Dunsmore v. State of California

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 DARRYL DUNSMORE, Case No.: 3:20-cv-00406-AJB-WVG

Inmate Booking No. 19777041,

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ORDER: (1) GRANTING MOTION

Plaintiff,

13 TO PROCEED IN FORMA

vs. PAUPERIS [ECF No. 3]; AND (2)

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DISMISSING COMPLAINT FOR

15 FAILING TO STATE A CLAIM

STATE OF CALIFORNIA; SAN DIEGO PURSUANT TO 28 U.S.C. § 1915(e)(2)

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COUNTY; SAN DIEGO SHERIFF’S AND 28 U.S.C. § 1915A(b)

17 DEP’T; DEPARTMENT OF

CORRECTIONS; GORE

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XAVIER BECCERA; ATTORNEY

19 GENERAL,

20 Defendants.

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23 Darryl Dunsmore (“Plaintiff”), currently housed at the San Diego Central Jail

24 located in San Diego, California, and proceeding pro se, has filed a civil rights action

25 pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) In addition, Plaintiff has filed a

26 Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF

27 No. 2.)

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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. See

4 28 U.S.C. § 1914(a). An action may proceed despite the plaintiff’s failure to prepay the

5 entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See

6 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a

7 prisoner and is granted leave to proceed IFP, he nevertheless remains obligated to pay the

8 entire fee in installments, regardless of whether his action is ultimately dismissed. See 28

9 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

10 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act

11 (“PLRA”), a prisoner seeking leave to proceed IFP must also submit a “certified copy of

12 the trust fund account statement (or institutional equivalent) for . . . the six-month period

13 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.

14 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the

15 Court assesses an initial payment of 20% of (a) the average monthly deposits in the

16 account for the past six months, or (b) the average monthly balance in the account for the

17 past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C.

18 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then

19 collects subsequent payments, assessed at 20% of the preceding month’s income, in any

20 month in which the prisoner’s account exceeds $10, and forwards them to the Court until

21 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

22 In support of his IFP Motion, Plaintiff has submitted a certified copy of his inmate

23 trust account statement. (ECF No. 3.) Plaintiff’s statement shows that he had no

24 available funds to his credit at the time of filing. See 28 U.S.C. § 1915(b)(4) (providing

25 that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing

26 a civil action or criminal judgment for the reason that the prisoner has no assets and no

27 means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding

28 that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s

1 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him

2 when payment is ordered.”).

3 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 3) and

4 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350

5 balance of the filing fees due for this case must be collected by the San Diego County

6 Sheriff’s Department and forwarded to the Clerk of the Court pursuant to the installment

7 payment provisions set forth in 28 U.S.C. § 1915(b)(1).

8 II. Screening of Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

9 A. Standard of Review

10 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

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

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

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

14 who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28

15 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en

16 banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C.

17 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or

18 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

19 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d

20 680, 681 (7th Cir. 2012)).

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

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

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

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

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

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

27 12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to

28 “contain sufficient factual matter, accepted as true, to state a claim to relief that is

1 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation

2 marks omitted).

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

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

5 Id. “Determining whether a complaint states a plausible claim for relief [is] ... a context-

6 specific task that requires the reviewing court to draw on its judicial experience and

7 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-

8 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.;

9 see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

10 B. Plaintiff’s Allegations1

11 Plaintiff alleges he is a “state prisoner being held in County Jail.” (Compl. at 3.)

12 Plaintiff claims he has been “denied meaningful access” to the courts. (Id.) He further

13 claims that this denial of access has resulted in causing him to “serve a longer sentence

14 then [he] would have otherwise.” (Id.)

15 Plaintiff is an “ADA inmate” and alleges he is “being discriminated against” and

16 “denied ADA access to all programs.” (Id. at 4.) Plaintiff claims to be “totally disabled”

17 from Parkinson’s disease. (Id.) Plaintiff also claims he has been “denied shower for 90

18 days.” (Id.)

19 Plaintiff seeks injunctive relief, $60,000,000 in compensatory damages, and

20 $60,000,000 in punitive damages. (See id. at 7.)

21 C. 42 U.S.C. § 1983

22 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and

23 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d

24 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must

25 allege two essential elements: (1) that a right secured by the Constitution or laws of the

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1 The Court will refer to the page numbers as they are imprinted by the court’s electronic case filing

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1 United States was violated, and (2) that the alleged violation was committed by a person

2 acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye,

3 789 F.3d 1030, 1035-36 (9th Cir. 2015).

4 D. Access to Courts claims

5 Plaintiff’s access to courts claim are far from clear but he generally alleges that he

6 has been denied access to the courts which purportedly led to Plaintiff “serv[ing] a longer

7 sentence.” (Compl. at 3.)

8 Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518

9 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977), limited in part on other

10 grounds by Lewis, 518 U.S. at 354. To state a claim of a denial of the right to access the

11 courts, a prisoner must establish that he has suffered “actual injury,” a jurisdictional

12 requirement derived from the standing doctrine. Lewis, 518 U.S. at 349. An “actual

13 injury” is “actual prejudice with respect to contemplated or existing litigation, such as the

14 inability to meet a filing deadline or to present a claim.” Id. at 348 (citation and internal

15 quotations omitted). The right of access does not require the State to “enable the prisoner

16 to discover grievances,” or even to “litigate effectively once in court.” Id. at 354; see also

17 Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the

18 “inability to file a complaint or defend against a charge”). Instead, Lewis holds:

19 [T]he injury requirement is not satisfied by just any type of frustrated legal

claim ... Bounds does not guarantee inmates the wherewithal to transform

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themselves into litigating engines capable of filing everything from

21 shareholder derivative actions to slip-and-fall claims. The tools it requires to

be provided are those that the inmates need in order to attack their sentences,

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directly or collaterally, and in order to challenge the conditions of their

23 confinement. Impairment of any other litigating capacity is simply one of the

incidental (and perfectly constitutional) consequences of conviction and

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incarceration.

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26 Id. at 346; see also Spence v. Beard, No. 2:16-CV-1828 KJN P, 2017 WL 896293, at *2-

27 3 (E.D. Cal. Mar. 6, 2017). Indeed, the failure to allege an actual injury is “fatal.” Alvarez

28 v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to show that a ‘non-frivolous

1 legal claim had been frustrated’ is fatal.”) (quoting Lewis, 518 U.S. at 353 & n.4).

2 In addition to alleging an “actual injury,” Plaintiff must also plead facts sufficient

3 to describe the “non-frivolous” or “arguable” nature of underlying claim he contends was

4 lost as result of Defendants’ actions. Christopher v. Harbury, 536 U.S. 403, 413-14

5 (2002). The nature and description of the underlying claim must be set forth in the

6 pleading “as if it were being independently pursued.” Id. at 417.

7 Plaintiff references an appeal but offers no specific facts as to how the actions of

8 the Defendants impeded his ability to pursue an appeal of his conviction or sentence.

9 (See Compl. at 3.) Plaintiff does not allege any “actual injury” or identify any “prejudice

10 with respect to contemplated or existing litigation, such as the inability to meet a filing

11 deadline or to present a claim.” Lewis, 518 U.S. at 348. He does not describe the non‒

12 frivolous or arguable nature of any of the underlying claims in his Complaint. He fails to

13 contend that any action was dismissed because he was “[u]nab[le] to meet a filing

14 deadline or to present a claim,” Lewis, 518 U.S. at 348, as the result of any act or

15 omission on the part of Defendants.

16 Accordingly, the Court finds that Plaintiff has failed to state an access to courts

17 upon which relief can be granted.

18 E. CDCR

19 In addition, to the extent Plaintiff includes the CDCR as a named Defendant, his

20 Complaint fails to state any claim upon which § 1983 relief can be granted. See 28 U.S.C.

21 § 1915(e)(2)(B)(ii). This entity is not a “person” subject to suit under § 1983. See Hale v.

22 State of Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (holding that a state department

23 of corrections is an arm of the state, and thus, not a “person” within the meaning of

24 § 1983.)

25 F. Monell Liability

26 To the extent that Plaintiff names the “San Diego Sheriff’s Department,”

27 (“SDSD”) as a Defendant, he fails to state a claim upon which § 1983 relief may be

28 granted. Departments of municipal entities are not “persons” subject to suit under § 1983;

1 therefore, a local law enforcement agency, like the SDSD, are not proper parties. See

2 Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (“Naming a

3 municipal department as a defendant is not an appropriate means of pleading a § 1983

4 action against a municipality.”) (citation omitted); Powell v. Cook County Jail, 814 F.

5 Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes liability on any ‘person’ who

6 violates someone’s constitutional rights ‘under color of law.’ Cook County Jail is not a

7 ‘person.’”).

8 “Persons” under § 1983 are state and local officials sued in their individual

9 capacities, private individuals and entities which act under color of state law, and/or the

10 local governmental entity itself. Vance, 928 F. Supp. at 995-96. The SDSD is a law

11 enforcement agency or department of the County of San Diego, but it is not a “person”

12 subject to suit under § 1983. See e.g., United States v. Kama, 394 F.3d 1236, 1239 (9th

13 Cir. 2005) (“[M]unicipal police departments and bureaus are generally not considered

14 ‘persons’ within the meaning of section 1983.”); Rodriguez v. Cnty. of Contra Costa,

15 2013 WL 5946112 at *3 (N.D. Cal. Nov. 5, 2013) (citing Hervey v. Estes, 65 F.3d 784,

16 791 (9th Cir. 1995)) (“Although municipalities, such as cities and counties, are amenable

17 to suit under Monell [v. Dep’t of Social Servs, 436 U.S. 658 (1978)], sub-departments or

18 bureaus of municipalities, such as the police departments, are not generally considered

19 “persons” within the meaning of § 1983.”); Nelson v. Cty. of Sacramento, 926 F. Supp.

20 2d 1159, 1170 (E.D. Cal. 2013) (dismissing Sacramento Sheriff’s Department from

21 section 1983 action “with prejudice” because it “is a subdivision of a local government

22 entity,” i.e., Sacramento County); Gonzales v. City of Clovis, 2013 WL 394522 (E.D. Cal.

23 Jan. 30, 2013) (holding that the Clovis Police Department is not a “person” for purposes

24 of section 1983).

25 To the extent Plaintiff also asserts a claim against the County of San Diego itself,

26 his allegations are also insufficient. A municipal entity may be held liable under § 1983

27 only if he 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, 436 U.S. at 691; Villegas v. Gilroy Garlic Festival Ass’n, 541

3 F.3d 950, 964 (9th Cir. 2008). The County of San Diego may not be held vicariously

4 liable under § 1983 simply because one of its employees is alleged to have acted

5 wrongfully. See Board of Cty. Comm’rs. v. Brown, 520 U.S. 397, 403 (1997); Monell,

6 436 U.S. at 691 (“[A] a municipality cannot be held liable solely because it employs a

7 tortfeasor.”); Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir. 2014). Instead, the

8 municipality may be held liable “when execution of a government’s policy or custom ...

9 inflicts [a constitutional] injury.” Monell, 436 U.S. at 694; Los Angeles Cty., Cal. v.

10 Humphries, 562 U.S. 29, 36 (2010).

11 G. Sheriff Gore -- Individual Liability

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

13 under § 1983, there are no specific factual allegations as to this Defendant.

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

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

16 556 U.S. at 676-77; Jones v. Comm’ty Redev. Agency of City of Los Angeles, 733 F.2d

17 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least some degree of

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

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

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

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

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

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

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

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

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

27 1979) (when a named defendant holds a supervisorial position, the causal link between

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

1 H. Claims against Beccera

2 Plaintiff seeks to hold Defendant Becerra liable because he purportedly is

3 “responsible for upholding const[itution].” (Compl. at 2.) “The inquiry into causation

4 must be individualized and focus on the duties and responsibilities of each individual

5 defendant whose acts or omissions are alleged to have caused a constitutional

6 deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode,

7 423 U.S. 362, 370-71 (1976); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986);

8 Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of

9 course, a required element of a § 1983 claim.”) A person deprives another “of a

10 constitutional right, within the meaning of section 1983, if he does an affirmative act,

11 participates in another’s affirmative acts, or omits to perform an act which he is legally

12 required to do that causes the deprivation of which [the plaintiff complains].” Johnson v.

13 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff has not stated a claim against this

14 Defendant because he has failed to allege facts regarding what actions were taken or not

15 taken by this Defendant which caused the alleged constitutional violations.

16 I. Leave to Amend

17 Thus, for all these reasons, the Court finds Plaintiff’s Complaint fails to state any

18 § 1983 claim upon which relief can be granted, and that it must be dismissed sua sponte

19 and in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See

20 Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. Because Plaintiff is proceeding

21 pro se, however, the Court having now provided him with “notice of the deficiencies in

22 his complaint,” will also grant him an opportunity to fix them. See Akhtar v. Mesa, 698

23 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.

24 1992)).

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1 III. Conclusion and Orders

2 For the reasons explained, the Court:

3 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

4 (ECF No. 3);

5 2. DIRECTS the Watch Commander, or his designee, to collect from

6 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing

7 monthly payments from his account in an amount equal to twenty percent (20%) of the

8 preceding month’s income and forwarding those payments to the Clerk of the Court each

9 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

10 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

11 ASSIGNED TO THIS ACTION;

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

13 Commander, San Diego Central Jail, 1173 Front Street, San Diego, California 92101;

14 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

15 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) and

16 GRANTS him forty-five (45) days leave from the date of this Order in which to file an

17 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s

18 Amended Complaint must be complete by itself without reference to his original

19 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint

20 will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard

21 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading

22 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)

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

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

25 If Plaintiff fails to file an Amended Complaint within the time provided, the Court

26 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to

27 state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)

28 and 1915A(b), and his failure to prosecute in compliance with a court order requiring

1 ||amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

2 ||not take advantage of the opportunity to fix his complaint, a district court may convert the

3 || dismissal of the complaint into dismissal of the entire action.”’).

4 5. The Clerk of Court is directed to mail a court approved form civil rights

5 ||complaint to Plaintiff.

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7 IS SO ORDERED.

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9 ||Dated: April 6, 2020 © ¢

10 Hon, Anthony J.Battaglia

11 United States District Judge

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