Hudson v. San Diego Sheriff's Department

7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA JEFFREY DANIEL HUDSON, Case No.: 3:22-cv-00196-CAB-DEB Booking #21149533, ORDER: Plaintiff, vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS SAN DIEGO SHERIFFS, 14 [ECF No. 5] Defendants.

AND 2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM 18 PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) AND U.S.C. § 1915A(b) 21 Jeffrey Daniel Hudson (“Plaintiff”), while detained at George Bailey Detention Facility (“GBDF”) in San Diego, California, and proceeding pro se, filed a civil rights Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff did not pay the fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 5).

27 / / / / / / I. Motion to Proceed IFP 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); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 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 “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 19 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, 136 S. Ct. at 629.

23 In support of his IFP Motion, Plaintiff has submitted a prison certificate authorized by a GBDF Facility Commander, together with a copy of his Inmate Trust Account In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.

Dec. 1, 2020). The additional $52 administrative fee does not apply to persons granted leave to proceed Activity. See ECF No. 5; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d 2 at 1119. This statement shows that Plaintiff had an average monthly balance of $66.73, and average monthly deposits of $166.67 to his account over the 6-month period immediately preceding the filing of his Complaint, as well as an available balance of $200.18 at the time of filing. Based on this financial information, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 5), and assesses his initial partial filing fee to be $13.35 pursuant to 28 U.S.C. § 1915(b)(1).

8 However, the Court will direct the GBDF Watch Commander, or their designee, to collect this initial fee only if sufficient funds are available in Plaintiff’s account at the time this Order is executed. 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.”). The remaining balance of the $350 total fee owed in this case must be collected and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(1).

18 II. Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A 19 A. Standard of Review 20 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must review and sua sponte dismiss an IFP complaint, and any complaint filed by a prisoner seeking redress from a governmental entity, or officer or employee of a governmental entity, 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) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

3 All complaints must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “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” falls short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

12 “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 15 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 a complaint “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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

23 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff.”). However, while the court “ha[s] an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

4 B. Plaintiff’s Allegations 5 Plaintiff’s factual allegations are sparse. However, he claims he was “beaten, maced, and was bitten” by a police dog “after being placed in handcuffs.” (Compl. at 3.) Plaintiff identifies no specific individuals and instead only names “San Diego Sheriffs” as Defendants. (Id. at 1-2.) Plaintiff also fails to give any specific factual details as to where and when these events took place other than claiming they happened in an “alley behind 13th Street.” (Id. at 1.) He claims he was stopped while on his bicycle by a “man who stepped out” of a black car and “pointed a gun” at him. (Id. at 6-7.) Plaintiff “ran away from the man” and San Diego Sheriffs “were already on scene screaming for [him] to get down.” (Id. at 7.) Plaintiff claims he was “punched” and pepper sprayed by unidentified individuals. (Id. at 8.) Plaintiff was later taken by ambulance to a hospital to have his “eyes flushed out” and his leg wound from the police dog treated. (Id. at 8.)

16 Plaintiff seeks $1,000,000 in compensatory damages and $1,000,000 in punitive damages, along with the request to have “all medical bills paid.” (Id. at 11.)

18 C. Fourth Amendment claims 19 The Fourth Amendment prohibits “unreasonable searches and seizures,” and “reasonableness is always the touchstone of Fourth Amendment analysis.” Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016). Reasonableness is generally assessed by carefully weighing “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Tennessee v. Garner, 471 U.S. 1, 8 (1985) (internal quotation marks omitted); Cty. of Los Angeles, Calif. v. Mendez, 137 S. Ct. 1539, 1546 (2017); Zion v. Cty of Orange, 874 F.3d 1072, 1075 (9th Cir. 2017) (citing Graham v. Connor, 490 U.S. 368, 388 (1989)).

1 First, the Court finds that Plaintiff’s pleading offers no “factual content that allows the court to draw the reasonable inference” that any individual person acted unlawfully under the circumstances. See Iqbal, 556 U.S. at 678 (noting that while Plaintiff need not plead “detailed factual allegations,” in order to state a plausible claim for relief, he must provide “more than … unadorned, the-defendant-unlawfully-harmed-me accusations.”)

6 (citation omitted); see also Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009) (discussing “integral participant” doctrine in context of Fourth Amendment excessive force claims); Blankenhorn v. City of Orange, 485 F.3d 463, 481 n. 12 (9th Cir. 2007). While some of Plaintiff’s claims are serious, his factual allegations, or lack thereof, are too vague for the Court to find that he stated a claim against any specific individual.

11 Second, in order to state a Fourth Amendment claim of excessive force under 42 12 U.S.C. § 1983, Plaintiff must allege facts to plausibly show that each person acting “under color of state law” violated his Fourth Amendment rights by using force which was excessive given: “(1) the severity of the crime at issue, (2) [consideration of] whether the [plaintiff] pose[d] an immediate threat to the safety of the officers or others, ... (3) whether he [was] actively resisting arrest or attempting to evade arrest by flight,” and any other “exigent circumstances [that] existed at the time of the arrest.” Chew v. Gates, 27 F.3d 18 1432, 1440-41 & n.5 (9th Cir. 1994) (citing Graham, 490 U.S. at 396); see also Brosseau v. Haugen, 543 U.S. 194, 197 (2004). Here, the Court finds that Plaintiff’s Complaint lacks sufficient specific factual allegations to support any elements of a Fourth Amendment claim. Moreover, Plaintiff would need to make some effort to identify those whom he claims were responsible for the alleged Fourth Amendment violations. Plaintiff does not give any sort of factual allegation as to when these events allegedly took place. Plaintiff also admits to running away from the individual who told him to “get down” and informed Plaintiff that he had a warrant for his arrest.

26 While the Court will give Plaintiff leave to file an amended pleading, he must make some effort to identify the individuals purportedly responsible for the constitutional violations he alleges in his Complaint. He must also provide more specific factual allegations with regard to the events that he raises in his Complaint.

2 D. Leave to Amend 3 In light of Plaintiff’s pro se status, the Court grants him leave to amend to attempt to sufficiently allege a claim if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.’”), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

9 III. Conclusion and Orders 10 For the reasons explained, the Court: 11 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 5).

13 2. DIRECTS the Watch Commander of the GBDF, or their designee, to collect from Plaintiff’s inmate trust account the $350 filing fee owed in this case by garnishing monthly payments in an amount equal to twenty percent (20%) of the preceding month’s income and forwarding those payments 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.

20 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch Commander, George Bailey Detention Facility, 446 Alta Road, Suite 5300, San Diego, California 92158-0002.

23 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 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.

28 Defendants not named and any claim not re-alleged in his Amended Complaint will be 1 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.”).

6 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 Plaintiffs failure to state 8 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 11 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.”).

13 5. The Clerk of Court is directed to mail Plaintiff a court approved civil rights || complaint form for his use in amending.

15 IT IS SO ORDERED.

16 || Dated: May 3, 2022 € Hon. Cathy Ann Bencivengo 18 United States District Judge 8 oe Co