Opinion

Brown v. Gore

Court
District Court, S.D. California
Filed
May 3, 2022
Cited by
0 cases
Authority
More cited than 19.2%

‘If a plaintiff 12 || does not take advantage of the opportunity to fix his complaint, a district court may 13 convert the dismissal of the complaint into dismissal of the entire action.”

How later courts described this case

  • ‘If a plaintiff 12 || does not take advantage of the opportunity to fix his complaint, a district court may 13 convert the dismissal of the complaint into dismissal of the entire action.”
  • noting that screening pursuant to § 1915A “incorporates the familiar standard 6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 7 12(b)(6)”
  • discussing 28 U.S.C. § 1915A(b)
  • even pro se plaintiff must “allege with at 10 least me degree of particularity overt acts which defendants engaged in” in order to state 11 a claim

Written by the judges who cited it.

The opinion

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 DOUGLAS WAYNE BROWN, Case No.: 22-cv-00348-MMA (WVG)

Inmate Booking No. 21148122,

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ORDER GRANTING MOTION TO

Plaintiff,

13 PROCEED IN FORMA PAUPERIS

vs. AND DISMISSING COMPLAINT

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FOR FAILURE TO STATE A CLAIM

15 PURSUANT TO 28 U.S.C. § 1915(e)(2)

WILLIAM D. GORE, San Diego County & 28 U.S.C. § 1915A(b)

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Sheriff,

17 Defendants. [Doc. No. 4]

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20 Douglas Wayne Brown (“Plaintiff”), currently housed at the South Bay Detention

21 Facility (“SBDF”) located in Chula Vista in San Diego, California and proceeding pro se,

22 has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1

23 (“Compl.”). In addition, Plaintiff filed additional pages, which appear to be part of his

24 Complaint and as such the Court will consider them in conducting the required sua

25 sponte screening. See Doc. No. 5. Plaintiff has also filed a Motion to Proceed In Forma

26 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). Doc. No. 4. For the following

27 reasons, the Court GRANTS Plaintiff’s Motion to Proceed IFP and DISMISSES his

28 Complaint.

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, 577 U.S. 82, 84 (2016); Williams

9 v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their action is

10 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d

11 844, 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

20 having 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.

23 § 1915(b)(2); Bruce, 136 S. Ct. at 629.

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50.

27 See 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

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1 In support of his IFP Motion, Plaintiff has submitted a copy of his Inmate

2 Statement. See Doc. No. 5; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398

3 F.3d at 1119. These statements show that Plaintiff had a $1.12 balance at the time of

4 filing. See Doc. No. 5. Based on this accounting, the Court GRANTS Plaintiff’s Motion

5 to Proceed IFP and assesses his initial partial filing fee to be $16.00 pursuant to 28 U.S.C.

6 § 1915(b)(1).

7 The Court will direct the Watch Commander, or their designee, to collect an initial

8 partial filing fee only if sufficient funds are available in Plaintiff’s account at the time this

9 Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a

10 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal

11 judgment for the reason that the prisoner has no assets and no means by which to pay the

12 initial partial filing fee”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that

13 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP

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

15 payment is ordered”). The balance of the $350 total fee owed in this case must be

16 collected by the agency having custody of the prisoner and forwarded to the Clerk of the

17 Court pursuant to 28 U.S.C. § 1915(b)(2).

18 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b)

19 A. Standard of Review

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

21 pre-answer 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

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

24 who 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) (citation omitted).

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

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

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

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

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

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

7 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter,

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

9 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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

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

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

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

14 judicial experience and common sense.” Id. The “mere possibility of misconduct” or

15 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

16 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

17 (9th Cir. 2009).

18 B. Plaintiff’s Factual Allegations

19 Plaintiff alleges that he was “arrested [on] December 8, 2021” and he has not

20 received his “heart meds.” Compl. at 2. Plaintiff also claims to be “allergic” to the

21 Covid-19 vaccine. Id. In addition, he claims he has been denied the right to a “fast and

22 speedy trial” and his counsel will “not investigate case until April 1, 2022.” Doc. No. 5

23 at 1–2.

24 C. 42 U.S.C. § 1983

25 “Section 1983 creates a private right of action against individuals who, acting

26 under color of state law, violate federal constitutional or statutory rights.” Devereaux

27 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of

28 substantive rights, but merely provides a method for vindicating federal rights elsewhere

1 conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks

2 and citations omitted). “To establish § 1983 liability, a plaintiff must show both

3 (1) deprivation of a right secured by the Constitution and laws of the United States, and

4 (2) that the deprivation was committed by a person acting under color of state law.” Tsao

5 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

6 D. Younger Abstention

7 As an initial matter, Plaintiff appears to challenge the basis for his current

8 detention and ongoing state criminal proceedings. To the extent that Plaintiff is currently

9 in the process of facing state criminal charges and requests that this Court intervene in the

10 state court’s decisions, the Court declines to do so. A federal court cannot interfere with

11 ongoing state criminal proceedings by granting injunctive relief absent a showing of the

12 state’s bad faith or harassment, or a showing that the statute challenged is “flagrantly and

13 patently violative of express constitutional prohibitions.” Younger v. Harris, 401 U.S.

14 37, 46, 53–54 (1971).

15 Younger abstention is appropriate if four criteria are met: (1) state judicial

16 proceedings are ongoing; (2) the state proceedings implicate an important state interest;

17 (3) the state proceedings offer an adequate opportunity to litigate federal questions; and

18 (4) the federal court action would “enjoin the proceeding or have the practical effect of

19 doing so, i.e., would interfere with the state proceeding in a way that Younger

20 disapproves.” San Jose Silicon Valley Chamber of Commerce PAC v. City of San Jose,

21 546 F.3d 1087, 1092 (9th Cir. 2008). Here, because it appears that Plaintiff has ongoing

22 criminal proceedings in state court, abstention as to Plaintiff’s claims pursuant to the

23 Younger doctrine is warranted.

24 E. Medical Claims

25 Plaintiff also alleges that he been denied his medication that he takes for an

26 unspecified heart condition. While this is a serious concern, based on Plaintiff’s lack of

27 factual allegations and failure to identify specific individuals whom he claims is

28 responsible for the purported failure to receive his medication, the Court finds that he

1 fails to state a claim upon which relief may be granted. Plaintiff does not name any

2 individual as responsible for alleged constitutional violations with the exception of

3 Sheriff William Gore. See Compl. at 1.

4 However, there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer

5 v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). “Because vicarious liability is

6 inapplicable to . . . § 1983 suits, [Plaintiff] must plead that each government-official

7 defendant, through the official’s own individual actions, has violated the Constitution.”

8 Iqbal, 556 at 676; see also Jones v. Community Redevelopment Agency of City of Los

9 Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at

10 least me degree of particularity overt acts which defendants engaged in” in order to state

11 a claim). “A plaintiff must allege facts, not simply conclusions, t[o] show that [each

12 defendant] was personally involved in the deprivation of his civil rights.” Barren

13 v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Estate of Brooks ex rel.

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

15 required element of a § 1983 claim.”).

16 As currently pleaded, Plaintiff’s Complaint offers no factual detail from which the

17 Court might reasonably infer a plausible inadequate medical care claim as to Defendant

18 Gore. Instead, Plaintiff only lists “San Diego County Sheriff William D. Gore” as the

19 sole Defendant. Compl. at 1. But Fed. R. Civ. P. 8 “demands more than an unadorned,

20 the-defendant-unlawfully-harmed-me accusation,” and in order “[t]o survive a motion to

21 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a

22 claim for relief that is plausible on its face.’” Iqbal, 662 U.S. at 678 (quoting Twombly,

23 550 U.S. at 555, 570).

24 Moreover, supervisory officials may only be held liable under § 1983 if Plaintiff

25 alleges their “personal involvement in the constitutional deprivation, or . . . a sufficient

26 causal connection between the supervisor’s wrongful conduct and the constitutional

27 violation.” Keates v. Koile, 883 F.3d 1228, 1242–43 (9th Cir. 2018); Starr v. Baca, 652

28 F.3d 1202, 1207 (9th Cir. 2011). P laintiff makes no such allegations in his Complaint.

1 Therefore, the Court DIMISSES Defendant Gore sua sponte based on Plaintiff’s failure

2 to state a claim against him. See 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1).

3 F. Leave to Amend

4 Accordingly, the Court finds Plaintiff’s Complaint, together with the additional

5 pages he filed, fails to state a claim against any named Defendant, and therefore, it is

6 subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)

7 and § 1915A(b)(1). See Lopez, 203 F.3d at 1126–27; Rhodes, 621 F.3d at 1004.

8 Because he is proceeding pro se, however, the Court having now provided him

9 with “notice of the deficiencies in his complaint,” will also grant Plaintiff an opportunity

10 to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik

11 v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). If Plaintiff chooses to file an amended

12 pleading, he must allege more specific factual allegations regarding his claims.

13 III. CONCLUSION

14 For the reasons explained, the Court GRANTS Plaintiff’s Motion to Proceed IFP

15 pursuant to 28 U.S.C. § 1915(a) and DIRECTS the Watch Commander of the SBDF, or

16 their designee, to collect from Plaintiff’s inmate trust account the $350 filing fee owed in

17 this case by garnishing monthly payments in an amount equal to twenty percent (20%) of

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

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

20 ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND

21 NUMBER ASSIGNED TO THIS ACTION. The Court DIRECTS the Clerk of the

22 Court to serve a copy of this Order on Watch Commander, South Bay Detention Facility,

23 500 Third Avenue, Chula Vista, California 91910.

24 The Court further DISMISSES Plaintiff’s Complaint for failure to state a claim

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

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

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

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

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

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

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

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

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

6 |}amended pleading may be “considered waived if not repled.”’).

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

8 || will enter a final Order dismissing this civil action based both on Plaintiff's failure to

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

10 1915A(b), and his failure to prosecute in compliance with a court order requiring

11 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (‘If a plaintiff

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

13 convert the dismissal of the complaint into dismissal of the entire action.”). The Court

14 || DIRECTS the Clerk of Court to mail Plaintiff a court approved civil rights complaint

15 || form for his use in amending.

16 IT IS SO ORDERED.

17 || Dated: May 3, 2022

18 [lhe □□ (hihler

19 HON. MICHAEL M. ANELLO

0 United States District Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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