“If a plaintiff does 2 ||not take 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.”
How later courts described this case
- “If a plaintiff does 2 ||not take 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.”
- noting that claims 23 dismissed with leave to amend which are not re-alleged in an amended pleading may be 24 “considered waived if not repled.”
- noting that screening pursuant to § 1915A “incorporates the familiar standard 8 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 9 12(b)(6)”
- discussing 28 U.S.C. § 1915A(b)
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 ARCHIE TYRELL ARMSTRONG, Case No.: 3:23-cv-1684-CAB-DDL
Inmate Booking No. 23705591,
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ORDER:
Plaintiff,
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vs. 1) GRANTING MOTION TO
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PROCEED IN FORMA PAUPERIS
15 [ECF No. 3]
UNKNOWN DEFENDANTS,
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Defendants. AND
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2) DISMISSING COMPLAINT FOR
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FAILING TO STATE A CLAIM
19 PURSUANT TO 28 U.S.C. § 1915(e)(2)
& 28 U.S.C. § 1915A(b)
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22 Archie Tyrell Armstrong (“Plaintiff”), currently housed at the George Bailey
23 Detention Facility (“GBDF”) located in San Diego, California and proceeding pro se, has
24 filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1).
25 Plaintiff has also filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28
26 U.S.C. § 1915(a) (ECF No. 3).
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 $402.1 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 v.
9 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 844,
11 847 (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 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 copy of his Inmate Statement.
24 See ECF No. 4; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119.
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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 $52 administrative fee does not apply to persons granted leave to proceed IFP.
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1 This statement shows that Plaintiff had an average monthly balance of $4.13 and an average
2 monthly deposit of $81.53 at the time of filing. (Id.) Based on this accounting, the Court
3 GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 3) and assesses his initial partial
4 filing fee to be $16.31 pursuant to 28 U.S.C. § 1915(b)(1).
5 The Court will direct the Watch Commander, or their designee, to collect an initial
6 partial filing fee only if sufficient funds are available in Plaintiff’s account at the time this
7 Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner
8 be prohibited from bringing a civil action or appealing a civil action or criminal judgment
9 for the reason that the prisoner has no assets and no means by which to pay the initial partial
10 filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. §
11 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based
12 solely on a “failure to pay ... due to the lack of funds available to him when payment is
13 ordered.”). The balance of the $350 total fee owed in this case must be collected by the
14 agency having custody of the prisoner and forwarded to the Clerk of the Court pursuant to
15 28 U.S.C. § 1915(b)(2).
16 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
17 A. Standard of Review
18 Because Plaintiff is a prisoner2 and is proceeding IFP, his Complaint also requires a
19 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
20 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it,
21 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who
22 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
23 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
24 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that
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27 2 Pursuant to 28 U.S.C. § 1915(h) the “term ‘prisoner’ means any person incarcerated or detained in any
facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of
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1 the targets of frivolous or malicious suits need not bear the expense of responding.’”
2 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).
3 “The standard for determining whether a plaintiff has failed to state a claim upon
4 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
5 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
6 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
7 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
8 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
9 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted
10 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
11 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
12 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
13 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
14 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief
15 [is] ... a context-specific task that requires the reviewing court to draw on its judicial
16 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,
17 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility
18 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
19 B. Plaintiff’s Factual Allegations
20 Plaintiff’s Complaint contains very few factual allegations. Plaintiff alleges he was
21 arrested on February 9, 2023. See Compl. at 1. Plaintiff has been charged with multiple
22 counts including kidnapping, residential burglary, and false imprisonment. See id.
23 Plaintiff is “asking all charges to be dismissed.” Id.
24 C. 42 U.S.C. § 1983
25 “Section 1983 creates a private right of action against individuals who, acting under
26 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,
27 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive
28 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”
1 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations
2 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right
3 secured by the Constitution and laws of the United States, and (2) that the deprivation was
4 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698
5 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 detention
8 and ongoing state criminal proceedings. To the extent that Plaintiff is currently in the
9 process of facing state criminal charges3 and requests that this Court intervene in the state
10 court’s decisions, the Court declines to do so. A federal court cannot interfere with ongoing
11 state criminal proceedings by granting injunctive relief absent a showing of the state’s bad
12 faith or harassment, or a showing that the statute challenged is “flagrantly and patently
13 violative of express constitutional prohibitions.” Younger v. Harris, 401 U.S. 37, 46, 53-
14 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; (3)
17 the state proceedings offer an adequate opportunity to litigate federal questions; and (4) the
18 federal court action would “enjoin the proceeding or have the practical effect of doing so,
19 i.e., would interfere with the state proceeding in a way that Younger disapproves.” San
20 Jose Silicon Valley Chamber of Commerce PAC v. City of San Jose, 546 F.3d 1087, 1092
21 (9th Cir. 2008). Here, because it appears that Plaintiff has ongoing criminal proceedings
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3 According to the San Diego County Sheriff’s Department’s website, Plaintiff faces pending charges
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for, among other things, Assault with Force in violation of California Penal Code Section 245(A)(4).
25 See
https://apps.sdsheriff.net/WIJ/wijDetail.aspx?BookNum=%2fthUd4PEzyDxHfk3J%2b0yBut0uahCqh38
26 XRrQLQf8nkI%3d (last accessed October 25, 2023). The Court may take judicial notice of public
records available on online inmate locators. See, e.g., Turner v. Cnty. of San Diego, No. 3:20-cv-00163-
27 JAH-AHG, 2020 WL 905633, at *1 n.1 (S.D. Cal. Feb. 25, 2020) (taking judicial notice of detainee’s
booking information available on San Diego Sheriff’s Department website).
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1 in state court, abstention as to Plaintiff’s claims pursuant to the Younger doctrine is
2 warranted.
3 E. Personal Causation
4 In addition, Plaintiff has not identified any specific Defendant in this matter. In
5 order to bring any claim pursuant to § 1983, Plaintiff must identify specific individuals
6 whom he claims violated his constitutional rights. “Because vicarious liability is
7 inapplicable to . . . § 1983 suits, a plaintiff must plead that each government-official
8 defendant, through the official’s own individual actions, has violated the Constitution.”
9 Iqbal, 556 U.S. at 676; see also Jones v. Community Redevelopment Agency of City of Los
10 Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiffs must “allege with at least
11 some degree of particularity overt acts which defendants engaged in” in order to state a
12 claim). “A plaintiff must allege facts, not simply conclusions, that show that [each
13 defendant] was personally involved in the deprivation of his civil rights.” Barren v.
14 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Estate of Brooks ex rel. Brooks
15 v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required
16 element of a § 1983 claim.”)
17 F. Leave to Amend
18 Accordingly, the Court finds Plaintiff’s Complaint fails to state a claim and
19 therefore, it is subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C.
20 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d
21 at 1004.
22 Because he is proceeding pro se, however, the Court having now provided him with
23 “notice of the deficiencies in his complaint,” will also grant Plaintiff an opportunity to
24 amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet,
25 963 F.2d 1258, 1261 (9th Cir. 1992)). If Plaintiff chooses to file an amended pleading, he
26 must allege more specific factual allegations regarding his claims.
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1 III. Conclusion and Order
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. 3).
5 2. DIRECTS the Watch Commander of the GBDF, or their designee, to collect
6 from Plaintiff’s inmate trust account the $350 filing fee owed in this case by garnishing
7 monthly payments in an amount equal to twenty percent (20%) of the preceding month’s
8 income and forwarding those payments to the Clerk of the Court each time the amount in
9 the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST
10 BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS
11 ACTION.
12 3. DIRECTS the Clerk of the Court to serve a copy of this Order on San Diego
13 Sheriff’s Department, 451 Riverview Parkway, Building C, Santee, California 92071.
14 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which
15 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and
16 GRANTS him forty-five (45) days leave from the date of this Order in which to file an
17 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s
18 Amended Complaint must be complete by itself without reference to his original pleading.
19 Defendants not named and any claim not re-alleged in his Amended Complaint will be
20 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
21 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
22 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims
23 dismissed with leave to amend which are not re-alleged in an amended pleading may be
24 “considered waived if not repled.”).
25 If Plaintiff fails to file an Amended Complaint within the time provided, the Court
26 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state
27 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
28 1915A(b), and his failure to prosecute in compliance with a court order requiring
1 ||amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does
2 ||not take 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 5. The Clerk of Court is directed to mail Plaintiff a court approved civil rights
5 ||complaint form for his use in amending.
6 IT IS SO ORDERED.
7 Dated: October 26, 2023 € ZL
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Hon. Cathy Ann Bencivengo
? United States District Judge
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