“If a plaintiff does 11 take advantage of the opportunity to fix his complaint, a district court may convert the 12 || dismissal of the complaint into dismissal of the entire action.”
How later courts described this case
- “If a plaintiff does 11 take advantage of the opportunity to fix his complaint, a district court may convert the 12 || dismissal of the complaint into dismissal of the entire action.”
- “A district court should not dismiss a pro se complaint without leave to amend 6 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the 7 deficiencies of the complaint could not be cured by amendment.’”
- noting that claims 4 ||dismissed with leave to amend which are not re-alleged in an amended pleading may be 5 || “considered waived if not repled.”
- noting that screening pursuant to § 1915A “incorporates the familiar standard 17 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 18 12(b)(6)”
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
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10 JEFFREY DANIEL HUDSON, Case No.: 3:22-cv-00196-CAB-DEB
Booking #21149533,
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ORDER:
Plaintiff,
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vs. 1) GRANTING MOTION TO
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PROCEED IN FORMA PAUPERIS
SAN DIEGO SHERIFFS,
14 [ECF No. 5]
Defendants.
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AND
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2) DISMISSING COMPLAINT FOR
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FAILING TO STATE A CLAIM
18 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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21 Jeffrey Daniel Hudson (“Plaintiff”), while detained at George Bailey Detention
22 Facility (“GBDF”) in San Diego, California, and proceeding pro se, filed a civil rights
23 Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff
24 did not pay the fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; instead
25 he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)
26 (ECF No. 5).
27 / / /
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); 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 6-
14 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);
15 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account
16 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits
17 in the account for the past six months, or (b) the average monthly balance in the account
18 for the past six months, whichever is greater, unless the prisoner has no assets. See 28
19 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner
20 then collects subsequent payments, assessed at 20% of the preceding month’s income, in
21 any month in which his account exceeds $10, and forwards those payments to the Court
22 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.
23 In support of his IFP Motion, Plaintiff has submitted a prison certificate authorized
24 by a GBDF Facility Commander, together with a copy of his Inmate Trust Account
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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See
27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.
Dec. 1, 2020). The additional $52 administrative fee does not apply to persons granted leave to proceed
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1 Activity. See ECF No. 5; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d
2 at 1119. This statement shows that Plaintiff had an average monthly balance of $66.73, and
3 average monthly deposits of $166.67 to his account over the 6-month period immediately
4 preceding the filing of his Complaint, as well as an available balance of $200.18 at the time
5 of filing. Based on this financial information, the Court GRANTS Plaintiff’s Motion to
6 Proceed IFP (ECF No. 5), and assesses his initial partial filing fee to be $13.35 pursuant to
7 28 U.S.C. § 1915(b)(1).
8 However, the Court will direct the GBDF Watch Commander, or their designee, to
9 collect this initial fee only if sufficient funds are available in Plaintiff’s account at the time
10 this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a
11 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal
12 judgment for the reason that the prisoner has no assets and no means by which to pay the
13 initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that
14 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner's IFP
15 case based solely on a “failure to pay ... due to the lack of funds available to him when
16 payment is ordered.”). The remaining balance of the $350 total fee owed in this case must
17 be collected and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(1).
18 II. Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A
19 A. Standard of Review
20 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-
21 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes,
22 the Court must review and sua sponte dismiss an IFP complaint, and any complaint filed
23 by a prisoner seeking redress from a governmental entity, or officer or employee of a
24 governmental entity, which is frivolous, malicious, fails to state a claim, or seeks damages
25 from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.
26 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002,
27 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to
28 ensure that the targets of frivolous or malicious suits need not bear the expense of
1 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler
2 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
3 All complaints must contain “a short and plain statement of the claim showing that
4 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
5 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
6 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
7 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a
8 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the
9 reviewing court to draw on its judicial experience and common sense.” Id. The “mere
10 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also
11 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
12 “The standard for determining whether a plaintiff has failed to state a claim upon
13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
15 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
16 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
17 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
18 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted
19 as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal
20 quotation marks omitted); Wilhelm, 680 F.3d at 1121.
21 “When there are well-pleaded factual allegations, a court should assume their
22 veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
23 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
24 (“[W]hen determining whether a complaint states a claim, a court must accept as true all
25 allegations of material fact and must construe those facts in the light most favorable to the
26 plaintiff.”). However, while the court “ha[s] an obligation where the petitioner is pro se,
27 particularly in civil rights cases, to construe the pleadings liberally and to afford the
28 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
1 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply
2 essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the
3 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
4 B. Plaintiff’s Allegations
5 Plaintiff’s factual allegations are sparse. However, he claims he was “beaten, maced,
6 and was bitten” by a police dog “after being placed in handcuffs.” (Compl. at 3.) Plaintiff
7 identifies no specific individuals and instead only names “San Diego Sheriffs” as
8 Defendants. (Id. at 1-2.) Plaintiff also fails to give any specific factual details as to where
9 and when these events took place other than claiming they happened in an “alley behind
10 13th Street.” (Id. at 1.) He claims he was stopped while on his bicycle by a “man who
11 stepped out” of a black car and “pointed a gun” at him. (Id. at 6-7.) Plaintiff “ran away
12 from the man” and San Diego Sheriffs “were already on scene screaming for [him] to get
13 down.” (Id. at 7.) Plaintiff claims he was “punched” and pepper sprayed by unidentified
14 individuals. (Id. at 8.) Plaintiff was later taken by ambulance to a hospital to have his
15 “eyes flushed out” and his leg wound from the police dog treated. (Id. at 8.)
16 Plaintiff seeks $1,000,000 in compensatory damages and $1,000,000 in punitive
17 damages, along with the request to have “all medical bills paid.” (Id. at 11.)
18 C. Fourth Amendment claims
19 The Fourth Amendment prohibits “unreasonable searches and seizures,” and
20 “reasonableness is always the touchstone of Fourth Amendment analysis.” Birchfield v.
21 North Dakota, 136 S. Ct. 2160, 2186 (2016). Reasonableness is generally assessed by
22 carefully weighing “the nature and quality of the intrusion on the individual’s Fourth
23 Amendment interests against the importance of the governmental interests alleged to justify
24 the intrusion.” Tennessee v. Garner, 471 U.S. 1, 8 (1985) (internal quotation marks
25 omitted); Cty. of Los Angeles, Calif. v. Mendez, 137 S. Ct. 1539, 1546 (2017); Zion v. Cty
26 of Orange, 874 F.3d 1072, 1075 (9th Cir. 2017) (citing Graham v. Connor, 490 U.S. 368,
27 388 (1989)).
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1 First, the Court finds that Plaintiff’s pleading offers no “factual content that allows
2 the court to draw the reasonable inference” that any individual person acted unlawfully
3 under the circumstances. See Iqbal, 556 U.S. at 678 (noting that while Plaintiff need not
4 plead “detailed factual allegations,” in order to state a plausible claim for relief, he must
5 provide “more than … unadorned, the-defendant-unlawfully-harmed-me accusations.”)
6 (citation omitted); see also Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009)
7 (discussing “integral participant” doctrine in context of Fourth Amendment excessive force
8 claims); Blankenhorn v. City of Orange, 485 F.3d 463, 481 n. 12 (9th Cir. 2007). While
9 some of Plaintiff’s claims are serious, his factual allegations, or lack thereof, are too vague
10 for the Court to find that he stated a claim against any specific individual.
11 Second, in order to state a Fourth Amendment claim of excessive force under 42
12 U.S.C. § 1983, Plaintiff must allege facts to plausibly show that each person acting “under
13 color of state law” violated his Fourth Amendment rights by using force which was
14 excessive given: “(1) the severity of the crime at issue, (2) [consideration of] whether the
15 [plaintiff] pose[d] an immediate threat to the safety of the officers or others, ... (3) whether
16 he [was] actively resisting arrest or attempting to evade arrest by flight,” and any other
17 “exigent circumstances [that] existed at the time of the arrest.” Chew v. Gates, 27 F.3d
18 1432, 1440-41 & n.5 (9th Cir. 1994) (citing Graham, 490 U.S. at 396); see also Brosseau
19 v. Haugen, 543 U.S. 194, 197 (2004). Here, the Court finds that Plaintiff’s Complaint lacks
20 sufficient specific factual allegations to support any elements of a Fourth Amendment
21 claim. Moreover, Plaintiff would need to make some effort to identify those whom he
22 claims were responsible for the alleged Fourth Amendment violations. Plaintiff does not
23 give any sort of factual allegation as to when these events allegedly took place. Plaintiff
24 also admits to running away from the individual who told him to “get down” and informed
25 Plaintiff that he had a warrant for his arrest.
26 While the Court will give Plaintiff leave to file an amended pleading, he must make
27 some effort to identify the individuals purportedly responsible for the constitutional
28 violations he alleges in his Complaint. He must also provide more specific factual
1 allegations with regard to the events that he raises in his Complaint.
2 D. Leave to Amend
3 In light of Plaintiff’s pro se status, the Court grants him leave to amend to attempt
4 to sufficiently allege a claim if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th
5 Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to amend
6 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the
7 deficiencies of the complaint could not be cured by amendment.’”), quoting Akhtar v.
8 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).
9 III. Conclusion and Orders
10 For the reasons explained, the Court:
11 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
12 (ECF No. 5).
13 2. DIRECTS the Watch Commander of the GBDF, or their designee, to collect
14 from Plaintiff’s inmate trust account the $350 filing fee owed in this case by garnishing
15 monthly payments in an amount equal to twenty percent (20%) of the preceding month’s
16 income and forwarding those payments to the Clerk of the Court each time the amount in
17 the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST
18 BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS
19 ACTION.
20 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch
21 Commander, George Bailey Detention Facility, 446 Alta Road, Suite 5300, San Diego,
22 California 92158-0002.
23 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which
24 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and
25 GRANTS him forty-five (45) days leave from the date of this Order in which to file an
26 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s
27 Amended Complaint must be complete by itself without reference to his original pleading.
28 Defendants not named and any claim not re-alleged in his Amended Complaint will be
1 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
2 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
3 || original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims
4 ||dismissed with leave to amend which are not re-alleged in an amended pleading may be
5 || “considered waived if not repled.”).
6 If Plaintiff fails to file an Amended Complaint within the time provided, the Court
7 || will enter a final Order dismissing this civil action based both on Plaintiffs failure to state
8 claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
9 || 1915A(b), and his failure to prosecute in compliance with a court order requiring
10 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does
11 take advantage of the opportunity to fix his complaint, a district court may convert the
12 || dismissal of the complaint into dismissal of the entire action.”).
13 5. The Clerk of Court is directed to mail Plaintiff a court approved civil rights
14 || complaint form for his use in amending.
15 IT IS SO ORDERED.
16 || Dated: May 3, 2022 €
17
Hon. Cathy Ann Bencivengo
18 United States District Judge
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