9 Unknown Tri City Hospital Staff, Unknown Oceanside Fire Department Staff, and 10 Unknown Oceanside Trainers and Supervisors and where they may be located. Even if 11 Plaintiff is unable to ascertain the Unknown Defendants’ complete names and/or a location 12 where they can be found, he should nonetheless endeavor to include in his motion enough 13 identifying information to allow for service of process. If the Court grants the motion to 14 substitute, the Court will then direct the USMS to serve the Defendants identified by 15 Plaintiff. If Plaintiff fails timely to provide enough information sufficiently to identify the 16 Unknown Defendants, however, the Court will dismiss this action without prejudice. See 17 Fed. R. Civ. P. 4(m). 18 CONCLUSION 19 Good cause appearing, the Court: 20 1) GRANTS Plaintiff’s Supplemental IFP Motion (ECF No. 3); 21 2) DENIES AS MOOT Plaintiff’s Original IFP (ECF No. 2); 22 3) DECLINES to exact the initial filing fee; 23 4) DIRECTS the Secretary of the CDCR or his designee to collect the entire 24 $350 balance of the filing fees required by 28 U.S.C. § 1914 pursuant to the installment 25 payment provisions set forth in 28 U.S.C. § 1915(b)(1) and forward them to the Clerk of 26 the Court; 27 5) FINDS Plaintiff’s Complaint satisfies the “low threshold” for proceeding past 28 the sua sponte screening required under § 1915(e)(2) and § 1915A(b); 1 6) ORDERS Plaintiff, within ninety (90) days of the date this Order is signed, 2 ||to EITHER (1) file a motion to amend his Complaint to substitute Unknown Oceanside 3 || Police Officers, Unknown Tri City Hospital Staff, Unknown Oceanside Fire Department 4 || Staff, and Unknown Oceanside Trainers and Supervisors with either their names or, if full 5 ||names cannot be obtained, enough identifying information about Unknown Oceanside 6 || Police Officers, Unknown Tri City Hospital Staff, Unknown Oceanside Fire Department 7 || Staff} and Unknown Oceanside Trainers and Supervisors to allow the USMS to execute 8 service of process on them; OR (2) file a notice containing a summary of all efforts, even 9 they were ultimately futile, Plaintiff made to obtain information on the identities of 10 Defendants if sufficient identifying information cannot be obtained during the allotted 11 time; and 12 7) NOTIFIES Plaintiff that the failure to comply with this Order will result in 13 || dismissal of this action, without prejudice, for failure timely to effect service of process 14 || pursuant to Federal Rule of Civil Procedure 4(m). 15 IT IS SO ORDERED. 16 || Dated: April 24, 2023 — 17 [ od) (2 re 18 Honorable Todd W. Robinson United States District Judge 19 20 21 22 23 24 25 26 27 28