# Conway v. San Diego Sheriff's Office

> District Court, S.D. California · February 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10082999

## Case

- **Court:** District Court, S.D. California
- **Decided:** February 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10082999

## How later opinions describe it (automated extraction)

- 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)”

## Opinion text

1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 JOE CONWAY, Case No.: 3:20-cv-02418-GPC-BGS
Booking #19706874,
12
ORDER:
Plaintiff,
13
vs. 1) GRANTING MOTION TO
14
PROCEED IN FORMA PAUPERIS
SAN DIEGO SHERIFF’S OFFICE;
15 [ECF No. 2]
GEORGE BAILEY DETENTION

16 FACILITY; A. APEZ; MICHAEL R.
AND
BARNETT; OFFICER McDONALD,
17
Defendants. 2) DISMISSING COMPLAINT FOR
18
FAILING TO STATE A CLAIM
19 PURSUANT TO
28 U.S.C. § 1915(e)(2)(B) AND
20
28 U.S.C. § 1915A(b)
21
22 Joe Conway (“Plaintiff”), while incarcerated at the San Diego County Sheriff
23 Department’s George Bailey Detention Facility (“GBDF”) in San Diego, California, and
24 proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (See
25 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. 2).
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, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th
10 Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C.
11 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
12 Section 1915(a)(2) 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 In support of his IFP Motion, Plaintiff has submitted a copy of his San Diego
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 County Sheriff’s Department Inmate Trust Account Activity statement. See ECF No. 2 at
2 4; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. This
3 statement shows that Plaintiff had only a $3.49 available balance to his credit at the time
4 of filing. See ECF No. 2.
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 (ECF No. 2),
15 declines to exact an initial filing fee because his trust account statements suggest he may
16 have “no means to pay it,” Bruce, 136 S. Ct. at 629, and instead directs the Watch
17 Commander at GBDF, or his designee, to collect the entire $350 balance of the filing fee
18 required by 28 U.S.C. § 1914 and to forward all payments to the Clerk of the Court
19 pursuant to the installment 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 Cir.
4 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 whether
11 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires
12 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere
13 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also
14 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, accepted
22 as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678
23 (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. 42 U.S.C. § 1983
14 “Section 1983 creates a private right of action against individuals who, acting
15 under color of state law, violate federal constitutional or statutory rights.” Devereaux v.
16 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of
17 substantive rights, but merely provides a method for vindicating federal rights elsewhere
18 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks
19 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)
20 deprivation of a right secured by the Constitution and laws of the United States, and (2)
21 that the deprivation was committed by a person acting under color of state law.” Tsao v.
22 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
23 C. Factual Allegations
24 Plaintiff claims on August 18, 2020 unnamed deputies “unlocked the door”
25 allowing Mexican inmates to “run into [the] module.” (Compl. at 3.) These inmates
26 allegedly “began attacking” seven Black inmates. (Id.) Plaintiff claims he was “beaten
27 in [his] head,” back, and foot. (Id.) As a result, Plaintiff is experiencing pain in his back,
28 neck, and right knee. (See id.) He further claims he has not “received proper medical
1 attention and/or medication.” (Id.)
2 Plaintiff seeks $53,000 in compensatory damages and $53,000 in punitive
3 damages. (Id. at 6.)
4 D. Individual Causation
5 As an initial matter, Plaintiff’s Complaint fails to contain any specific factual
6 allegations against Defendants Apez, Barnett, and McDonald and contains no “further
7 factual enhancement” which describes how, or to what extent, these individuals became
8 aware of, or were actually aware of, any alleged constitutional violation. “Because
9 vicarious liability is inapplicable to . . . §1983 suits, a plaintiff must plead that each
10 government-official defendant, through the official’s own individual actions, has violated
11 the Constitution.” Iqbal, 556 U.S. at 676; see also Jones v. Community Redevelopment
12 Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff
13 must “allege with at least some degree of particularity overt acts which defendants
14 engaged in” in order to state a claim).
15 “Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks
16 v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into causation must
17 be individualized and focus on the duties and responsibilities of each individual
18 defendant whose acts or omissions are alleged to have caused a constitutional
19 deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode,
20 423 U.S. 362, 370-71 (1976). There are no factual allegations linking Defendants Apez,
21 Barnett, and McDonald to any of his claims regarding alleged constitutional violations.
22 Thus, for these reasons, the Court finds that Plaintiff’s claims against Apez,
23 Barnett, and McDonald must be dismissed for failing to state a claim upon which relief
24 may be granted.
25 E. San Diego Sheriff’s Office
26 To the extent that Plaintiff names the “San Diego Sheriff’s Office,” (“SDSO”) and
27 GBDF as Defendants, he fails to state a claim upon which § 1983 relief may be granted.
28 Departments of municipal entities are not “persons” subject to suit under § 1983;
1 therefore, a local law enforcement agency, like the SDSO, and detention facilities are not
2 proper parties. See Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal.
3 1996) (“Naming a municipal department as a defendant is not an appropriate means of
4 pleading a § 1983 action against a municipality.”) (citation omitted); Powell v. Cook
5 County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes liability on
6 any ‘person’ who violates someone’s constitutional rights ‘under color of law.’ Cook
7 County Jail is not a ‘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 SDSO 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); Wade v. Fresno Police Dep’t, 2010 WL 2353525 at *4 (E.D. Cal. June
25 9, 2010) (finding the Fresno Police Department to not be a “person” under section 1983).
26 Therefore, Shepard cannot pursue any § 1983 civil rights claims against the “San Diego
27 Sheriff’s Department.” See Boone v. Deutsche Bank Nat’l Tr. Co., No. 2:16-CV-1293-
28 GEB-KJN-PS, 2017 WL 117966, at *3 (E.D. Cal. Jan. 12, 2017) (“Because the Solano
1 County Sheriff’s Department is not a ‘person’ within the meaning of Section 1983,
2 plaintiffs cannot maintain their claims against it under that statute as a matter of law.”).
3 To the extent Plaintiff is attempting to state a claim against the County of San
4 Diego itself, his allegations are also insufficient. A municipal entity may be held liable
5 under § 1983 only if he alleges facts sufficient to plausibly show that he was deprived of
6 a constitutional right by individually identified employees who acted pursuant to the
7 municipality’s policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S.
8 274, 280 (1977); Monell, 436 U.S. at 691; Villegas v. Gilroy Garlic Festival Ass’n, 541
9 F.3d 950, 964 (9th Cir. 2008). The County of San Diego may not be held vicariously
10 liable under § 1983 simply because one of its employees is alleged to have acted
11 wrongfully. See Board of Cty. Comm’rs. v. Brown, 520 U.S. 397, 403 (1997); Monell,
12 436 U.S. at 691 (“[A] a municipality cannot be held liable solely because it employs a
13 tortfeasor.”); Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir. 2014). Instead, the
14 municipality may be held liable “when execution of a government’s policy or custom . . .
15 inflicts [a constitutional] injury.” Monell, 436 U.S. at 694; Los Angeles Cty., Cal. v.
16 Humphries, 562 U.S. 29, 36 (2010).
17 Therefore, the Court DISMISSES all claims against the San Diego Sheriff’s Office
18 and George Bailey Detention Facility for failing to state a claim upon which § 1983 relief
19 can be granted.
20 F. Leave to Amend
21 Accordingly, the Court finds that Plaintiff’s Complaint fails to state a plausible
22 claim against any named Defendant, and that therefore, it is subject to sua sponte
23 dismissal in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See
24 Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.
25 Because he is proceeding pro se, however, the Court having now provided him
26 with “notice of the deficiencies in his complaint,” will also grant Plaintiff an opportunity
27 to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v.
28 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). If Plaintiff chooses to file an amended
1 complaint, he should include specific factual allegations against named defendants and
2 explain how these individuals allegedly violated his constitutional rights.
3 III. Conclusion and Orders
4 For the reasons explained, the Court:
5 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
6 (ECF No. 2).
7 2. DIRECTS the Watch Commander of GBDF, or his designee, to collect from
8 Plaintiff’s inmate trust account the $350 filing fee owed in this case by garnishing
9 monthly payments in an amount equal to twenty percent (20%) of the preceding month’s
10 income and forwarding those payments to the Clerk of the Court each time the amount in
11 the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST
12 BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS
13 ACTION.
14 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch
15 Commander, George Bailey Detention Facility, 446 Alta Road, San Diego, California,
16 92158.
17 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which
18 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and
19 GRANTS him thirty (30) days leave from the date of this Order in which to file an
20 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s
21 Amended Complaint must be complete by itself without reference to his original
22 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint
23 will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard
24 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading
25 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)
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.”).
28 5. The Clerk of Court is directed to mail Plaintiff a court approved civil rights
1 complaint form for his use in amending.
2 IT ISSO ORDERED.
3 Dated: February 3, 2021 2
4 Hon. athe Cae
5 United States District Judge
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10082999. Public record. Not legal advice.