Shafihie v. San Diego Sheriff's Department

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6 UNITED STATES DISTRICT COURT

7 SOUTHERN DISTRICT OF CALIFORNIA

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9 ARASH SHAFIHIE, Case No.: 23-CV-1184 TWR (BLM)

CDCR #BU-5269,

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ORDER (1) GRANTING MOTION

Plaintiff,

11 TO PROCEED IN FORMA

v. PAUPERIS; (2) SCREENING

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COMPLAINT PURSUANT TO

SAN DIEGO SHERIFF’S

13 28 U.S.C. §§ 1915(e)(2) & 1915A;

DEPARTMENT; CITY OF SAN DIEGO;

(3) DISMISSING DEFENDANTS SAN

14 AUGUST MANSHEIM, Sheriff Deputy;

DIEGO SHERIFF’S DEPARTMENT

MIGUEL ESPINOZA, Sheriff Deputy;

15 AND CITY OF SAN DIEGO; AND

and RYAN HABERZETTLE, Sheriff

(4) GRANTING PLAINTIFF LEAVE

16 Deputy,

TO AMEND COMPLAINT

17 Defendants.

(ECF Nos. 1, 2)

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23 Presently before the Court is Plaintiff Arash Shafihie’s Complaint, (ECF No. 1,

24 “Compl.”), and Motion for Leave to Proceed In Forma Pauperis (“IFP”), (ECF No. 2, “IFP

25 Mot.”). Plaintiff is a pro se litigant who is currently housed at the California Health Care

26 Facility (“CHCF”) in Stockton, California. (See generally Compl.) Plaintiff’s Complaint,

27 filed pursuant to 42 U.S.C. § 1983, alleges that Diego County Sheriff’s Deputies

28 Mansheim, Espinoza, and Haberzettle utilized excessive force in violation of Plaintiff’s

1 constitutional rights while Plaintiff was held in custody at the George Bailey Detention

2 Facility (“GBDF”). (See id. at 3.) For the reasons set forth below, the Court GRANTS

3 Plaintiff’s Motion to Proceed IFP, DISMISSES IN PART the Complaint WITHOUT

4 PREJUDICE, and GRANTS Plaintiff forty-five (45) days leave to amend the Complaint

5 or file a Notice of Intent to Proceed with the remaining claims.

6 I. Motion to Proceed IFP Pursuant to 28 U.S.C. § 1915(a)

7 A. Legal Standard

8 Any party instituting a civil action, suit, or proceeding in a United States district

9 court, except an application for writ of habeas corpus, must pay a filing fee of $402.1 See

10 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the

11 entire fee only if they are granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a).

12 See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Still, the Prison Litigation

13 Reform Act (“PLRA”) requires prisoners who are granted leave to proceed IFP to pay the

14 entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016),

15 regardless of whether their action is ultimately dismissed, see 28 U.S.C. § 1915(b)(1)–(2);

16 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

17 Section 1915(a)(2) also requires individuals seeking leave to proceed IFP to file an

18 affidavit which includes a statement of assets and demonstrates an inability to pay. See

19 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). The affidavit must allege

20 poverty with some particularity and demonstrate that paying court costs will render the

21 plaintiff unable to afford the “necessities of life,” though it need not demonstrate that

22 plaintiff is destitute. Id. In support of this affidavit, the PLRA also requires prisoners to

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

24 . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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

27 $52. See 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

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1 § 1915(a)(2); see also Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). Utilizing

2 this certified trust account statement, the court then assesses an initial payment of 20% of

3 (a) the average monthly deposits in the account for the past six months or (b) the average

4 monthly balance in the account for the past six months, whichever is greater, unless the

5 prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution

6 having custody of the prisoner then collects all subsequent payments, assessed at 20% of

7 the preceding month’s income, in any month in which the balance in the account exceeds

8 $10, and forwards those payments to the court until the entire filing fee is paid. See 28

9 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 84‒85.

10 B. Plaintiff’s Motion to Proceed IFP

11 Upon filing his Complaint, Plaintiff did not pay the $402 civil and administrative

12 filing fees required by 28 U.S.C. § 1914(a) to commence a civil action. (See generally

13 Docket.) Instead, Plaintiff filed a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a).

14 (See generally IFP Mot.) In support of his IFP Motion, Plaintiff submitted a copy of his

15 California Department of Corrections and Rehabilitation Inmate Trust Account Statement

16 Report as well as a Prison Certificate completed by an accounting officer at CHCF. (See

17 id. at 6–8); see also 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2; Andrews, 398 F.3d at

18 1119. Plaintiff’s Trust Account Statement Report shows that he maintained an average

19 monthly balance of $124.68 and had average monthly deposits of $67.99 credited to his

20 account over the 6-month period immediately preceding the filing of this Complaint. (See

21 IFP Mot. at 4–6.) At the time Plaintiff filed his Complaint, his account balance was $0.18.

22 (See id. at 8.)

23 Based on the foregoing financial information, the Court concludes that paying court

24 costs would render Plaintiff unable to afford the necessities of life. Accordingly, the Court

25 GRANTS Plaintiff’s Motion to Proceed IFP, assesses an initial partial filing fee of $24.94

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1 pursuant to 28 U.S.C. § 1915(b)(1), and DIRECTS the Secretary of the California

2 Department of Corrections and Rehabilitation, or the designated agency having custody of

3 Plaintiff, to collect the remaining balance of the $350 total fee required by 28 U.S.C. §

4 1914 and forward it to the Clerk of the Court pursuant to the installment payment

5 provisions set forth in 28 U.S.C. § 1915(b)(2).

6 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A

7 A. Legal Standard

8 District courts must conduct a preliminary screening of all complaints filed by

9 plaintiffs granted leave to proceed IFP, see 28 U.S.C. § 1915(e)(2), and plaintiffs who are

10 prisoners seeking redress from a government entity, or officer or employee of a

11 governmental entity, see 28 U.S.C. § 1915A. Under these statutes, the Court must review

12 and sua sponte dismiss any complaint or portion thereof that is frivolous, malicious, fails

13 to state a claim, or seeks damages from defendants who are immune. See Williams v. King,

14 875 F.3d 500, 502 (9th Cir. 2017) (citing Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir.

15 2000) (en banc)) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002,

16 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is

17 ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of

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

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

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

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

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

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25 2 The initial partial filing fee need be collected only if sufficient funds are available in Plaintiff’s

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

26 a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for

the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.”);

27 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal

of a prisoner’s IFP action based solely on a “failure to pay . . . due to the lack of funds available to him

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1 1108, 1112 (9th Cir. 2012). The same standard applies for screening under § 1915A. See

2 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to

3 § 1915A “incorporates the familiar standard applied in the context of failure to state a claim

4 under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires that a complaint

5 “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible

6 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks

7 omitted); Wilhelm, 680 F.3d at 1121.

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

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

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

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

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

13 the defendant-unlawfully-harmed me accusation[s]” will not suffice. Id.; see also Moss v.

14 U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). And while the court “ha[s] an

15 obligation where the petitioner is pro se, particularly in a civil rights case, to construe the

16 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler,

17 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1

18 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially

19 pled,” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

20 B. Plaintiff’s 42 U.S.C. § 1983 Claims

21 Because Plaintiff is a prisoner who is proceeding IFP and seeking redress from

22 government entities and employees, his Complaint requires preliminary screening under

23 both 28 U.S.C. § 1915(e)(2) and § 1915A(b). Here, Plaintiff’s claims arise under 42 U.S.C.

24 § 1983. (See Compl. at 1.) “Section 1983 creates a private right of action against

25 individuals who, acting under color of state law, violate federal constitutional or statutory

26 rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not

27 itself a source of substantive rights, but merely provides a method for vindicating federal

28 rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal

1 quotation marks and citations omitted). “To establish § 1983 liability, a plaintiff must

2 show both (1) deprivation of a right secured by the Constitution and laws of the United

3 States, and (2) that the deprivation was committed by a person acting under color of state

4 law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012); see also West v.

5 Atkins, 487 U.S. 42, 48 (1988).

6 Here, Plaintiff alleges that his right to be free from cruel and unusual punishment

7 was violated through the use of excessive force. (See Compl. at 3.) Because Plaintiff

8 appears to have been a pretrial detainee at the time of the events at issue in this case, the

9 Court assumes, for purposes of initial screening only, that Plaintiff’s cruel and unusual

10 punishment claim arises under the Due Process Clause of the Fourteenth Amendment. See

11 Kingsley v. Hendrickson, 576 U.S. 389, 397‒98 (2015) (“[T]he Due Process Clause

12 protects a pretrial detainee from the use of excessive force that amounts to punishment.”

13 (quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989))). To state a claim for

14 excessive force under the Fourteenth Amendment, a Plaintiff must allege facts sufficient

15 to support a finding that the force used was “objectively unreasonable.” See id. at 397; see

16 also Hyde v. City of Willcox, 23 F.4th 863, 870 (9th Cir. 2022). As for Defendants

17 Mansheim, Espinoza, and Haberzettle, Plaintiff has alleged facts sufficient to support a

18 finding that the force used was objectively unreasonable; however, Plaintiff fails to state a

19 claim against the San Diego Sheriff’s Department and the City of San Diego.

20 1. Claims Against Mansheim, Espinoza, and Haberzettle

21 According to the Complaint, on June 27, 2022, Plaintiff complained “about the lack

22 of air flow in [his] module” due to a broken air conditioning unit at GBDF. (See Compl.

23 at 3.) In response, San Diego Sheriff’s Department Deputies Mansheim and Haberzettle

24 told Plaintiff that they would take him to the prison yard “for fresh air.” (Id.) Instead, they

25 escorted him to the “vestibule” and “told [him] to stand in the surveillance camera’s blind-

26 spot,” where he was “severely assaulted, beaten, and tazed [sic].” (Id.) Defendant

27 Espinoza allegedly arrived while this assault was taking place and “partook in the assault”

28 alongside Mansheim and Haberzettle. (Id.)

1 As a result of the Sheriff’s Deputies’ actions, Plaintiff suffered taser burns,

2 “concussions to the head, and body and lower back,” and a chipped tooth. (See id.)

3 Plaintiff therefore seeks injunctive relief, along with $1,000,000 in compensatory damages

4 and $4,000,000 in punitive damages. (See id. at 7.)

5 Because Plaintiff appears to have been a pretrial detainee at GBDF at the time the

6 Sheriff’s Deputies injured him, the Court finds that Plaintiff’s allegations are sufficient to

7 satisfy 42 U.S.C. § 1983’s “under color of state law” requirement. See Shah v. Cnty. of

8 Los Angeles, 797 F.2d 743, 746 (9th Cir. 1986) (pretrial detainee in county jail “need not

9 show that the deputies acted specifically within the scope of their authority to prove that

10 they acted under color of law.”). Moreover, taking the facts alleged in the Complaint as

11 true, the Court finds that Plaintiff’s excessive force claims against Defendants Mansheim,

12 Haberzettle, and Espinoza are sufficient to survive the “low threshold” for sua sponte

13 screening under 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123;

14 Iqbal, 556 U.S. at 678. Thus, as against Defendants Mansheim, Haberzettle, and Espinoza,

15 Plaintiff’s Complaint is “sufficient to warrant . . . an answer.” Wilhelm, 680 F.3d at 1123;

16 see also Iqbal, 556 U.S. at 678.

17 2. Claims Against San Diego Sheriff’s Department and City of San Diego

18 Although the San Diego Sheriff’s Department and City of San Diego may be sued

19 under 42 U.S.C. § 1983, see Duarte v. City of Stockton, 60 F.4th 566, 573 (9th Cir. 2023);

20 see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978), the Court finds that

21 Plaintiff has not adequately stated a claim for relief against them. “A government entity

22 may not be held liable under 42 U.S.C. § 1983, unless a policy, practice, or custom of the

23 entity can be shown to be a moving force behind a violation of constitutional rights.” See

24 Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell, 436 U.S. at

25 694). Accordingly, to state a claim against a government entity, a plaintiff must allege

26 that: (1) he was deprived of a constitutional right, (2) the defendant had a policy, custom,

27 or practice which amounted to deliberate indifference to that constitutional right; and

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1 (3) that policy, custom, or practice was the moving force behind the constitutional

2 violation. See id.

3 “[A] local government may not be sued under § 1983 for an injury inflicted solely

4 by its employees or agents. Instead, it is when execution of a government’s policy or

5 custom . . . inflicts the injury that the government as an entity is responsible under § 1983.”

6 Monell, 436 U.S. at 694. For instance, if an employee who violated a constitutional right

7 was “acting pursuant to an expressly adopted official policy, longstanding practice or

8 custom, or as a final policymaker,” the local government may be held liable under 42

9 U.S.C. § 1983. Thomas v. Cnty. of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014) (citing

10 Monell, 436 U.S. at 694). Alternatively, a government entity may be held liable if it fails

11 to adequately train staff and “the need for more or different training is so obvious, and the

12 inadequacy so likely to result in the violation of constitutional rights, that the policymakers

13 of the city can reasonably be said to have been deliberately indifferent to the need.”

14 Rodriguez v. City of Los Angeles, 891 F.3d 776, 802 (9th Cir. 2018) (quoting City of Canton

15 v. Harris, 489 U.S. 378, 390 (1989)).

16 Here, Plaintiff does not allege that Defendants Mansheim, Haberzettle, or Espinoza

17 were acting pursuant to the City or Sheriff’s Department’s policy, custom, or practice when

18 they committed the assault at issue. (See generally Compl.) Moreover, Plaintiff does not

19 allege that the assault occurred as a result of the City or Sheriff’s Department’s failure to

20 train their Deputies in the face of an obvious need. (See generally id.) Rather, Plaintiff

21 merely states that the Sheriff’s Department “allow[ed] employees the cover of law to break

22 and violate the law illegally” and that the City “fund[ed] the San Diego Sheriff’s

23 Department [and allowed] the cover of the law and authority to illegally violate [Plaintiff’s]

24 rights.” (See id. at 2.)

25 Although Plaintiff has sufficiently alleged that Sheriff’s Department employees

26 Mansheim, Haberzettle, and Espinoza violated his constitutional rights, “proof of a single

27 incident of unconstitutional activity,” or even a series of “isolated or sporadic incidents”

28 will not give rise to municipal liability under 42 U.S.C. § 1983. Grant v. County of Los

1 Angeles, 772 F.3d 608, 618 (9th Cir. 1996); see also Monell, 436 U.S. at 691 (finding that

2 a custom or unwritten policy of unconstitutional activity must be so “persistent and

3 widespread” that it constitutes a “permanent and well settled” practice). Rather, liability

4 “must be founded upon practices of sufficient duration, frequency and consistency [such]

5 that the conduct has become a traditional method of carrying out policy.” Trevino v. Gates,

6 99 F.3d 911, 918 (9th Cir. 1996) (citations omitted). Moreover, Plaintiff must do more

7 than simply identify the existence of an unconstitutional policy, custom, or practice and

8 the subject matter it addresses; he must identify the “specific nature” of the policy, custom,

9 or practice at issue. See Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012).

10 Because Plaintiff’s Complaint has failed to state a claim upon which relief may be

11 granted, the Court DISMISSES WITHOUT PREJUDICE the 42 U.S.C. § 1983 claims

12 against the City of San Diego and the San Diego Sheriff’s Department.

13 C. Leave to Amend

14 Although Plaintiff has failed to state a claim against the City of San Diego and the

15 San Diego Sheriff’s Department, the Court GRANTS Plaintiff leave to amend. See Rosati

16 v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro

17 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it

18 is absolutely clear that the deficiencies of the complaint could not be cured by

19 amendment.’” (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012))). If Plaintiff

20 wishes to proceed with his 42 U.S.C. § 1983 claims against the City and Sheriff’s

21 Department, he must set forth factual allegations which identify the “specific nature” of

22 the customs, policies, or practices used by these Defendants, see id., and he must plausibly

23 allege a “direct causal link between [the Defendants’] municipal policy or custom and the

24 alleged constitutional deprivation,” Collins v. Cnty. of Harker Heights, 503 U.S. 115, 123

25 (1992) (quoting City of Canton, 489 U.S. at 385).

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1 III. Conclusion

2 In light of the foregoing, the Court:

3 (1) GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 2);

4 (2) DIRECTS the Secretary of the California Department of Corrections and

5 Rehabilitation, or their designee, to collect from Plaintiff’s trust account the $24.94 initial

6 filing fee—if those funds are available at the time this Order is executed—and to forward

7 whatever balance remains of the full $350 owed in monthly payments in an amount equal

8 to twenty percent (20%) of the preceding month’s income to the Clerk of the Court each

9 time the amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). All

10 payments must be clearly identified with the name and number assigned to this action;

11 (3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail

12 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation,

13 P.O. Box 942883, Sacramento, California, 94283-0001, or in the alternative by forwarding

14 an electronic copy to trusthelpdesk@cdcr.ca.gov;

15 (4) DISMISSES WITHOUT PREJUDICE Plaintiff’s claims against the City

16 of San Diego and the San Diego Sheriff’s Department for failing to state a claim upon

17 which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1);

18 and

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

20 which to either: (1) file a Notice of Intent to Proceed with his claims as against Defendants

21 August Mansheim, Miguel Espinoza, and Ryan Haberzettle only; or (2) file an Amended

22 Complaint correcting the deficiencies identified by the Court in this Order. If Plaintiff fails

23 to file a Notice or Amended Complaint within the time provided, this action will proceed

24 as to Defendants Mansheim, Espinoza, and Haberzettle only.

25 If Plaintiff chooses to proceed with his claims against only Defendants August

26 Mansheim, Miguel Espinoza, and Ryan Haberzettle, the Court will issue an Order directing

27 the U.S. Marshal to effect service of the Complaint on those Defendants and will dismiss

28 Defendants City of San Diego and the San Diego Sheriff’s Department.

1 If Plaintiff chooses to file an Amended Complaint correcting the deficiencies

2 ||outlined in this Order, it must be complete in itself without reference to his original

3 ||Complaint. Any individuals or entities not named in the Amended Complaint will not be

4 ||considered Defendants and any claims not re-alleged in the Amended Complaint will be

5 considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner

6 Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes

7 || the original.”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting

8 || that claims dismissed with leave to amend which are not re-alleged in an amended pleading

9 ||may be “considered waived if not repled’’). If an Amended Complaint is filed, it must be

10 || titled “First Amended Complaint,” contain the Southern District of California’s Civil Case

11 || Number 23-CV-1184 TWR (BLM) in its caption, and comply with Federal Rule of Civil

12 || Procedure 8 and Southern District of California Civil Local Rule 8.2.a.

13 In order to help Plaintiff comply with these requirements should he choose to amend,

14 Court DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its

15 Complaint under the Civil Rights Act, 42 U.S.C. § 1983.

16 IT IS SO ORDERED.

17 || Dated: July 21, 2023 —_——

18 | (2 re

19 Honorable Todd W. Robinson

United States District Judge

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