discussing “under color of state law” 24 pleading requirements
How later courts described this case
- discussing “under color of state law” 24 pleading requirements
- “If a plaintiff does not take advantage of 21 ||the opportunity to fix his complaint, a district court may convert the dismissal of the 22 complaint into dismissal of the entire action.”
- noting that claims 14 || dismissed with leave to amend which are not re-alleged in an amended pleading may be 15 || “considered waived if not repled.’
- noting that screening pursuant to § 1915A “incorporates the familiar standard 12 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 13 12(b)(6)”
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 TYRELL FERGUSON, Case No.: 3:23-cv-1128-GPC-KSC
CDCR #BS-9872,
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ORDER:
Plaintiff,
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vs. 1) GRANTING MOTION TO
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PROCEED IN FORMA PAUPERIS
BRANDON HITTLE; SYCUAN POLICE
15 [ECF No. 2]
DEP’T; SYCUAN HOTEL AND
16 CASINO; JOHN DOE 1,
AND
17 Defendants.
2) DISMISSING COMPLAINT FOR
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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 Tyrell Ferguson, while incarcerated at the California City Correctional
23 Facility (“CCCF”) in California City, California, and proceeding pro se, has filed a civil
24 rights Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (See ECF No. 1, “Compl.” at
25 1.) Ferguson claims Sycuan Police Officers1 conducted an illegal search of his person and
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1 The Court presumes Plaintiff means to refer to the Sycuan Band of the Kumeyaay Nation,
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1 arrested him while he was at the Sycuan Hotel and Casino. See generally Compl.
2 Ferguson has not prepaid the filing fee required by 28 U.S.C. § 1914(a) to commence
3 a civil action. Instead, he has filed a certified copy of his inmate trust account statement
4 which the Court liberally construes to be a Motion to Proceed In Forma Pauperis (“IFP”)
5 pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).
6 I. MOTION TO PROCEED IFP
7 All parties instituting any civil action, suit or proceeding in a district court of the
8 United States, except an application for writ of habeas corpus, must pay a filing fee of
9 $402.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
10 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
11 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
12 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The fee is not waived for prisoners, however.
13 If granted leave to proceed IFP, they nevertheless remain obligated to pay the entire fee in
14 “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v.
15 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their actions are
16 dismissed for other reasons. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281
17 F.3d 844, 847 (9th Cir. 2002).
18 To qualify, section 1915(a)(2) requires prisoners seeking leave to proceed IFP to
19 submit a “certified copy of the trust fund account statement (or institutional equivalent) for
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in an unincorporated area of San Diego County just east of El Cajon. The Sycuan band are
23 a Kumeyaay tribe, one of the four ethnic groups indigenous to San Diego County.” See
https://en.wikipedia.org/wiki/Sycuan_Band_of_the_ Kumeyaay_Nation (last visited June
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29, 2023). Sycuan Casino is a gaming casino owned by the Sycuan Tribe. See
25 https://www.500nations.com/casinos/caSycuan.asp (last visited June 29, 2023).
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2 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 . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
2 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
3 trust account statement, the Court assesses an initial payment of 20% of (a) the average
4 monthly deposits in the account for the past six months, or (b) the average monthly balance
5 in the account for the past six months, whichever is greater, unless the prisoner has no
6 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody
7 of the prisoner then collects subsequent payments, assessed at 20% of the preceding
8 month’s income, in any month in which his account exceeds $10, and forwards those
9 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce,
10 577 U.S. at 84.
11 In support of his IFP Motion, Ferguson has submitted a copy of his California
12 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report, as well
13 as a prison certificate authorized by a CCCF Accounting Officer. (ECF No. 2.) See 28
14 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These documents
15 show Ferguson had an average monthly balance of $21.23, and average monthly deposits
16 of $82.50 to his trust account during the six months prior to filing, but an available balance
17 of only $0.34 in his account at the time he filed suit. (ECF No. 2.) Therefore, the Court
18 GRANTS Ferguson’s Motion to Proceed IFP (ECF No. 2), and declines to assess any
19 initial filing fee because his trust account statements show he “has no means to pay it.”
20 Bruce, 577 U.S. 84–85. Instead, the Court DIRECTS the Secretary of the CDCR to collect
21 the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and to forward those
22 fees to the Clerk of the Court pursuant to the installment payment provisions set forth in
23 28 U.S.C. § 1915(b)(2). See id.
24 II. SCREENING
25 A. Standard of Review
26 Because Ferguson 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 found
1 frivolous, malicious, failing to state a claim, or seeking damages from defendants who are
2 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing
3 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)
4 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the
5 targets of frivolous or malicious suits need not bear the expense of responding.’”
6 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).
7 “The standard for determining whether a plaintiff has failed to state a claim upon
8 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
9 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
10 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
11 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
12 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
13 12(b)(6)”).
14 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain
15 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
16 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted);
17 Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare
18 recitals of the elements of a cause of action, supported by mere conclusory statements, do
19 not suffice.” Iqbal, 556 U.S. at 678. And while the court “ha[s] an obligation where the
20 petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and
21 to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7
22 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may
23 not “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents
24 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
25 B. Factual Allegations
26 Ferguson arrived at the Sycuan Hotel and Casino on September 22, 2019. Compl.
27 at 3. He alleges Defendant Sycuan Officer Brandon Hittle approached him and informed
28 him it was “illegal to smoke or bring marijuana on the reservation.” Id. Ferguson denied
1 that he possessed marijuana and informed Hittle that he had smoked marijuana before he
2 arrived at the hotel and casino. See id. Ferguson alleges Hittle grabbed his arm, placed
3 handcuffs on him, and conducted a search of his person and his backpack. See id. Hittle
4 found twenty-eight grams of methamphetamine and “book[ed] [Ferguson] in the county
5 jail” for possession of drugs. Id.
6 Ferguson seeks $150,000 in compensatory damages and $3,000,000 in punitive
7 damages. See id. at 8.
8 C. Discussion
9 “Section 1983 creates a private right of action against individuals who, acting under
10 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,
11 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff must show
12 both (1) deprivation of a right secured by the Constitution and laws of the United States,
13 and (2) that the deprivation was committed by a person acting under color of state law.”
14 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
15 First, Ferguson names the “Sycuan Police Department” and “Sycuan Hotel and
16 Casino” as Defendants. See Compl. at 1, 2. To the extent Ferguson seeks to hold the tribe
17 liable, the tribe is not subject to suit under § 1983. See Inyo Cty., Cal. v. Paiute-Shoshone
18 Indians of the Bishop Cmty. of the Bishop Colony, 538 U.S. 701, 708 (2003) (“Native
19 American tribes, like States of the Union, are not subject to suit under § 1983.”).
20 Ferguson also fails to allege whether Defendant Hittle acted under color of tribal or
21 state law when he was searched and arrested, or whether he seeks to hold any individual
22 liable for actions taken in either their personal or official capacities. See Marsh v. County
23 of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state law”
24 pleading requirements); Hafer v. Melo, 502 U.S. 21, 25 (1991) (noting that official-capacity
25 suits filed against state officials are merely an alternative way of pleading an action against
26 the State itself); Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“Personal-capacity suits
27 seek to impose liability upon a government official for actions [the official takes] under
28 color of state law.”). Sovereign immunity “protects tribal employees where a tribe’s
1 officials are sued in their official capacities” because such a suit would in effect be against
2 the tribe. See Pistor v. Garcia, 791 F.3d 1104, 1110 (9th Cir. 2015) (citing Maxwell v.
3 Cnty. of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2015)). Thus, absent a waiver of
4 sovereign immunity, Ferguson also cannot sue Sycuan or any of its police officers based
5 on acts taken within the scope of their delegated tribal authority in federal court. See
6 Kennerly v. United States, 721 F.2d 1252, 1258–59 (9th Cir. 1983) (holding that, because
7 “there has been no express waiver [of sovereign immunity] or consent to suit, nor any
8 congressional authorization for such a suit against the Tribe, [the federal courts] are without
9 jurisdiction”); Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 479–80 (9th Cir.
10 1985).
11 Thus, the Court concludes Ferguson’s Complaint must be dismissed sua sponte for
12 failing to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C.
13 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). However, because Ferguson is proceeding pro se,
14 the Court will grant him an opportunity to amend now that he has been provided “notice
15 of the deficiencies in his complaint.” See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.
16 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).
17 III. CONCLUSION AND ORDER
18 Accordingly, the Court:
19 1. GRANTS Ferguson’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
20 (ECF No. 2).
21 2. DIRECTS the Secretary of the CDCR, or their designee, to collect from
22 Ferguson’s trust account the $350 filing fee owed in this case by garnishing monthly
23 payments in an amount equal to twenty percent (20%) of the preceding month’s income
24 and forwarding those payments to the Clerk of the Court each time the amount in the
25 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE
26 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS
27 ACTION.
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1 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff
2 || Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by
3 ||U.S. Mail, or by forwarding an electronic copy to trusthelpdesk @cdcr.ca.gov.
4 4. DISMISSES Ferguson’s Complaint sua sponte and in its entirety based on
5 ||his failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
6 1915(e)(2)(B) and 1915A(b)(1).
7 5. GRANTS Ferguson 45 days leave from the date of this Order in which to file
8 ||an Amended Complaint which cures the deficiencies of pleading noted. Ferguson’s
9 || Amended Complaint must be complete by itself without reference to his original pleading.
10 ||Defendants not named and any claim not re-alleged in his Amended Complaint will be
11 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
12 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
13 || original.”’); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims
14 || dismissed with leave to amend which are not re-alleged in an amended pleading may be
15 || “considered waived if not repled.’).
16 If Ferguson fails to file an Amended Complaint within 45 days, the Court will enter
17 final Order dismissing this civil action based both on his failure to state a claim upon
18 || which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) and his
19 || failure to prosecute in compliance with a court order requiring amendment. See Lira v.
20 || Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of
21 ||the opportunity to fix his complaint, a district court may convert the dismissal of the
22 complaint into dismissal of the entire action.”).
23 IT IS SO ORDERED.
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5 Dated: June 30, 2023 2 aaho Ox
26 Hon. Gonzalo P. Curiel
4 United States District Judge
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