“Tf a plaintiff 20 || does not take advantage of the opportunity to fix his complaint, a district court may 21 convert the dismissal of the complaint into dismissal of the entire action.”
How later courts described this case
- “Tf a plaintiff 20 || does not take advantage of the opportunity to fix his complaint, a district court may 21 convert the dismissal of the complaint into dismissal of the entire action.”
- noting that screening pursuant to § 1915A “incorporates the familiar standard 20 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 21 12(b)(6)”
- where state cannot foresee, and therefore provide meaningful hearing 15 prior to the deprivation, a statutory provision for post-deprivation hearing or a state 16 common law tort remedy for erroneous deprivation satisfies due process
- upholding Rule 8(a) dismissal of 20 complaint that was “argumentative, prolix, replete with redundancy, and largely 21 irrelevant”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 MIQUEL ANGEL LIRA, Case No.: 3:19-cv-01801-MMA-AHG
Booking #19737821,
12
ORDER GRANTING MOTION TO
Plaintiff,
13 PROCEED IN FORMA PAUPERIS;
vs.
14
[Doc. No. 2]
CODY HORN; BRIAN OLSON;
15
UNKNOWN LAW ENFORCEMENT;
DISMISSING COMPLAINT FOR
16 HANE SADAF,
FAILING TO STATE A CLAIM
17 Defendants. PURSUANT TO 28 U.S.C. §
1915(e)(2)(B) AND 28 U.S.C. §
18
1915A(b)
19
20 Plaintiff Miguel Angel Lira, while incarcerated at the San Diego County Sheriff
21 Department’s George Bailey Detention Facility (“GBDF”) in San Diego, California, and
22 proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. See
23 Compl., Doc. No. 1. Plaintiff did not pay the fee required by 28 U.S.C. § 1914(a) when
24 he filed his Complaint; instead he has filed a Motion to Proceed In Forma Pauperis
25 (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2).
26 I. Motion to Proceed IFP
27 All parties instituting any civil action, suit or proceeding in a district court of the
28 United States, except an application for writ of habeas corpus, must pay a filing fee of
1 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to
5 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
6 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d
7 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed.
8 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.
9 2002).
10 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a
11 “certified copy of the trust fund account statement (or institutional equivalent) for ... the
12 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
13 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
14 trust account statement, the Court assesses an initial payment of 20% of (a) the average
15 monthly deposits in the account for the past six months, or (b) the average monthly
16 balance in the account for the past six months, whichever is greater, unless the prisoner
17 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution
18 having custody of the prisoner then collects subsequent payments, assessed at 20% of the
19 preceding month’s income, in any month in which his account exceeds $10, and forwards
20 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. §
21 1915(b)(2); Bruce, 136 S. Ct. at 629.
22 In support of his IFP Motion, Plaintiff has submitted a copy of his San Diego
23 County Sheriff’s Department Inmate Trust Account Activity statement. See Doc. No. 2
24 at 6; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. This
25
26
1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See
27 28 U.S.C. § 1914(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 statement shows that while Plaintiff had an approximate average monthly deposit of
2 $3.66 to his account, and carried an approximate average monthly balance of $7.16 over
3 the past six months, he had only a $1.05 available balance to his credit at the time of
4 filing. See Doc. No. 2 at 6.
5 Based on this accounting, the Court assesses no initial partial filing fee pursuant to
6 28 U.S.C. § 1915(a)(1) and (b)(1), as Plaintiff has insufficient funds with which to pay an
7 initial fee at the time this Order issues. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n
8 no event shall a prisoner be prohibited from bringing a civil action or appealing a civil
9 action or criminal judgment for the reason that the prisoner has no assets and no means
10 by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d
11 at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal
12 of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds
13 available to him when payment is ordered.”).
14 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP, declines to exact
15 an initial filing fee because his trust account statements suggest he may have “no means
16 to pay it,” Bruce, 136 S. Ct. at 629, and instead directs the Watch Commander at GBDF,
17 or his designee, to collect the entire $350 balance of the filing fee required by 28 U.S.C. §
18 1914 and to forward all payments to the Clerk of the Court pursuant to the installment
19 provisions set forth in 28 U.S.C. § 1915(b)(1).
20 II. Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A
21 A. Standard of Review
22 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-
23 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
24 statutes, the Court must review and sua sponte dismiss an IFP complaint, and any
25 complaint filed by a prisoner seeking redress from a governmental entity, or officer or
26 employee of a governmental entity, which is frivolous, malicious, fails to state a claim, or
27 seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122,
28 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v.
1 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The
2 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need
3 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th
4 Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.
5 2012)).
6 All complaints must contain “a short and plain statement of the claim showing that
7 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
8 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
9 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
10 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining
11 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that
12 requires the reviewing court to draw on its judicial experience and common sense.” Id.
13 The “mere possibility of misconduct” falls short of meeting this plausibility standard.
14 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
15 “The standard for determining whether a plaintiff has failed to state a claim upon
16 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
17 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668
18 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
19 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
20 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
21 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter,
22 accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at
23 678 (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
24 “When there are well-pleaded factual allegations, a court should assume their
25 veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
26 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
27 (“[W]hen determining whether a complaint states a claim, a court must accept as true all
28 allegations of material fact and must construe those facts in the light most favorable to
1 the plaintiff.”). However, while the court “ha[s] an obligation where the petitioner is pro
2 se, particularly in civil rights cases, to construe the pleadings liberally and to afford the
3 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
4 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not
5 “supply essential elements of claims that were not initially pled.” Ivey v. Board of
6 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
7 Finally, the “[c]ourt[] must consider the complaint in its entirety,” including
8 “documents incorporated into the complaint by reference” to be part of the pleading when
9 determining whether the plaintiff has stated a claim upon which relief may be granted.
10 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Fed. R. Civ. P.
11 10(c) (“A copy of a written instrument that is an exhibit to a pleading for all purposes.”);
12 Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
13 B. Plaintiff’s Allegations and Federal Rule of Civil Procedure 8
14 As an initial matter, the Court finds that Plaintiff’s Complaint lacks any specific,
15 coherent factual allegations. Federal Rule of Civil Procedure 8 provides that in order to
16 state a claim for relief in a pleading it must contain “a short and plain statement of the
17 grounds for the court’s jurisdiction” and “a short and plain statement of the claim
18 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(1) & (2); see McHenry
19 v. Renne, 84 F.3d 1172, 1178–80 (9th Cir. 1996) (upholding Rule 8(a) dismissal of
20 complaint that was “argumentative, prolix, replete with redundancy, and largely
21 irrelevant”); Cafasso, United States ex rel. v. General Dynamics C4 Systems, Inc., 637
22 F.3d 1047, 1059 (9th Cir. 2011) (citing cases upholding Rule 8 dismissals where
23 pleadings were “verbose,” “confusing,” “distracting, ambiguous, and unintelligible,”
24 “highly repetitious,” and comprised of “incomprehensible rambling,” while noting that
25 “[o]ur district courts are busy enough without having to penetrate a tome approaching the
26 magnitude of War and Peace to discern a plaintiff’s claims and allegations.”).
27 C. 42 U.S.C. § 1983
28 “Section 1983 creates a private right of action against individuals who, acting
1 under color of state law, violate federal constitutional or statutory rights.” Devereaux v.
2 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of
3 substantive rights, but merely provides a method for vindicating federal rights elsewhere
4 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks
5 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)
6 deprivation of a right secured by the Constitution and laws of the United States, and (2)
7 that the deprivation was committed by a person acting under color of state law.” Tsao v.
8 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
9 C. Heck Bar
10 It appears, although not entirely clear, that Plaintiff is alleging that his
11 constitutional rights were violated during his arrest, as well as during his criminal trial. It
12 is not clear if Plaintiff’s criminal proceedings are pending or if he has been convicted of a
13 criminal violation. Regardless, in Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme
14 Court concluded that a § 1983 claim which “necessarily implies the invalidity” of an
15 underlying criminal judgment is not cognizable until the criminal judgment has been
16 reversed, set aside, expunged, invalidated, or called into question on federal habeas
17 review. Id. at 486-87. Here, Plaintiff’s against Defendants could be barred by Heck to
18 the extent they may “necessarily imply the invalidity” of his criminal judgment or if he
19 should ultimately be convicted for the crimes for which he may be awaiting trial.
20 However, Heck only comes into play when there exists “‘a conviction or sentence
21 that has not been ... invalidated,’ that is to say, an ‘outstanding criminal judgment.’”
22 Wallace v. Kato, 549 U.S. 384, 393 (2007) (quoting Heck, 512 U.S. at 486-87). In
23 Wallace, the Supreme Court specifically rejected the contention that “an action which
24 would impugn an anticipated future conviction cannot be brought until that conviction
25 occurs and is set aside.” Id. at 393 (italics in original).
26 D. Property claim
27 Plaintiff also appears to allege that his “due process” rights were violated during
28 his arrest when Defendants “embezzled” his property. Compl. at 5. “The Fourteenth
1 Amendment’s Due Process Clause protects persons against deprivations of life, liberty, or
2 property; and those who seek to invoke its procedural protection must establish that one
3 of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
4 Ordinarily, due process of law requires notice and an opportunity for some kind of
5 hearing prior to the deprivation of a significant property interest. Sinaloa Lake Owners
6 Ass’n v. City of Simi Valley, 882 F.2d 1398, 1405 (9th Cir. 1989). Neither the negligent
7 nor intentional deprivation of property states a due process claim under section 1983 if
8 the deprivation was random and unauthorized, however. Parratt v. Taylor, 451 U.S. 527,
9 535-44 (1981) (state employee negligently lost prisoner’s hobby kit), overruled in part on
10 other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Hudson v. Palmer, 468
11 U.S. 517, 533 (1984) (intentional destruction of inmate’s property). The availability of
12 an adequate state post-deprivation remedy, e.g. a state tort action, precludes relief
13 because it provides sufficient procedural due process. See Zinermon v. Burch, 494 U.S.
14 113, 128 (1990) (where state cannot foresee, and therefore provide meaningful hearing
15 prior to the deprivation, a statutory provision for post-deprivation hearing or a state
16 common law tort remedy for erroneous deprivation satisfies due process); King v.
17 Massarweh, 782 F.2d 825, 826 (9th Cir. 1986) (same). The Ninth Circuit has long
18 recognized that California law provides such an adequate post-deprivation remedy.
19 Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing CAL. GOV’T CODE §§ 810-
20 895).
21 Deprivations of property resulting from negligence, or “mere lack of due care” do
22 not deny due process at all, and must be redressed through a state court damages action.
23 See Daniels, 474 U.S. at 328 (“[T]he Due Process Clause is simply not implicated by a
24 negligent act of an official causing unintended loss of or injury to life, liberty, or
25 property.”); id. at 330 (“‘To hold that this kind of loss is a deprivation of property within
26 the meaning of the Fourteenth Amendment seems not only to trivialize, but grossly to
27 distort the meaning and intent of the Constitution.’” (quoting Parratt, 451 U.S. at 545
28 (Stewart, J., concurring)). In fact, the Supreme Court has explicitly warned against
1 turning the Fourteenth Amendment and § 1983 into a “font of tort law to be
2 superimposed upon whatever systems may already be administered by the States.” See
3 Paul v. Davis, 424 U.S. 693, 701 (1976).
4 Thus, because Plaintiff claims Defendants deprived him of personal property, any
5 remedy he may have lies in state court and his federal action must be dismissed for
6 failing to state a claim upon which § 1983 relief may be granted. 28 U.S.C. § 1915(e)(2);
7 Lopez, 203 F.3d at 1126-27.
8 E. Public Defender
9 In his Complaint, Plaintiff names the Public Defender assigned to represent him in
10 his criminal proceedings as a Defendant. However, a “public defender does not act under
11 color of state law when performing a lawyer’s traditional functions as counsel to a
12 defendant in a criminal proceeding.” Polk County v. Dodson, 454 U.S. 312, 325 (1981);
13 Miranda v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir. 2003) (“[The public
14 defender] was, no doubt, paid by government funds and hired by a government agency.
15 Nevertheless, [her] function was to represent [her] client, not the interests of the state or
16 county.”); Garnier v. Clarke, 332 Fed. App’x 416 (9th Cir. 2009) (affirming district
17 court’s sua sponte dismissal of prisoner’s § 1983 claims against appointed counsel).
18 III. Conclusion and Orders
19 For the reasons explained, the Court:
20 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
21 (Doc. No. 2).
22 2. DIRECTS the Watch Commander of GBDF, or his designee, to collect from
23 Plaintiff’s inmate trust account the $350 filing fee owed in this case by garnishing
24 monthly payments in an amount equal to twenty percent (20%) of the preceding month’s
25 income and forwarding those payments to the Clerk of the Court each time the amount in
26 the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST
27 BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS
28 ACTION.
1 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch
2 || Commander, George Bailey Detention Facility, 446 Alta Road, San Diego, California,
3 92158.
4 4. DISMISSES Plaintiff's Complaint for failing to state a claim upon which
5 ||relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and
6 || GRANTS him thirty (30) days leave from the date of this Order in which to file an
7 || Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’ □
8 || Amended Complaint must be complete by itself without reference to his original
9 || pleading. Defendants not named and any claim not re-alleged in his Amended Complaint
10 || will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard
11 || Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading
12 || supersedes the original.”’); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)
13 || (noting that claims dismissed with leave to amend which are not re-alleged in an
14 ||amended pleading may be “considered waived if not repled.”).
15 If Plaintiff fails to file an Amended Complaint within the time provided, the Court
16 |} will enter a final Order dismissing this civil action based both on Plaintiff’s failure to
17 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
18 1915A(b), and his failure to prosecute in compliance with a court order requiring
19 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“Tf a plaintiff
20 || does not take advantage of the opportunity to fix his complaint, a district court may
21 convert the dismissal of the complaint into dismissal of the entire action.”).
22 IT IS SO ORDERED.
23 || DATE: December 2, 2019 Ll bathe VTu- : hill
HON. MICHAEL M. ANELLO
United States District Judge
25
26
27
28
9