Bowman v. Heath and Human Services Agency

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 JERRY BRYANT BOWMAN, aka Case No.: 3:21-cv-01287-BTM-MDD

ABDULLAH MUHAMMED NAYM

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SALAAM, CDCR #T-86719, ORDER:

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Plaintiff,

(1) GRANTING MOTION TO

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vs. PROCEED IN FORMA PAUPERIS

15 [ECF No. 2]

HEALTH AND HUMAN SERVICES

16 AGENCY; CHILD WELFARE

AND

SERVICES,

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Defendants. (2) DISMISSING COMPLAINT FOR

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FAILING TO STATE A CLAIM

19 PURSUANT TO Fed. R. Civ. P.

8(a)(1), (2), 28 U.S.C. § 1915(e)(2)(B)

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AND § 1915A(b)(1)

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22 Plaintiff, Jerry Bowman, currently incarcerated at California Correctional Institution

23 (“CCI”) in Tehachapi, California, and proceeding pro se has filed a civil rights Complaint

24 (“Compl.”) pursuant to 42 U.S.C. § 1983. (See ECF No. 1.) Bowman did not pay the civil

25 filing fee required by 28 U.S.C. § 1914(a) at the time he filed his Complaint; instead, he

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

27 (ECF 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 of

4 $402.1 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). The fee is not waived for prisoners, however.

8 If granted leave to proceed IFP, they nevertheless remain obligated to pay the entire fee in

9 “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v.

10 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their actions are

11 dismissed for other reasons. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281

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

13 To qualify, section 1915(a)(2) requires prisoners seeking leave to proceed IFP to

14 submit a “certified copy of the trust fund account statement (or institutional equivalent) for

15 . . . the 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 balance

19 in the account for the past six months, whichever is greater, unless the prisoner has no

20 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody

21 of the prisoner then collects subsequent payments, assessed at 20% of the preceding

22 month’s income, in any month in which his account exceeds $10, and forwards those

23 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

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1 Effective December 1, 2020, civil litigants must pay an additional administrative fee of

27 $52, in addition to the $350 filing fee set by statute. See 28 U.S.C. § 1914(a) (Judicial

Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)).

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1 In support of his Motion to Proceed IFP, Plaintiff has submitted a CCI Prison

2 Certificate and copy of his CDCR Inmate Statement Report. (See ECF No. 2 at 3, 7‒9.)

3 See also 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These

4 documents show Plaintiff had no money in his trust account during the six-month period

5 prior to his filing suit, and consequently no available balance to his credit at the time of

6 filing. (See ECF No. 2 at 3, 7.) Based on this accounting, the Court GRANTS Plaintiff’s

7 Motion to Proceed IFP (ECF No. 2) and assesses no initial partial filing fee. See 28 U.S.C.

8 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a

9 civil action or appealing a civil action or criminal judgment for the reason that the prisoner

10 has no assets and no means by which to pay the initial partial filing fee.”); Bruce, 577 U.S.

11 at 84‒85; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-

12 valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ...

13 due to the lack of funds available to him when payment is ordered.”). Instead, the Court

14 DIRECTS the Secretary of the California Department of Corrections and Rehabilitation

15 (“CDCR”), or her designee, to collect the entire $350 balance of the filing fees required by

16 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the installment

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

18 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A

19 A. Standard of Review

20 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a

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

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

23 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who

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

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

26 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

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

28 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

1 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

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

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

4 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

5 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

6 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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

8 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,

9 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

10 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

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

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

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

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

15 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

16 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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

18 B. Discussion

19 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

20 elements: (1) that a right secured by the Constitution or laws of the United States was

21 violated, and (2) that the alleged violation was committed by a person acting under the

22 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,

23 1035-36 (9th Cir. 2015).

24 As currently presented, Plaintiff’s Complaint fails to comply with Federal Rule of

25 Civil Procedure 8 and fails to state a claim upon which relief may be granted. See Iqbal,

26 556 U.S. at 677-78; 28 U.S.C. § 1915(e)(2)(B)(ii), § 1915A(b)(1). This is because

27 Plaintiff’s Complaint contains no factual allegations whatsoever. He names the State of

28 California’s “Health and Human Services Agency” and “Child Welfare Services” as the

1 sole Defendants, but he does not say what either agency, or any person employed by either

2 of those agencies did, failed to do, or how those acts or omissions caused a violation of any

3 identifiable Constitutional right. (See Compl. at 1‒3). In fact, while Plaintiff used the

4 Court’s form fill-in-the-blank § 1983 Civil Rights Complaint form which asks him to list

5 Defendants by name and explain how each “was acting under color of law,” Plaintiff leaves

6 the form blank. (Id. at 3.) In the “Causes of Action” section of his pleading, when asked

7 to identify which of his civil rights has been violated, to “include all facts [he] consider[s]

8 important,” to “state what happened clearly and in [his] own words,” and to “describe

9 exactly what each defendant, by name, did to violate [his] right[s],” he merely asks the

10 Court to consult the nearly 400 pages of exhibits he has attached. (Id.)

11 These exhibits are comprised of a miscellaneous jumble of Judicial Council of

12 California “application-petition” forms Plaintiff appears to have completed, but seemingly

13 not to have actually filed, in San Diego County Superior Court. Included are petitions for

14 resentencing and dismissal, a certification of rehabilitation or pardon, a writ of habeas

15 corpus under California’s Lanterman-Petris Short (“LPS”) Act,2 petitions to seal arrest and

16 related records, motions for expungement of DNA profiles and samples, to waive court

17 fees, and for modification of sentence, and random portions of criminal trial records and

18 orders issued San Diego Superior Court Case Nos. SCS159198, SCS171389, SCS227759.3

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21 2 California’s LPS Act, Cal. Welf. & Inst. Code §§ 5000 et seq., is “a comprehensive

scheme designed to address a variety of circumstances in which a member of the general

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population may need to be evaluated or treated for different lengths of time.” Cooley v.

23 Superior Ct., 29 Cal. 4th 228, 253 (2002).

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3 Plaintiff was convicted of robbery and false imprisonment in 2010 in San Diego Superior

25 Court Case No. SCS227759, and sentenced to an aggregate term of 16 years due to several

sentence enhancements and prison and strike priors. See People v. Bowman, 202 Cal. App.

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4th 353, 354-56 (4th Dist. Ct. App. March 14, 2011). His conviction and sentence were

27 affirmed on direct appeal. Id. at 367. Plaintiff’s subsequent petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254 was dismissed as untimely by U.S. District Judge

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1 (See Compl. at 13‒18, 48, 83‒86, 102‒103, 105‒107, 120‒128, 228‒235, 289‒329.) In

2 addition, Plaintiff includes CDCR Inmate/Parolee Appeal, Legal Status Summary, and

3 Medical Classification Chronos and Mental Health Documentation forms, id. at 201‒206,

4 220‒221, 351‒367, a State of California Determinate Sentence Calculation Worksheet, a

5 Release Date Change Notice, id. at 222‒226, the text of 2017 California Assembly Bill

6 1793 and California Senate Bill 420, newspaper articles and Wikipedia pages discussing

7 the regulation of medical marijuana, id. at 207‒209, 236‒288, and letters and brochures

8 provided to him by various San Diego County Social Service agencies. (Id. at 330‒350.)

9 This type of submission falls far short of stating a plausible claim for relief. See

10 Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

11 “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain

12 statement of the claim,” Fed. R. Civ. P. 8(a)(2), and that “each allegation must be simple,

13 concise, and direct.” Fed. R. Civ. P. 8(d)(1). See Iqbal, 556 U.S. at 677-78. In addition

14 to the grounds for sua sponte dismissal set out in § 1915(e)(2)(B) and § 1915A(b), the

15 district court may also dismiss a complaint for failure to comply with Rule 8 if it fails to

16 provide the defendant fair notice of the wrongs allegedly committed. See McHenry v.

17 Renne, 84 F.3d 1172, 1178–80 (9th Cir. 1996) (upholding Rule 8(a) dismissal of complaint

18 that was “argumentative, prolix, replete with redundancy, and largely irrelevant”); Cafasso,

19 United States ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th Cir.

20 2011) (citing cases upholding Rule 8 dismissals where pleadings were “verbose,”

21 “confusing,” “distracting, ambiguous, and unintelligible,” “highly repetitious,” and

22 comprised of “incomprehensible rambling,” while noting that “[o]ur district courts are busy

23 enough without having to penetrate a tome approaching the magnitude of War and Peace

24 to discern a plaintiff’s claims and allegations.”). “Rule 8 marks a notable and generous

25 departure from the hyper-technical, code pleading regime of a prior era, but it does not

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2016 WL 4013675, at *6 (S.D. Cal. July 27, 2016). Plaintiff did not appeal the dismissal

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1 unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”

2 Iqbal, 556 U.S. at 678‒79. Thus, where a “[p]laintiff fails to identify the specific claims

3 he brings, much less the intended targets of such claims …. [and] [d]isentangling and

4 interpreting plaintiff’s complaint would be excessively time-consuming for the court,” a

5 sua sponte dismissal pursuant to Rule 8 is appropriate. Kuzmicki v. Hanrahan, No. 3:17-

6 CV-00342-RCJ-VPC, 2017 WL 3996400, at *4 (D. Nev. Sept. 11, 2017), report and

7 recommendation adopted, No. 3:17-CV-00342-RCJ-VPC, 2017 WL 4873065 (D. Nev.

8 Oct. 27, 2017) (citing McHenry, 84 F.3d at 1179).

9 And while the court “ha[s] an obligation where the petitioner is pro se, particularly

10 in civil rights cases, to construe the pleadings liberally and to afford the petitioner the

11 benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing

12 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential

13 elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of

14 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Even pro se litigants must “allege with at least

15 some degree of particularity overt acts which defendants engaged in” in order to state a

16 claim. Jones v. Comm’ty Redev. Agency of City of Los Angeles, 733 F.2d 646, 649 (9th

17 Cir. 1984). Complaints like the one Plaintiff has filed, which “tender [only] ‘naked

18 assertion[s]’ devoid of ‘further factual enhancement’” do not suffice. Iqbal, 556 U.S. at

19 678 (quoting Twombly, 550 U.S. at 557). At most, Plaintiff refers to the “ADA,” his “fully

20 verified disability[ies],” and his need for “reasonable accommodations,” see Compl. at 8,

21 but these are merely statutes and conclusions, which while they “can provide the

22 framework of a complaint, . . . must be supported by factual allegations” lest the Plaintiff

23 face dismissal. Iqbal, 556 U.S. at 678.

24 In short, it is “‘not the district court’s job to stitch together cognizable claims for

25 relief from [a] wholly deficient pleading.’” Hearns v. San Bernardino Police Dept., 530

26 F.3d 1124, 1132 (9th Cir. 2008) (citation omitted). “[A] pro se litigant cannot simply dump

27 a stack of exhibits on the court and expect the court to sift through them to determine if

28 some nugget is buried somewhere in that mountain of papers, waiting to be unearthed and

1 refined into a cognizable claim.’” Thomas v. Donovan, No. 3:19-CV-02181-JAH-RBB,

2 2020 WL 5106663, at *5 (S.D. Cal. Aug. 28, 2020) (quoting Samtani v. City of Laredo,

3 274 F. Supp. 3d 695, at *2 (S.D. Texas 2017)). “The Court will not comb through attached

4 exhibits seeking to determine whether a claim possibly could have been stated where the

5 pleading itself does not state a claim. In short, [Plaintiff] must state a claim, not merely

6 attach exhibits.” Stewart v. Nevada, No. 2:09-CV-01063, 2011 WL 588485, at *2 (D. Nev.

7 Feb. 9, 2011).

8 Accordingly, the Court DISMISSES Plaintiff’s Complaint sua sponte pursuant to

9 Fed. R. Civ. P. 8(a)(1), (2) and 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) for failing to

10 state a claim upon which § 1983 relief can be granted, but will give him the opportunity to

11 fix his pleading deficiencies, if he can. See Lopez, 203 F.3d at 1130 (“[A] district court

12 should grant leave to amend even if no request to amend the pleading was made, unless it

13 determines that the pleading could not possibly be cured by the allegation of other facts.”)

14 (citation omitted); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se

15 litigant must be given leave to amend his or her complaint, and some notice of its

16 deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be

17 cured by amendment.” (citation omitted).

18 III. Conclusion and Orders

19 For the reasons discussed, the Court:

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

21 (ECF No. 2).

22 2. DIRECTS the Secretary of the CDCR, or her designee, to collect from

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

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

25 month’s income and forwarding those payments to the Clerk of the Court each time the

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

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

28 THIS ACTION.

1 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen

2 || Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by U.S.

3 || Mail, or by forwarding an electronic copy to trusthelpdesk @cdcr.ca.gov.

4 4. DISMISSES Plaintiff's Complaint in its entirety for failing to comply with

5 || the Federal Rule of Civil Procedure 8 and for failing to state a claim upon which relief may

6 || be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).

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

8 || which to file an Amended Complaint which cures the deficiencies of pleading noted.

9 || Plaintiff's Amended Complaint must be complete by itself without reference to his original

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

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

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

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

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

15 || pleading may be “considered waived if not repled.”’).

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

17 || will enter a final Order dismissing this civil action based both on Plaintiffs failure to state

18 claim upon which relief can be granted pursuant to 28 U.S.C. $§ 1915(e)(2)(B) and

19 ||} 1915A(b), and his failure to prosecute in compliance with a court order requiring

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

21 take advantage of the opportunity to fix his complaint, a district court may convert the

22 || dismissal of the complaint into dismissal of the entire action.’’).

23 IT IS SO ORDERED.

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25 Dated: December 13, 2021 so ‘

26 Hon. Buy Ted Moskowitz ; :

17 United States District Judge

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