Gilliam v. County of San Diego

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 MARVIN D. GILLIAM, Case No.: 3:19-cv-02486-CAB-BLM

Booking #19751724,

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ORDER:

Plaintiff,

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vs. 1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS

COUNTY OF SAN DIEGO; WILLIAM

15 [ECF No. 3]

D. GORE; CAPTAIN BUCHANAN,

16 Defendants. AND

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2) DISMISSING COMPLAINT FOR

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FAILING TO STATE A CLAIM

19 PURSUANT TO

28 U.S.C. § 1915(e)(2)(B) AND

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28 U.S.C. § 1915A(b)

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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 28 U.S.C. § 1914(a) when he filed his

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

28 to 28 U.S.C. § 1915(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 28 U.S.C. § 1914(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, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

7 Cook, 169 F.3d 1176, 1177 (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. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d

10 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed.

11 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (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, 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.

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

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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; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. 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 28 U.S.C. § 1915(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 28 U.S.C. § 1915(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, 136 S. Ct. at 630; Taylor, 281 F.3d

12 at 850 (finding that 28 U.S.C. § 1915(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, 136 S. Ct. at 629, 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 28 U.S.C. § 1914 and to forward all payments to the Clerk of the Court

20 pursuant to the installment provisions set forth in 28 U.S.C. § 1915(b)(1).

21 II. Screening pursuant to 28 U.S.C. § 1915(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 28 U.S.C. § 1915(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, 203 F.3d 1122,

1 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v.

2 Robinson, 621 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, 762 F.3d 903, 920 n.1 (9th Cir.

5 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (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, 556 U.S. 662, 678 (2009)

11 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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.” Id. The “mere

14 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

15 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (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

19 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (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, 556 U.S. at 678

24 (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (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, 627 F.3d 338, 342 & n.7 (9th Cir.

5 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 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, 673 F.2d 266, 268 (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., 551 U.S. 308, 322 (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, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).

14 B. 42 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, 263 F.3d 1070, 1074 (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, 490 U.S. 386, 393-94 (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., 698 F.3d 1128, 1138 (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, 556 U.S. at 676;

4 see also Jones v. Community Redevelopment Agency of City of Los Angeles, 733 F.2d

5 646, 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, 197 F.3d 1245, 1248 (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, 844 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode,

12 423 U.S. 362, 370-71 (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, 545 U.S. 209, 221 (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, 882 F.2d 1398, 1405 (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, 451 U.S. 527,

2 535-44 (1981) (state employee negligently lost prisoner’s hobby kit), overruled in part on

3 other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Hudson v. Palmer, 468

4 U.S. 517, 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, 494 U.S.

7 113, 128 (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, 782 F.2d 825, 826 (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, 31 F.3d 813, 816-17 (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, 474 U.S. at 328 (“[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.”); id. at 330 (“‘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, 451 U.S. at 545

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, 424 U.S. 693, 701 (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. 28 U.S.C. § 1915(e)(2);

28 Lopez, 203 F.3d at 1126-27.

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

6 U.S. 274, 280 (1977); Monell, 436 U.S. at 691; Villegas v. Gilroy Garlic Festival Ass’n,

7 541 F.3d 950, 964 (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, 520 U.S. 397, 403 (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, 749 F.3d 755, 762 (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

14 U.S. 29, 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, 550 U.S. at 555, which rise above the mere conceivability or

19 possibility of unlawful conduct. Iqbal, 556 U.S. at 678-79. 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, 203 F.3d at 1126-27; Rhodes, 621 F.3d

27 at 1004.

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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, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v.

4 Bonzelet, 963 F.2d 1258, 1261 (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 28 U.S.C. § 1915(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 28 U.S.C. § 1915(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 28 U.S.C. § 1915(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., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading

27 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (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 € □

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Hon. Cathy Ann Bencivengo

7 United States District Judge

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