Cowan v. San Diego Sheriff's Department

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 RICHARD L. COWAN, II, Case No.: 3:22-cv-0914-DMS-WVG

Booking #21135745,

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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 SHERIFF’S DEP’T;

15 [ECF No. 2]

GALLAGOS, Counselor,

16 Defendants. AND

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(2) DISMISSING CIVIL ACTION

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FOR FAILING TO STATE A CLAIM

19 PURSUANT TO 28 U.S.C. § 1915(e)(2)

AND 28 U.S.C. § 1915A(b)

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22 Plaintiff Richard L. Cowan, II, currently detained at the South Bay Detention

23 Facility (“SBDF”) located in Chula Vista, California, is proceeding pro se in this civil

24 rights action filed pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1 at 1. In his

25 Complaint, Plaintiff alleges that he is being subjected to racial segregation while housed

26 at SBDF and has been denied access to the law library. See id. at 3-4. In addition,

27 Plaintiff has filed a Motion to Proceed In Forma Pauperis (“IFP”). See 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 failure to prepay the

5 entire fee only if the plaintiff 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). Prisoners granted leave to proceed IFP

8 remain obligated to pay the entire fee in “increments” or “installments,” Bruce v.

9 Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir.

10 2015), and regardless of outcome. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore,

11 281 F.3d 844, 847 (9th Cir. 2002).

12 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment

13 of fees to submit an affidavit that includes a statement of all assets possessed and

14 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th

15 Cir. 2015). In support of this affidavit, § 1915(a)(2) requires that all prisoners as defined

16 by 28 U.S.C. § 1915(h) who “seek[] to bring a civil action ... without prepayment of fees

17 ... shall submit a certified copy of the trust fund account statement (or institutional

18 equivalent) ... for the 6-month period immediately preceding the filing of the complaint.”

19 28 U.S.C. § 1915(a)(2) (emphasis added); Andrews v. King, 398 F.3d 1113, 1119 (9th

20 Cir. 2005).

21 From the certified trust account statement, the Court must assess an initial payment

22 of 20% of (a) the average monthly deposits in the account for the past six months, or (b)

23 the average monthly balance in the account for the past six months, whichever is greater,

24 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4).

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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. 2020). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP.

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1 The institution having custody of the prisoner then must collect subsequent payments,

2 assessed at 20% of the preceding month’s income, in any month in which his account

3 exceeds $10, and forwards those payments to the Court until the entire filing fee is paid.

4 See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 85‒86.

5 In support of his IFP Motion, Plaintiff has submitted a prison certificate certified

6 by a San Diego County Sheriff’s Department Detentions Facility Commander. See ECF

7 No. 2 at 5; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119.

8 These statements show Plaintiff average monthly deposits of $151.67, and carried an

9 average balance of $77.42 in his account over the preceding six-months. See ECF No. 2

10 at 5.

11 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and

12 assesses his initial partial filing fee to be $30.37 pursuant to 28 U.S.C. § 1915(b)(1).

13 However, the Court will direct the Watch Commander at SBDF, or their designee, to

14 collect this initial filing fee only if sufficient funds are available in Plaintiff’s account at

15 the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event

16 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or

17 criminal judgment for the reason that the prisoner has no assets and no means by which to

18 pay the initial partial filing fee.”); Bruce, 577 U.S. at 86; Taylor, 281 F.3d at 850 (finding

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

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

21 when payment is ordered.”). The remaining balance of the $350 total fee owed in this

22 case must be collected by whichever agency has custody of the prisoner and forwarded to

23 the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).

24 II. Screening pursuant to 28 U.S.C. § 1915(e)(2) & 1915A

25 A. Standard of Review

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

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

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

1 thereof, if it is frivolous, malicious, fails to state a claim, or seeks damages from

2 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 2000)

3 (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004

4 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to

5 ensure that the targets of frivolous or malicious suits need not bear the expense of

6 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation

7 omitted).

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

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

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

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

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

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

14 12(b)(6)”).

15 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain

16 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

17 face.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted); Wilhelm, 680 F.3d at

18 1121. And while the court “ha[s] an obligation where the petitioner is pro se, particularly

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

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

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

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

23 Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

24 B. Plaintiff’s Allegations

25 Plaintiff’s factual allegations are sparse. He alleges that he has “experienced racial

26 segregation in my cell housing” at SBDF. Compl. at 3. Plaintiff claims that he has only

27 been housed with African Americans which has “created a sense of inferiority and

28 anxiety.” Id. Plaintiff also contends that he has been subjected to racial segregation when

1 he was previously housed at the George Bailey Detention Facility (“GBDF”) from

2 January 1, 2022 to February 25, 2022. See id.

3 He further claims that Counselor Gallagos has denied him access to SBDF’s law

4 library and as a result, Plaintiff has “no meaningful access to courts.” Id. at 4. Plaintiff

5 may only submit a “handwritten inmate legal research request form” once a month which

6 he claims is insufficient. Id.

7 Plaintiff seeks unspecified injunctive relief, $500,000 in compensatory damages,

8 $500,000 in punitive damages, and $500,000 in “mental anguish damages.” Id. at 7.

9 C. 42 U.S.C. § 1983

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

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

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

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

14 1035-36 (9th Cir. 2015); see also Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir.

15 1985) (en banc) (noting the Court reaches the issue of defendants’ § 1983 liability only if

16 defendants acted under color of state law, and the conduct deprived plaintiff of a

17 constitutional right).

18 D. Racial Segregation

19 Plaintiff alleges that his Fourteenth Amendment right to freedom of association

20 was violated because he was housed with African American detainees. See Compl. at 3.

21 “Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment

22 from invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539, 556

23 (1974). Race-based policies in prisons must be narrowly tailored to serve a compelling

24 state interest. Johnson v. California, 543 U.S. 499, 510-11 (2005).

25 Plaintiff alleges that the San Diego Sheriff’s Department has “consistently

26 implemented racial bias with prejudice in regard to housing inmates.” Compl. at 2. The

27 Court will liberally construe the Complaint as attempting to state a claim against the

28 County of San Diego rather than the San Diego County Sheriff’s Department. See

1 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (holding that when a plaintiff appears pro se,

2 the court must construe the pleadings liberally and afford plaintiff any benefit of the

3 doubt with respect to what claims are raised); Ferdik v. Bonzelet, 963 F.2d 1258, 1261

4 (9th Cir. 1992) (noting that the rule of liberal construction is “particularly important” in

5 civil rights cases). In order to state a claim against the County of San Diego, Plaintiff

6 must allege that: (1) he was deprived of a constitutional right, (2) the County has a policy,

7 custom or practice which amounted to deliberate indifference to that constitutional right;

8 and (3) the policy, custom or practice was the moving force behind the constitutional

9 violation. Dougherty v. City of Covina, 654 F.3d 892, 900-01 (9th Cir. 2011), citing

10 Monell v. Department of Social Services, 436 U.S. 658, 694 (1978).

11 As currently pleaded, Plaintiff’s Complaint fails to state a claim under 28 U.S.C.

12 §§ 1915(e)(2) and 1915A(b) for municipal liability arising from an unspecified policy of

13 segregating prisoners at the SBDF. Plaintiff fails to identify the specific policy and

14 instead he alleges that this segregation was a “behavior” by staff rather than claiming

15 that there was a specific policy promulgated by the County of San Diego involving the

16 racial segregation of detainees. Compl. at 3; (Board of County Com’rs of Bryan County,

17 Okl. v. Brown, 520 U.S. 397, 404 (1997) (“[I]t is not enough for a § 1983 plaintiff merely

18 to identify conduct properly attributable to the municipality . . . [t]he plaintiff must also

19 demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’

20 behind the injury alleged. That is, a plaintiff must show that the municipal action was

21 taken with the requisite degree of culpability and must demonstrate a causal link between

22 the municipal action and the deprivation of federal rights.”)). There is simply no

23 plausible allegation that this purported racial segregation was the result of a policy,

24 custom, or practice attributable to the County of San Diego.

25 Therefore, Plaintiff’s Fourteenth Amendment rights are dismissed for failing to

26 state a claim upon which relief may be granted.

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1 E. Access to Courts

2 Plaintiff also alleges that Defendant Gallagos “refused his right to physical law

3 library access.” Compl. at 2. Prisoners have a constitutional right of access to the courts.

4 Lewis v. Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977),

5 limited in part on other grounds by Lewis, 518 U.S. at 354. In order to state a claim of a

6 denial of the right to access the courts, a prisoner must establish that he has suffered

7 “actual injury,” a jurisdictional requirement derived from the standing doctrine. Lewis,

8 518 U.S. at 349. An “actual injury” is “actual prejudice with respect to contemplated or

9 existing litigation, such as the inability to meet a filing deadline or to present a claim.” Id.

10 at 348 (citation and internal quotations omitted). The right of access does not require the

11 State to “enable the prisoner to discover grievances,” or even to “litigate effectively once

12 in court.” Id. at 354; see also Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining

13 actual injury as the “inability to file a complaint or defend against a charge”). Instead,

14 Lewis holds

15 [T]he injury requirement is not satisfied by just any type of frustrated

legal claim . . .. Bounds does not guarantee inmates the wherewithal to

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transform themselves into litigating engines capable of filing everything

17 from shareholder derivative actions to slip-and-fall claims. The tools it

requires to be provided are those that the inmates need in order to attack

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their sentences, directly or collaterally, and in order to challenge the

19 conditions of their confinement. Impairment of any other litigating capacity

is simply one of the incidental (and perfectly constitutional) consequences of

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conviction and incarceration.

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22 Id. at 346; see also Spence v. Beard, No. 2:16-CV-1828 KJN P, 2017 WL 896293, at *2-

23 3 (E.D. Cal. Mar. 6, 2017). Indeed, the failure to allege an actual injury is “fatal.” Alvarez

24 v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (stating that “[f]ailure to show that a

25 ‘non-frivolous legal claim had been frustrated’ is fatal.”) (quoting Lewis, 518 U.S. at 353

26 & n.4).

27 In addition to alleging an “actual injury,” Plaintiff must also plead facts sufficient

28 to describe the “non-frivolous” or “arguable” nature of underlying claim he contends was

1 lost as result of Defendants’ actions. Christopher v. Harbury, 536 U.S. 403, 413-14

2 (2002). The nature and description of the underlying claim must be set forth in the

3 pleading “as if it were being independently pursued.” Id. at 417.

4 Plaintiff’s Complaint has failed to allege the actual injury required to state an

5 access to courts claim. See Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. While

6 Plaintiff does allege that he has not been able to physically attend the law library, he has

7 not provided the Court with the “nature and description” of the claims he brought in an

8 action, nor the “non-frivolous” or “arguable” nature of those claims. Harbury, 536 U.S. at

9 413-14. Thus, the Court finds that Plaintiff’s Complaint fails to include sufficient “factual

10 matter” to show how or why any of the individual Defendants in this case caused him to

11 suffer any “actual prejudice” “such as the inability to meet a filing deadline or to present

12 a claim,” with respect to any case. Lewis, 518 U.S. at 348; Jones, 393 F.3d at 936; Iqbal,

13 556 U.S. at 678. Because Plaintiff has failed to allege facts sufficient to show that

14 Defendants caused him to suffer any “actual injury” with respect to any non-frivolous

15 direct criminal appeal, habeas petition, or civil rights action he may have filed, see Lewis,

16 518 U.S. at 354, the Court finds Plaintiff’s access to courts claims must be dismissed for

17 failing to state a plausible claim upon which § 1983 relief can be granted.

18 F. Leave to Amend

19 In light of Plaintiff’s pro se status, the Court grants him leave to amend his

20 pleading to attempt to sufficiently allege a § 1983 claim if he can and if he wishes to

21 attempt to do so. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district

22 court should not dismiss a pro se complaint without leave to amend [pursuant to 28

23 U.S.C. § 1915(e)(2)] unless ‘it is absolutely clear that the deficiencies of the complaint

24 could not be cured by amendment.’”), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th

25 Cir. 2012).

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1 III. Conclusion and Orders

2 For the reasons explained, the Court:

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

4 (ECF No. 2).

5 2. DIRECTS the Watch Commander of SBDF, or their designee, and any

6 subsequent “agency having custody” of Plaintiff to collect from his trust account the

7 $30.37 initial partial filing fee assessed by the Order, and to garnish the remainder of the

8 $350 filing fee owed in this case in monthly payments from his account in an amount

9 equal to twenty percent (20%) of the preceding month’s income and forwarding those

10 payments to the Clerk of the Court each time the amount in the account exceeds $ 10

11 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY

12 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

13 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch

14 Commander, South Bay Detention Facility, 500 Third Avenue, Chula Vista, California

15 91910.

16 4. DISMISSES this civil action based on Plaintiff’s failure to state a claim

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

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

19 which to file a First Amended Complaint which cures the deficiencies of pleading noted

20 in this Order with respect to any or all other Defendants. Plaintiff’s First Amended

21 Complaint must be complete by itself without reference to his original Complaint.

22 Defendants not named and any claims not re-alleged in the First 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 County, 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.”) If Plaintiff fails to amend,

28 the Court will dismiss this action for failure to state a claim and failure to prosecute. See

1 || Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take

2 ||advantage of the opportunity to fix his complaint, a district court may convert the

3 || dismissal of the complaint into dismissal of the entire action.”)

4 6. DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of

5 ||its form complaint under the Civil Rights Act, 42 U.S.C. § 1983 for use in amending.

6 IT IS SO ORDERED.

7 Dated: July 21, 2022

g yn yn. L4\

Hon. Dana M. Sabraw

9 United States District Judge

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