1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARVIN D. GILLIAM, Case No.: 3:19-cv-02486-CAB-BLM Booking #19751724, 12 ORDER: Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS COUNTY OF SAN DIEGO; WILLIAM 15 [ECF No. 3] D. GORE; CAPTAIN BUCHANAN,

16 Defendants. AND 17 2) DISMISSING COMPLAINT FOR 18 FAILING TO STATE A CLAIM 19 PURSUANT TO

(e)(2)(B) AND 20 28 U.S.C. § 1915A(b) 21 22 Marvin D. Gilliam (“Plaintiff”), while incarcerated at the San Diego County 23 Sheriff Department’s George Bailey Detention Facility (“GBDF”) in San Diego, 24 California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. 25 § 1983. (See Compl., ECF No. 1.) 26 Plaintiff did not pay the fee required by

(a) when he filed his 27 Complaint; instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 28 to

(a) (ECF No. 3). 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 $400.1 See

(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,

(9th Cir. 2007); Rodriguez v. 7 Cook,

(9th Cir. 1999). However, a prisoner who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 9 Bruce v. Samuels, __ U.S. __,

(2016); Williams v. Paramo,

(9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 11 See

(b)(1) & (2); Taylor v. Delatoore,

(9th Cir. 12 2002). 13 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 14 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 15 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 16 § 1915(a)(2); Andrews v. King,

(9th Cir. 2005). From the certified 17 trust account statement, the Court assesses an initial payment of 20% of (a) the average 18 monthly deposits in the account for the past six months, or (b) the average monthly 19 balance in the account for the past six months, whichever is greater, unless the prisoner 20 has no assets. See

(b)(1);

(b)(4). The institution having 21 custody of the prisoner then collects subsequent payments, assessed at 20% of the 22 preceding month’s income, in any month in which his account exceeds $10, and forwards 23 those payments to the Court until the entire filing fee is paid. See

(b)(2); 24 Bruce,

. 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27

(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed 28 1 In support of his IFP Motion, Plaintiff has submitted a copy of his San Diego 2 County Sheriff’s Department Inmate Trust Account Activity statement. See ECF No. 3 at 3 4;

(a)(2); S.D. CAL. CIVLR 3.2; Andrews,

. This 4 statement shows that Plaintiff had only a $0.02 available balance to his credit at the time 5 of filing. See ECF No. 3 at 4. 6 Based on this accounting, the Court assesses no initial partial filing fee pursuant to 7

(a)(1) and (b)(1), as Plaintiff has insufficient funds with which to pay an 8 initial fee at the time this Order issues. See

(b)(4) (providing that “[i]n 9 no event shall a prisoner be prohibited from bringing a civil action or appealing a civil 10 action or criminal judgment for the reason that the prisoner has no assets and no means 11 by which to pay the initial partial filing fee.”); Bruce,

; Taylor,

at 850 (finding that

(b)(4) acts as a “safety-valve” preventing dismissal 13 of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds 14 available to him when payment is ordered.”). 15 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 3), 16 declines to exact an initial filing fee because his trust account statements suggest he may 17 have “no means to pay it,” Bruce,

, and instead directs the Watch 18 Commander at GBDF, or his designee, to collect the entire $350 balance of the filing fee 19 required by

and to forward all payments to the Clerk of the Court 20 pursuant to the installment provisions set forth in

(b)(1). 21 II. Screening pursuant to

(e)(2) and § 1915A 22 A. Standard of Review 23 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 24 answer screening pursuant to

(e)(2) and § 1915A(b). Under these 25 statutes, the Court must review and sua sponte dismiss an IFP complaint, and any 26 complaint filed by a prisoner seeking redress from a governmental entity, or officer or 27 employee of a governmental entity, which is frivolous, malicious, fails to state a claim, or 28 seeks damages from defendants who are immune. See Lopez v. Smith,

, 1 1126-27 (9th Cir. 2000) (en banc) (discussing

(e)(2)); Rhodes v.

F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The 3 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need 4 not bear the expense of responding.’” Nordstrom v. Ryan,

, 920 n.1 (9th Cir. 5 2014) (quoting Wheeler v. Wexford Health Sources, Inc.,

(7th Cir. 6 2012)). 7 All complaints must contain “a short and plain statement of the claim showing that 8 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are 9 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 10 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,

(2009) 11 (citing Bell Atlantic Corp. v. Twombly,

(2007)). “Determining whether 12 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 13 the reviewing court to draw on its judicial experience and common sense.”

The “mere 14 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 15 Moss v. U.S. Secret Service,

(9th Cir. 2009). 16 “The standard for determining whether a plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

(9th Cir. 2012); see also Wilhelm v. Rotman,

(9th 20 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 21 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 22 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 23 as true, to state a claim to relief that is plausible on its face.” Iqbal,

24 (internal quotation marks omitted); Wilhelm,

. 25 “When there are well-pleaded factual allegations, a court should assume their 26 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 27 Iqbal,

; see also Resnick v. Hayes,

(9th Cir. 2000) 28 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 1 allegations of material fact and must construe those facts in the light most favorable to 2 the plaintiff.”). However, while the court “ha[s] an obligation where the petitioner is pro 3 se, particularly in civil rights cases, to construe the pleadings liberally and to afford the 4 petitioner the benefit of any doubt,” Hebbe v. Pliler,

, 342 & n.7 (9th Cir. 5 2010) (citing Bretz v. Kelman,

, 1027 n.1 (9th Cir. 1985)), it may not 6 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 7 Regents of the University of Alaska,

(9th Cir. 1982). 8 Finally, the “[c]ourt[] must consider the complaint in its entirety,” including 9 “documents incorporated into the complaint by reference” to be part of the pleading when 10 determining whether the plaintiff has stated a claim upon which relief may be granted. 11 Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

(2007); Fed. R. Civ. P. 12 10(c) (“A copy of a written instrument that is an exhibit to a pleading for all purposes.”); 13 Schneider v. California Dept. of Corrections,

, 1197 n.1 (9th Cir. 1998).

U.S.C. § 1983 15 “Section 1983 creates a private right of action against individuals who, acting 16 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 17 Abbey,

(9th Cir. 2001). Section 1983 “is not itself a source of 18 substantive rights, but merely provides a method for vindicating federal rights elsewhere 19 conferred.” Graham v. Connor,

(1989) (internal quotation marks 20 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 21 deprivation of a right secured by the Constitution and laws of the United States, and (2) 22 that the deprivation was committed by a person acting under color of state law.” Tsao v. 23 Desert Palace, Inc.,

(9th Cir. 2012). 24 C. Individual Causation 25 As an initial matter, Plaintiff’s Complaint fails to contain any specific factual 26 allegations against Defendants Gore or Buchanan whom he claims violated his 27 constitutional rights and contains no “further factual enhancement” which describes how, 28 or to what extent, these individuals became aware of, or were actually aware of, any 1 alleged constitutional violation. “Because vicarious liability is inapplicable to . . . §1983 2 suits, a plaintiff must plead that each government-official defendant, through the 3 official’s own individual actions, has violated the Constitution.” Iqbal,

; 4 see also Jones v. Community Redevelopment Agency of City of Los Angeles,

646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least some degree of 6 particularity overt acts which defendants engaged in” in order to state a claim). 7 “Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks 8 v. United States,

(9th Cir. 1999). “The inquiry into causation must 9 be individualized and focus on the duties and responsibilities of each individual 10 defendant whose acts or omissions are alleged to have caused a constitutional 11 deprivation.” Leer v. Murphy,

(9th Cir. 1988), citing Rizzo v. Goode, 12

(1976). There are no factual allegations linking Defendants Gore 13 or Buchanan to any of his claims regarding alleged constitutional violations. 14 Thus, for these reasons, the Court finds that Plaintiff’s claims against Gore and 15 Buchanan must be dismissed for failing to state a claim upon which relief may be 16 granted. 17 D. Property claim 18 While not entirely clear, it appears that Plaintiff is claiming that when he was 19 transferred to GBDF on September 12, 2019 he lost his personal property. (See Compl. 20 at 1.) Plaintiff claims that is “right to protect property was violated” by the County of 21 San Diego. (Id.) “The Fourteenth Amendment’s Due Process Clause protects persons 22 against deprivations of life, liberty, or property; and those who seek to invoke its 23 procedural protection must establish that one of these interests is at stake.” Wilkinson v. 24 Austin,

(2005). 25 Ordinarily, due process of law requires notice and an opportunity for some kind of 26 hearing prior to the deprivation of a significant property interest. Sinaloa Lake Owners 27 Ass’n v. City of Simi Valley,

(9th Cir. 1989). Neither the negligent 28 nor intentional deprivation of property states a due process claim under section 1983 if 1 the deprivation was random and unauthorized, however. Parratt v. Taylor,

, 2 535-44 (1981) (state employee negligently lost prisoner’s hobby kit), overruled in part on 3 other grounds, Daniels v. Williams,

(1986); Hudson v. Palmer, 468

, 533 (1984) (intentional destruction of inmate’s property). The availability of 5 an adequate state post-deprivation remedy, e.g. a state tort action, precludes relief 6 because it provides sufficient procedural due process. See Zinermon v. Burch,

(1990) (where state cannot foresee, and therefore provide meaningful hearing 8 prior to the deprivation, a statutory provision for post-deprivation hearing or a state 9 common law tort remedy for erroneous deprivation satisfies due process); King v. 10 Massarweh,

(9th Cir. 1986) (same). The Ninth Circuit has long 11 recognized that California law provides such an adequate post-deprivation remedy. 12 Barnett v. Centoni,

(9th Cir. 1994) (citing CAL. GOV’T CODE §§ 810- 13 895). 14 Deprivations of property resulting from negligence, or “mere lack of due care” do 15 not deny due process at all, and must be redressed through a state court damages action. 16 See Daniels,

(“[T]he Due Process Clause is simply not implicated by a 17 negligent act of an official causing unintended loss of or injury to life, liberty, or 18 property.”);

(“‘To hold that this kind of loss is a deprivation of property within 19 the meaning of the Fourteenth Amendment seems not only to trivialize, but grossly to 20 distort the meaning and intent of the Constitution.’” (quoting Parratt,

21 (Stewart, J., concurring)). In fact, the Supreme Court has explicitly warned against 22 turning the Fourteenth Amendment and § 1983 into a “font of tort law to be 23 superimposed upon whatever systems may already be administered by the States.” See 24 Paul v. Davis,

(1976). 25 Thus, because Plaintiff claims Defendants deprived him of personal property, any 26 remedy he may have lies in state court and his federal action must be dismissed for 27 failing to state a claim upon which § 1983 relief may be granted.

(e)(2); 28 Lopez,

. 1 E. County of San Diego 2 To the extent Plaintiff intends to assert a claim against the County of San Diego 3 itself, his allegations are insufficient. A municipal entity is liable under section 1983 only 4 if Plaintiff alleges his constitutional injury was caused by employees acting pursuant to 5 the municipality’s policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429

, 280 (1977); Monell, 436 U.S. at 691; Villegas v. Gilroy Garlic Festival Ass’n, 7

(9th Cir. 2008). The County of San Diego may not be held vicariously 8 liable under section 1983 simply based on allegedly unconstitutional acts of its 9 employees. See Board of Cty. Comm’rs. v. Brown,

(1997); Monell, 436 10 U.S. at 691 (“[A] a municipality cannot be held liable solely because it employs a 11 tortfeasor.”); Jackson v. Barnes,

(9th Cir. 2014). Instead, the 12 municipality may be held liable “when execution of a government’s policy or custom ... 13 inflicts the injury.” Monell, 436 U.S. at 694; Los Angeles Cty., Cal. v. Humphries, 562

, 36 (2010). 15 Plaintiff’s vague allegations that unidentified policies were “adopted” is 16 insufficient to state a claim of municipal liability. Plausibility requires pleading facts, as 17 opposed to conclusory allegations or the “formulaic recitation of the elements of a cause 18 of action,” Twombly,

, which rise above the mere conceivability or 19 possibility of unlawful conduct. Iqbal,

. Therefore, Plaintiff’s claims 20 against the County of San Diego are dismissed for failing to state a claim upon which 21 relief may be granted. 22 F. Leave to Amend 23 Accordingly, the Court finds that Plaintiff’s Complaint, considered together with 24 the exhibits he has attached, fails to state a plausible claim against any named Defendant, 25 and that therefore, it is subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C. 26 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez,

; Rhodes,

at 1004. 28 1 Because he is proceeding pro se, however, the Court having now provided him 2 with “notice of the deficiencies in his complaint,” will also grant Plaintiff an opportunity 3 to amend. See Akhtar v. Mesa,

(9th Cir. 2012) (citing Ferdik v. 4 Bonzelet,

(9th Cir. 1992)). 5 III. Conclusion and Orders 6 For the reasons explained, the Court: 7 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to

(a) 8 (ECF No. 3). 9 2. DIRECTS the Watch Commander of GBDF, or his designee, to collect from 10 Plaintiff’s inmate trust account the $350 filing fee owed in this case by garnishing 11 monthly payments in an amount equal to twenty percent (20%) of the preceding month’s 12 income and forwarding those payments to the Clerk of the Court each time the amount in 13 the account exceeds $10 pursuant to

(b)(2). ALL PAYMENTS MUST 14 BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 15 ACTION. 16 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 17 Commander, George Bailey Detention Facility, 446 Alta Road, San Diego, California, 18 92158. 19 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 20 relief may be granted pursuant to

(e)(2)(B) and § 1915A(b), and 21 GRANTS him thirty (30) days leave from the date of this Order in which to file an 22 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 23 Amended Complaint must be complete by itself without reference to his original 24 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 25 will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 26 Feiner & Co., Inc.,

(9th Cir. 1989) (“[A]n amended pleading 27 supersedes the original.”); Lacey v. Maricopa Cnty.,

(9th Cir. 2012) 28 (noting that claims dismissed with leave to amend which are not re-alleged in an 1 |}amended pleading may be “considered waived if not repled.’’). 2 5. The Clerk of Court is directed to mail Plaintiff a court approved civil rights 3 ||complaint form for his use in amending. 4 IT IS SO ORDERED. 5 || Dated: February 25, 2020 € □ 6 Hon. Cathy Ann Bencivengo 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10