Kinser v. County of San Diego

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 MICHELLE KINSER, Case No.: 3:19-cv-02416 GPC (MSB)

Inmate Booking No. 197926107,

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ORDER:

Plaintiff,

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vs. 1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS

15 [ECF No. 2]

COUNTY OF SAN DIEGO; WILLIAM

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GORE; DEPUTY V. MARTINEZ; SGT. 2) DISMISSING DEFENDANTS

17 G. WARD; CAPT. J. MADSEN, COUNTY OF SAN DIEGO,

18 Defendants. WILLIAM GORE, SERGEANT

WARD, AND CAPTAIN MADSEN

19 FOR FAILING TO STATE A CLAIM

PURSUANT TO 28 U.S.C. § 1915(e)(2)

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& 28 U.S.C. § 1915A(b)

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Michele Kinser (“Plaintiff”), an inmate currently housed at Las Colinas Detention

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and Reentry Facility (“LCDRF”) located in Santee, California, and proceeding pro se, has

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filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1).

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Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when

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she filed her Complaint; instead, she filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).

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1 / / /

2 I. Motion to Proceed IFP

3 All parties instituting any civil action, suit or proceeding in a district court of the

4 United States, except an application for writ of habeas corpus, must pay a filing fee of

5 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

6 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

7 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However,

8 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in

9 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629

10 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of

11 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v.

12 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

13 Section 1915(a)(2) also 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, 398 F.3d 1113, 1119 (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 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(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 28 U.S.C. § 1915(b)(2);

24 Bruce, 136 S. Ct. at 629.

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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.

June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed

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1 In support of her IFP Motion, Plaintiff has submitted a copy of her Prison

2 Certificate completed by an accounting officer at LCDRF. See ECF No. 2 at 5; 28 U.S.C.

3 § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These statements show

4 Plaintiff has carried an average monthly balance of $0.11, and had $80.83 in average

5 monthly deposits to her account over the 6-month period immediately preceding the

6 filing of her Complaint—but she had only a $.64 available balance on the books at the

7 time of filing. (See ECF No. 2 at 5.)

8 Based on this accounting, the Court GRANTS Plaintiff’s Motion to Proceed IFP

9 (ECF No. 2) and assesses an initial partial filing fee of $16.17 pursuant to 28 U.S.C.

10 § 1915(b)(1). However, this initial fee need be collected only if sufficient funds are

11 available in Plaintiff’s account at the time this Order is executed. See 28 U.S.C.

12 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a

13 civil action or appealing a civil action or criminal judgment for the reason that the

14 prisoner has no assets and no means by which to pay the initial partial filing fee.”);

15 Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4)

16 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a

17 “failure to pay ... due to the lack of funds available to him when payment is ordered.”).

18 The remaining balance of the $350 total fee owed in this case must be collected by the

19 agency having custody of the prisoner and forwarded to the Clerk of the Court pursuant

20 to 28 U.S.C. § 1915(b)(2).

21 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

22 A. Standard of Review

23 Because Plaintiff is a prisoner2 and is proceeding IFP, her Complaint also requires

24 a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

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27 2 While Plaintiff is currently housed in a local facility, she states that she was criminally sentenced on

July 22, 2019 and thus, is serving a post-conviction sentence and is not a pre-trial detainee. (See Compl.

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1 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

2 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

3 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

4 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

5 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

6 the targets of frivolous or malicious suits need not bear the expense of responding.’”

7 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).

8 “The standard for determining whether a plaintiff has failed to state a claim upon

9 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

10 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

11 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

12 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

13 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

14 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

15 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

16 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

18 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

19 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

20 relief [is] ... a context-specific task that requires the reviewing court to draw on its

21 judicial experience and common sense.” Id. The “mere possibility of misconduct” or

22 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

23 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

24 (9th Cir. 2009).

25 B. Factual Allegations

26 Plaintiff has been housed at the Las Colinas Detention Facility since she was

27 arrested on April 25, 2019. (See Compl. at 7.) Plaintiff was sentenced to a prison term

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1 on July 22, 2019 and is serving her sentence in local custody rather than a state prison.

2 (See id.)

3 Initially, Plaintiff was housed in a “lower security level housing dorm.” (Id.)

4 Plaintiff has no disciplinary “write ups” and participates in “codependency groups, poetic

5 justice class,” and was “asked to facilitate a self-help class to help inmates make more

6 positive decisions when they are released.” (Id.)

7 Plaintiff also assisted her cellmate with legal paperwork. (See id.) Specifically,

8 Plaintiff’s cellmate had legal mail returned by the Los Angeles Superior Court due to the

9 fact that she had forms filled out with pencil rather than pen. (See id.) On November 28,

10 2019, Plaintiff’s cellmate asked Defendant Martinez if she could use a “pen under

11 supervision.” (Id. at 7-8.) Martinez “said no” and informed Plaintiff that she could not

12 assist her cellmate by filling out a proof of service for her legal filings. (Id. at 8.)

13 Later that evening, Plaintiff and her cellmate spoke to Martinez’s supervisor and

14 “explained the situation and concerns.” (Id.) The “Lieutenant said he would take care of

15 it and proceeded to talk to Defendant Martinez.” (Id.) “Immediately after the Lieutenant

16 left, Martinez called out Plaintiff’s cellmate and asked her “why we stopped her

17 [Lieutenant] over something ‘so stupid’.” (Id.)

18 At seven in the evening, Defendant Martinez “conducted the weekly unit

19 inspection” and “began with Plaintiff’s cell” where she “spent 20-30 minutes tearing up

20 the cell.” (Id.) She also “pat searched” Plaintiff before returning her to her cell. (Id.)

21 Plaintiff “realized [Martinez] had not searched any other cell” nor did she “pat search any

22 other inmates.” (Id.)

23 Later that evening, “Martinez took a plastic bag to Plaintiff’s cell and told her to

24 pack her things or she would pack them for her.” (Id.) Plaintiff asked “numerous times

25 why she was being moved” but Martinez would not respond. (Id. at 9.)

26 Plaintiff was moved to a “high-security, disciplinary unit where she is not allowed

27 to walk to the dining hall to meals, nor is she allowed to have contact visits.” (Id.)

28 Martinez “later wrote an inmate status report attempting to justify moving Plaintiff to a

1 higher level unit by stating that Plaintiff’s ‘sophistication’ gave her influence over other

2 inmates and created tension between inmates and staff.” (Id.)

3 Plaintiff filed a “formal grievance” which was submitted to Sergeant Ward. (Id.)

4 Plaintiff alleges Ward “conducted no further inquiry nor did she interview other staff.”

5 (Id.) Ward responded to Plaintiff’s grievance that “because Plaintiff did not receive a

6 disciplinary write-up, the move was not considered disciplinary in nature.” (Id.)

7 Plaintiff filed her grievance at the next level of review which was submitted to

8 Captain Madsen. (Id. at 10.) Madsen “merely reiterated [Sergeant] Ward’s response and

9 against stated the move of Plaintiff to a disciplinary unit was not a disciplinary action nor

10 did he find Defendant Martinez’s conducting retaliatory.” (Id.)

11 C. 42 U.S.C. § 1983

12 “Section 1983 creates a private right of action against individuals who, acting

13 under color of state law, violate federal constitutional or statutory rights.” Devereaux v.

14 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of

15 substantive rights, but merely provides a method for vindicating federal rights elsewhere

16 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks

17 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)

18 deprivation of a right secured by the Constitution and laws of the United States, and (2)

19 that the deprivation was committed by a person acting under color of state law.” Tsao v.

20 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

21 D. Grievance Processing Claim – Defendants Ward and Madsen

22 As an initial matter, the Court finds Plaintiff’s Complaint fails to state a claim as to

23 Defendants Ward and Madsen because an official’s allegedly improper processing of a

24 prisoner’s grievances or appeals, without more, does not serve as a sufficient basis for

25 section 1983 liability. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (prisoners do

26 not have a “separate constitutional entitlement to a specific prison grievance procedure.”)

27 (citation omitted); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (due process not

28 violated simply because defendant fails properly to process grievances submitted for

1 consideration); see also Todd v. California Department of Corrections and

2 Rehabilitation, 615 Fed. Appx. 415, 415 (9th Cir. 2015) (district court properly dismissed

3 claim based on improper “processing and handling of […] prison grievances,” since

4 prisoners have no “constitutional entitlement to a specific prison grievance procedure”)

5 (citing Ramirez, 334 F.3d at 860) (quotation marks omitted); Shallowhorn v. Molina, 572

6 Fed. Appx. 545, 547 (9th Cir. 2014) (district court properly dismissed § 1983 claims

7 against defendants who “were only involved in the appeals process”) (citing Ramirez,

8 334 F.3d at 860); Daniels v. Aguilera, No. 2:16-CV-00996-JAM-CKD P, 2018 WL

9 558658, at *1 (E.D. Cal. Jan. 24, 2018), report and recommendation adopted sub nom.

10 Daniels v. Aguillera, No. 2:16-CV-00996-JAM-CKD P, 2018 WL 1763311 (E.D. Cal.

11 Apr. 12, 2018) (“Because there is no right to any particular grievance process, it is

12 impossible for due process to have been violated by ignoring or failing to properly

13 process prison grievances.”). Simply “‘[r]uling against a prisoner on an administrative

14 complaint does not cause or contribute to the violation.’” Ellington v. Clark, 2010 WL

15 3001427, at *2 (E.D. Cal. Jul. 29, 2010) (quoting George v. Smith, 507 F.3d 605, 609

16 (7th Cir. 2007)).

17 Therefore, the claims arising from the administrative grievance procedure and the

18 way in which Plaintiff’s grievances were responded to as to Defendants Ward and

19 Madsen are dismissed for failing to state a claim upon which relief may be granted.. See

20 28 U.S.C. §§ 1915(e)(2)(b)(ii), 1915A(b)(1); Watison, 668 F.3d at 1112; Wilhelm, 680

21 F.3d at 1121.

22 E. Monell claims

23 Plaintiff also asserts a claim against the County of San Diego itself, however, her

24 allegations are insufficient. While Plaintiff claims that the “municipality had a policy”

25 but she fails to identify the nature of this policy or any specific factual description of this

26 purported policy. (Compl. at 10.) A municipal entity may be held liable under § 1983

27 only if she alleges facts sufficient to plausibly show that he was deprived of a

28 constitutional right by individually identified employees who acted pursuant to the

1 municipality’s policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S.

2 274, 280 (1977); Monell v. Dep’t of Social Servs, 436 U.S. 658, 691 (1978); Villegas v.

3 Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). The County of San

4 Diego may not be held vicariously liable under § 1983 simply because one of its

5 employees is alleged to have acted wrongfully. See Board of Cty. Comm’rs. v. Brown,

6 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691 (“[A] a municipality cannot be held

7 liable solely because it employs a tortfeasor.”); Jackson v. Barnes, 749 F.3d 755, 762 (9th

8 Cir. 2014). Instead, the municipality may be held liable “when execution of a

9 government’s policy or custom ... inflicts [a constitutional] injury.” Monell, 436 U.S. at

10 694; Los Angeles Cty., Cal. v. Humphries, 562 U.S. 29, 36 (2010).

11 Therefore, the claims against the County of San Diego are dismissed for failing to

12 state a claim upon which relief may be granted.. See 28 U.S.C. §§ 1915(e)(2)(b)(ii),

13 1915A(b)(1); Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121.

14 F. Sheriff Gore -- Individual Liability

15 While William Gore, the San Diego County Sheriff is a “person” subject to suit

16 under § 1983, there are no specific factual allegations as to this Defendant in the body of

17 the Complaint itself. Plaintiff only identifies her as the “”Sheriff of the Dep’t which

18 employs the named Defendants.” (Compl. at 2.)

19 These types of broad and conclusory allegations fail to plausibly show how, or to

20 what extent, Gore may be held individually liable for any constitutional injury. See Iqbal,

21 556 U.S. at 676-77; Jones v. Comm’ty Redev. Agency of City of Los Angeles, 733 F.2d

22 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least some degree of

23 particularity overt acts which defendants engaged in” in order to state a claim). As

24 pleaded, Plaintiff plainly seeks to hold Gore liable for the acts of unidentified

25 subordinates. But “vicarious liability is inapplicable to … § 1983 suits.” Iqbal, 556 U.S.

26 at 676. Instead, “Plaintiff must plead that each Government-official defendant, through

27 [his] own individual actions, has violated the Constitution” in order to plead a plausible

28 claim for relief. Id.; see also Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013)

1 (supervisor may be held liable under §1983 only if there is “a sufficient causal connection

2 between the supervisor’s wrongful conduct and the constitutional violation”) (citations

3 and internal quotation marks omitted); Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir.

4 1979) (when a named defendant holds a supervisorial position, the causal link between

5 the defendant and the claimed constitutional violation must be specifically alleged).

6 E. Retaliation Claims – Martinez

7 As to Plaintiff’s retaliation allegations involving Deputy V. Martinez, however, the

8 Court finds her Complaint contains plausible claims sufficient to survive the “low

9 threshold” set for sua sponte screening as required by 28 U.S.C. §§ 1915(e)(2) and

10 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; Rhodes v. Robinson,

11 408 F.3d 559, 567-68 (9th Cir. 2005) (“Within the prison context, a viable claim of First

12 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took

13 some adverse action against an inmate (2) because of (3) that prisoner’s protected

14 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment

15 rights, and (5) the action did not reasonably advance a legitimate correctional goal.”).

16 G. Leave to Amend

17 Because the Court has determined that Plaintiff’s First Amendment retaliation

18 claim survives the sua sponte screening process, the Court will give Plaintiff the

19 opportunity to either: (1) notify the Court of the intent to proceed solely with her First

20 Amendment retaliation claim against Defendant Martinez; or (2) file an amended

21 pleading correcting all the deficiencies of pleading identified by the Court in this Order as

22 to the remaining Defendants. Plaintiff must choose one of these options within forty-five

23 (45) days from the date this Order is filed. If Plaintiff chooses to proceed as to her

24 retaliation claim against Martinez only, the Court will issue an Order directing the U.S.

25 Marshal to effect service of her Complaint on Martinez and dismiss the remaining claims

26 and defendants.

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1 III. Conclusion and Orders

2 For all the reasons discussed, the Court:

3 1. GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2).

4 2. DIRECTS the Watch Commander for the LCDRF, or their designee, to

5 collect from Plaintiff’s trust account the $16.17 initial filing fee assessed, if those funds

6 are available at the time this Order is executed, and to forward whatever balance remains

7 of the full $350 owed in monthly payments in an amount equal to twenty percent (20%)

8 of the preceding month’s income to the Clerk of the Court each time the amount in

9 Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

10 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

11 THIS ACTION.

12 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch

13 Commander, Las Colinas Detention and Reentry Facility, 451 Riverview Parkway,

14 Santee, California 92071.

15 4. DISMISSES Plaintiff’s claims against Defendant County of San Diego,

16 William Gore, Sergeant Ward, and Captain Madsen sua sponte based on her failure to

17 state a claim against them pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).

18 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in

19 which to either: (1) Notify the Court of the intention to proceed with the retaliation

20 claims against Martinez only; or (2) File an Amended Complaint which cures all the

21 deficiencies of pleading noted. Plaintiff’s Amended Complaint must be complete in itself

22 without reference to her original pleading. Defendants not named and any claims not re-

23 alleged in the Amended Complaint will be considered waived. See S.D. CAL. CIVLR

24 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th

25 Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey, 693 F.3d at 928

26 (noting that claims dismissed with leave to amend which are not re-alleged in an

27 amended pleading may be “considered waived if not repled.”).

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1 6. The Clerk of Court is directed to mail a court approved civil rights complaint

2 || form.

3 IT IS SO ORDERED.

4 ||Dated: February 20, 2020

5 Hon. athe Cae

6 United States District Judge

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