“If a plaintiff does 22 ||not take advantage of the opportunity to fix his complaint, a district court may convert the 23 || dismissal of the complaint into dismissal of the entire action.”
How later courts described this case
- “If a plaintiff does 22 ||not take advantage of the opportunity to fix his complaint, a district court may convert the 23 || dismissal of the complaint into dismissal of the entire action.”
- noting that screening pursuant to § 1915A “incorporates the familiar standard 9 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 10 12(b)(6)”
- even pro se plaintiff must “allege with at 15 least me degree of particularity overt acts which defendants engaged in” in order to state 16 a claim
- “Causation is, of course, a required 20 element of a § 1983 claim.”
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 JOSE LOPEZ MONDRAGON, Case No.: 3:20-cv-01574-DMS-AHG
Inmate Booking No. 20921587,
12
ORDER:
Plaintiff,
13
vs. 1) GRANTING MOTION TO
14
PROCEED IN FORMA PAUPERIS
15 [ECF No. 2]
COUNTY OF SAN DIEGO; WILLIAM
16
GORE; UNKNOWN DEPUTIES; S.D. AND
17 COUNTY MEDICAL PROVIDERS,
18 Defendants. 2) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM
19 PURSUANT TO 28 U.S.C. § 1915(e)(2)
& 28 U.S.C. § 1915A(b)
20
21
22 Jose Lopez Mondragon (“Plaintiff”), currently housed at the Vista Detention
23 Facility (“VDF”) in San Diego, California and proceeding pro se, has filed a civil rights
24 complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1).
25 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when
26 he filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”)
27 pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).
28 / / /
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). However,
7 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in
8 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629
9 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of
10 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v.
11 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
12 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a
13 “certified copy of the trust fund account statement (or institutional equivalent) for ... the
14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
16 trust account statement, the Court assesses an initial payment of 20% of (a) the average
17 monthly deposits in the account for the past six months, or (b) the average monthly
18 balance in the account for the past six months, whichever is greater, unless the prisoner
19 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having
20 custody of the prisoner then collects subsequent payments, assessed at 20% of the
21 preceding month’s income, in any month in which his account exceeds $10, and forwards
22 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);
23 Bruce, 136 S. Ct. at 629.
24
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.
June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed
28
1 In support of his IFP Motion, Plaintiff has submitted a copy of his Inmate
2 Statement Report as well as a Prison Certificate completed by an accounting officer at
3 VDF. See ECF No. 2; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at
4 1119. These statements show that Plaintiff has carried an average monthly balance of
5 $80.00 and had $80.00 in average monthly deposits to his account over the 6-month
6 period immediately preceding the filing of his Complaint. In addition, Plaintiff had
7 $113.00 balance at the time of filing. (See ECF No. 2.) Based on this accounting, the
8 Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and assesses his initial
9 partial filing fee to be $16.00 pursuant to 28 U.S.C. § 1915(b)(1).
10 The Court will direct the Watch Commander, or their designee, to collect the initial
11 $16.00 fee assessed only if sufficient funds are available in Plaintiff’s account at the time
12 this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a
13 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal
14 judgment for the reason that the prisoner has no assets and no means by which to pay the
15 initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that
16 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP
17 case based solely on a “failure to pay ... due to the lack of funds available to him when
18 payment is ordered.”). The remaining balance of the $350 total fee owed in this case must
19 be collected by the agency having custody of the prisoner and forwarded to the Clerk of
20 the Court pursuant 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 prisoner and is proceeding IFP, his Complaint also requires a
24 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
25 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of
26 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants
27 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
28 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
1 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that
2 the targets of frivolous or malicious suits need not bear the expense of responding.’”
3 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).
4 “The standard for determining whether a plaintiff has failed to state a claim upon
5 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
6 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668
7 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
8 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
9 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
10 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted
11 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
12 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
13 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
14 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
15 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for
16 relief [is] ... a context-specific task that requires the reviewing court to draw on its
17 judicial experience and common sense.” Id. The “mere possibility of misconduct” or
18 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting
19 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969
20 (9th Cir. 2009).
21 B. Plaintiff’s Factual Allegations
22 Plaintiff’s factual allegations are sparse at best. Plaintiff claims his car was
23 “illegally search[ed]” without his “consent and without [Plaintiff] being present.”
24 (Compl. at 3.) He further claims that he has not “been able to go to court to clear [his]
25 name due to the fact courts are backed up.” (Id. at 4.) He also appears to claim that he
26 should have been “book[ed] and release[ed]” as a “non-violent offender.” (Id.) Plaintiff
27 alleges that his bail was set at $200,000 and has been “exposed to Covid-19 while in
28 custody.” (Id. at 5.)
1 C. 42 U.S.C. § 1983
2 “Section 1983 creates a private right of action against individuals who, acting
3 under color of state law, violate federal constitutional or statutory rights.” Devereaux v.
4 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of
5 substantive rights, but merely provides a method for vindicating federal rights elsewhere
6 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks
7 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)
8 deprivation of a right secured by the Constitution and laws of the United States, and (2)
9 that the deprivation was committed by a person acting under color of state law.” Tsao v.
10 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
11 D. Younger Abstention
12 As stated above, there are few facts in Plaintiff’s Complaint but he appears to
13 challenge the basis for his current detention and ongoing state criminal proceeding. To
14 the extent that Plaintiff is currently in the process of facing state criminal charges and
15 requests that this Court intervene in the state court’s decisions, the Court declines to do
16 so. A federal court cannot interfere with ongoing state criminal proceedings by granting
17 injunctive relief absent a showing of the state’s bad faith or harassment, or a showing that
18 the statute challenged is “flagrantly and patently violative of express constitutional
19 prohibitions.” Younger v. Harris, 401 U.S. 37, 46, 53-54 (1971).
20 Younger abstention is appropriate if four criteria are met: (1) state judicial
21 proceedings are ongoing; (2) the state proceedings implicate an important state interest;
22 (3) the state proceedings offer an adequate opportunity to litigate federal questions; and
23 (4) the federal court action would “enjoin the proceeding or have the practical effect of
24 doing so, i.e., would interfere with the state proceeding in a way that Younger
25 disapproves.” San Jose Silicon Valley Chamber of Commerce PAC v. City of San Jose,
26 546 F.3d 1087, 1092 (9th Cir. 2008). Here, because it appears that Plaintiff has ongoing
27 criminal proceedings in state court, abstention as to Plaintiff’s Fourth Amendment and
28 due process claims pursuant to the Younger doctrine is warranted.
1 E. Medical claims
2 Plaintiff also alleges that he has been “exposed to Covid-19 while in custody.”
3 (Compl. at 5.) While this is a serious concern, based on Plaintiff’s lack of factual
4 allegations and failure to indicate what relief he is seeking as a result of this alleged
5 exposure, the Court finds that he fails to state a claim upon which relief may be granted.
6 Plaintiff also does not name any individual as responsible for alleged constitutional
7 violations with the exception of Sheriff William Gore in his official capacity. (See
8 Compl. at 2.)
9 There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v.
10 Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). “Because vicarious liability is
11 inapplicable to ... § 1983 suits, [Plaintiff] must plead that each government-official
12 defendant, through the official’s own individual actions, has violated the Constitution.”
13 Iqbal, 556 at 676; see also Jones v. Community Redevelopment Agency of City of Los
14 Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at
15 least me degree of particularity overt acts which defendants engaged in” in order to state
16 a claim). “A plaintiff must allege facts, not simply conclusions, t[o] show that [each
17 defendant] was personally involved in the deprivation of his civil rights.” Barren v.
18 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Estate of Brooks ex rel. Brooks
19 v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required
20 element of a § 1983 claim.”).
21 As currently pleaded, Plaintiff’s Complaint offers no factual detail from which the
22 Court might reasonably infer a plausible inadequate medical care claim as to Defendant
23 Gore. Instead, Plaintiff only lists Sheriff Gore as “Sheriff of San Diego” and “unknown
24 Deputies” as Defendants. (Compl. at 2.) But Fed. R. Civ. P. 8 “demands more than an
25 unadorned, the-defendant-unlawfully-harmed-me accusation,” and in order “[t]o survive
26 a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
27 to ‘state a claim for relief that is plausible on its face.’” Iqbal, 662 U.S. at 678 (quoting
28 Twombly, 550 U.S. at 555, 570).
1 Moreover, supervisory officials may only be held liable under § 1983 if Plaintiff
2 alleges their “personal involvement in the constitutional deprivation, or … a sufficient
3 causal connection between the supervisor’s wrongful conduct and the constitutional
4 violation.” Keates v. Koile, 883 F.3d 1228, 1242-43 (9th Cir. 2018); Starr v. Baca, 652
5 F.3d 1202, 1207 (9th Cir. 2011). Plaintiff makes no such allegations in his Complaint.
6 Therefore, the Court dismisses Defendant Gore sua sponte based on Plaintiff’s failure to
7 state a claim against him. See 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1).
8 F. Leave to Amend
9 Accordingly, the Court finds Plaintiff’s Complaint, considered together with the
10 exhibits he has attached, fails to state a claim against any named Defendant, and that
11 therefore, it is subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C.
12 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d
13 at 1004.
14 Because he is proceeding pro se, however, the Court having now provided him
15 with “notice of the deficiencies in his complaint,” will also grant Plaintiff an opportunity
16 to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v.
17 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). If Plaintiff chooses to file an amended
18 pleading, he must allege more specific factual allegations regarding his claims.
19 III. Conclusion and Order
20 For the reasons explained, the Court:
21 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
22 (ECF No. 2).
23 2. DIRECTS the Watch Commander, or their designee, to collect from
24 Plaintiff’s trust account the $16.00 initial filing fee assessed, if those funds are available
25 at the time this Order is executed, and to forward whatever balance remains of the full
26 $350 owed in monthly payments in an amount equal to twenty percent (20%) of the
27 preceding month’s income to the Clerk of the Court each time the amount in Plaintiff’s
28 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE
1 || CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS
2 || ACTION.
3 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch
4 ||Commander, Vista Detention Facility, 325 S. Melrose Drive, San Diego, California
5 92081.
6 4. DISMISSES Plaintiff's Complaint for failing to state a clatm upon which
7 ||relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and
8 GRANTS him sixty (60) days leave from the date of this Order in which to file an
9 || Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff's
10 || Amended Complaint must be complete by itself without reference to his original
11 || pleading. Defendants not named and any claim not re-alleged in his Amended Complaint
12 || will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard
13 || Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading
14 || supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)
15 || (noting that claims dismissed with leave to amend which are not re-alleged in an
16 ||}amended pleading may be “considered waived if not repled.”).
17 If Plaintiff fails to file an Amended Complaint within the time provided, the Court
18 will enter a final Order dismissing this civil action based both on Plaintiff's failure to
19 || state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
20 1915A(b), and his failure to prosecute in compliance with a court order requiring
21 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does
22 ||not take advantage of the opportunity to fix his complaint, a district court may convert the
23 || dismissal of the complaint into dismissal of the entire action.”).
24 IT IS SO ORDERED.
25 ||Dated: August 26, 2020
6 ns my. L4\
Hon. Dana M. Sabraw
27 United States District Judge
28
9