Harper v. George Bailey Detention Facility

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 JACOBY C. HARPER Case No.: 3:20-cv-02409-CAB-LL #19746599, [12] ORDER: Plaintiffs, [13] vs. 1) GRANTING MOTION TO [14] PROCEED IN FORMA PAUPERIS 15 PURSUANT TO 28 U.S.C. § 1915 (a) GEORGE BAILEY DETENTION [ECF No. 2] [16] FACILITY, 17 Defendants. 2) DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM [18] PURSUANT TO 28 U.S.C. 19 § 1915(e)(2)(B) AND 28 U.S.C. § 1915A(b) [21] 22 Plaintiff Jacoby C. Harper (“Harper” or “Plaintiff”), currently incarcerated at George 23 Bailey Detention Facility (“GBDF”), has filed a pro se civil rights action pursuant 42 24 U.S.C. § 1983 . See ECF No. 1. Harper did not prepay the $400 civil filing fee required by [25] 28 U.S.C. § 1914 (a) at the time of filing, but did file a Motion to Proceed In Forma Pauperis 26 (“IFP”) pursuant to 28 U.S.C. § 1915 (a). See ECF No. 2. 27 / / / 28 / / / 1 I. Motion to Proceed In Forma Pauperis 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); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 9 Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182 , 1185 10 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 11 § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) 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 balance 18 in the account for the past six months, whichever is greater, unless the prisoner has no 19 assets. See 28 U.S.C. § 1915 (b)(1); 28 U.S.C. § 1915 (b)(4). The institution having custody 20 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 21 month’s income, in any month in which his account exceeds $10, and forwards those 22 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915 (b)(2); Bruce, [23] 136 S. Ct. at 629 . [25] 26 1 A civil litigant bringing suit must pay the $350 statutory fee in addition to a $52 27 administrative fee. See 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The $52 administrative fee does not [28] 1 In support of his IFP Motion, Harper has submitted a certified copy of his trust 2 account statement pursuant to 28 U.S.C. § 1915 (a)(2) and S.D. Cal. Civ. L.R. 3.2. 3 Andrews, 398 F.3d at 1119 . The Court has reviewed Harper’s trust account activity which 4 shows an available balance of $0.74 at the time of filing. See ECF No. 2 at 4. Therefore, 5 the Court GRANTS Harper’s IFP (ECF No. 2) and does not assesses an initial partial filing 6 fee pursuant to 28 U.S.C. § 1915 (b)(1) because Harper does not have sufficient funds. The 7 Court directs the Watch Commander, or their designee, to collect the $350.00 balance of 8 the filing fees required by 28 U.S.C. § 1914 and to forward it to the Clerk of the Court 9 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915 (b)(1). 10 II. Sua Sponte Screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A(b) 11 A. Standard of Review 12 Because Harper is a prisoner and is proceeding IFP, his Complaint requires a pre13 answer screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A(b). Under these statutes, 14 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 15 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 16 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing [17] 28 U.S.C. § 1915 (e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 18 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 19 targets of frivolous or malicious suits need not bear the expense of responding.’” 20 Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 21 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 22 “The standard for determining whether a plaintiff has failed to state a claim upon 23 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule 24 of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 25 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 26 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 27 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 28 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 1 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 2 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121 . 3 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 4 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 5 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for relief 6 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 7 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 8 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 9 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 10 B. Harper’s Factual Allegations 11 Harper alleges that August 18, 2020, officers at GBDF improperly allowed about 12 twenty Hispanic inmates into the dorm area where Harper and other African-American 13 inmates were located. Compl. at 3. The Hispanic inmates beat and assaulted the African14 American inmates and were “kicking, punching, spitting and yelling racial slurs” at Harper 15 and other inmates. Id. Harper claims that after this incident, individuals who had been 16 disciplined for the assaults were placed back in the pods where the victims of the assaults 17 were located on at least three occasions. Id. at 4. Specifically, on December 5, 2020, one 18 of the perpetrators of the assaults was placed in Harper’s module and told Harper and others 19 that “the sheriffs deputies told him to come in.” Id. at 5. According to Harper, the inmate 20 was later moved and sheriffs deputies said they forgot the individual was to remain in a 21 separate dorm. Id. As a result of these events, Harper, who suffers from post traumatic 22 stress disorder and depression and is bi-polar, is traumatized. He now suffers from “strange 23 headaches” and lower back pain. Id. at 3. He lost his hearing for some time after being hit 24 in the head during the assault and his hearing remains impaired. Id. He also suffers from 25 nightmares and now fears all Hispanic inmates. Id. 26 C. 42 U.S.C. § 1983 27 “Section 1983 creates a private right of action against individuals who, acting under 28 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, [1] 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 2 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 3 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations 4 omitted). “To establish § 1983 liability, a Plaintiff must show both (1) deprivation of a right 5 secured by the Constitution and laws of the United States, and (2) that the deprivation was 6 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 7 F.3d 1128, 1138 (9th Cir. 2012). 8 D. Discussion 9 Harper has failed to state a claim upon which § 1983 relief may be granted. 10 Departments of municipal entities are not “persons” subject to suit under § 1983; therefore, 11 a local law enforcement agency, like the San Diego Sheriff’s Department and its detention 12 facilities are not proper parties. See Vance v. County of Santa Clara, 928 F. Supp. 993 , 996 13 (N.D. Cal. 1996) (“Naming a municipal department as a defendant is not an appropriate 14 means of pleading a § 1983 action against a municipality.”) (citation omitted); Powell v. 15 Cook County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes liability 16 on any ‘person’ who violates someone’s constitutional rights ‘under color of law.’ Cook 17 County Jail is not a ‘person.’”). 18 “Persons” under § 1983 are state and local officials sued in their individual 19 capacities, private individuals and entities which act under color of state law, and/or the 20 local governmental entity itself. Vance, 928 F. Supp. at 995-96 . The GBDF is an agency 21 or department of the County of San Diego, but it is not a “person” subject to suit under 22 § 1983. Id.; Powell v. Cook County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (stating 23 that “[s]ection 1983 imposes liability on any ‘person’ who violates someone's 24 constitutional rights ‘under color of law.’ Cook County Jail is not a ‘person.’ ”). Therefore, 25 Plaintiff cannot pursue any § 1983 civil rights claims against the GBDF. See e.g., Boone v. 26 Deutsche Bank Nat’l Tr. Co., No. 2:16-CV-1293-GEB-KJN-PS, 2017 WL 117966 , at *3 27 (E.D. Cal. Jan. 12, 2017) (stating that “[b]ecause the Solano County Sheriff’s Department 28 / / / 1 is not a ‘person’ within the meaning of Section 1983, plaintiffs cannot maintain their claims 2 against it under that statute as a matter of law.”). 3 To the extent Plaintiff may have intended to assert a claim against the County of San 4 Diego itself, his allegations are also insufficient. A municipal entity may be held liable 5 under § 1983 only if he alleges facts sufficient to plausibly show that he was deprived of a 6 constitutional right by individually identified employees who acted pursuant to the 7 municipality’s policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 8 274, 280 (1977); Monell v. Dep’t of Social Servs, 436 U.S. 658, 691 (1978); Villegas v. 9 Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). The County of San Diego 10 may not be held vicariously liable under § 1983 simply because one of its employees is 11 alleged to have acted wrongfully. See Board of Cty. Comm’rs. v. Brown, 520 U.S. 397 , 403 12 (1997); Monell, 436 U.S. at 691 (“[A] a municipality cannot be held liable solely because 13 it employs a tortfeasor.”); Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir. 2014). Instead, 14 the municipality may be held liable “when execution of a government’s policy or custom 15 ... inflicts [a constitutional] injury.” Monell, 436 U.S. at 694 ; Los Angeles Cty., Cal. v. 16 Humphries, 562 U.S. 29 , 36 (2010). Harper has not plausibly alleged that any individual at 17 the GBDF was executing county government policy or custom which inflicted a 18 constitutional injury. Monell, 436 U.S. at 694 ; Los Angeles Cty., Cal. v. Humphries, 562 19 U.S. 29 , 36 (2010). 20 Further, although Harper alleges his due process and Eighth Amendment rights were 21 violated, he fails to plausibly show how, or to what extent, any particular individual may 22 be held individually liable for the constitutional injuries he alleges. See Iqbal, 556 U.S. at 23 676-77; Jones v. Comm’ty Redev. Agency of City of Los Angeles, 733 F.2d 646, 649 (9th 24 Cir. 1984) (even pro se plaintiff must “allege with at least some degree of particularity 25 overt acts which defendants engaged in” in order to state a claim). Compl. at 3-4. In order 26 to allege the deprivation of a constitutional right within the meaning of § 1983, a Plaintiff 27 must plausibly allege that an individual defendant “[did] an affirmative act, participate[d] 28 in another’s affirmative acts, or omit[ted] to perform an act which he is legally required to 1 do that causes the deprivation of which [the plaintiff complains].” Johnson v. Duffy, 588 2 F.2d 740, 743 (9th Cir. 1978). Broad and conclusory allegations, such as the ones put forth 3 in Harper’s Complaint, are not sufficient. Instead, “Plaintiff must plead that each 4 Government-official defendant, through [his] own individual actions, has violated the 5 Constitution” in order to plead a plausible claim for relief. Iqbal, 556 U.S. at 676-77 . “The 6 inquiry into causation must be individualized and focus on the duties and responsibilities 7 of each individual defendant whose acts or omissions are alleged to have caused a 8 constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), (citing 9 Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)); Berg v. Kincheloe, 794 F.2d 457, 460 (9th 10 Cir. 1986); Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (stating 11 that “[c]ausation is, of course, a required element of a § 1983 claim.”) 12 “Inmates who sue prison officials for injuries suffered while in custody may do so 13 under the Eighth Amendment’s Cruel and Unusual Punishment Clause or, if not yet 14 convicted, under the Fourteenth Amendment’s Due Process Clause.” Castro v. Cty. of Los 15 Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (citing Bell v. Wolfish, 441 U.S. 520 , 535 16 (1979) (holding that, under the Due Process Clause, a detainee may not be punished prior 17 to conviction)). Under either Amendment, a Plaintiff must allege facts sufficient to show 18 that Defendants acted with “deliberate indifference” in order to state a plausible claim for 19 relief. Id. at 1068; Iqbal, 556 U.S. at 678 ; Hatter v. Dyer, 154 F. Supp. 3d 940 , 944-54 20 (E.D. Cal. 2015) (applying Castro’s objective deliberate indifference standard to pretrial 21 detainee’s over-crowding and general conditions of confinement claims). In order to state 22 a plausible Fourteenth Amendment failure to protect claim, Harper must plausibly allege 23 that “a reasonable officer in the circumstances would have appreciated the high degree of 24 risk involved,” or that the failure to abate a “substantial risk” caused him an injury. Castro, [25] 833 F.3d at 1071 . Harper’s factual allegations as currently pleaded are insufficient to 26 support a claim that any specific individual was responsible for any of the claims he raises 27 in his Complaint. 28 / / / 1 III. Conclusion and Orders 2 Good cause appearing, the Court: 3 1. GRANTS Harper’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915 (a) 4 (ECF No. 2); 5 2. DIRECTS the Watch Commander for the George Bailey Detention Facility, 6 or their designee, to collect from Harper’s trust account the $350 filing fee owed by 7 collecting monthly payments from Harper’s account in an amount equal to twenty percent 8 (20%) of the preceding month’s income and forwarding those payments to the Clerk of the 9 Court each time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915 (b)(2). 10 ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND 11 NUMBER ASSIGNED TO THIS ACTION; 12 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 13 Commander, George Bailey Detention Facility, 446 Alta Road, San Diego, CA 92158; 14 4. DISMISSES Harper’s Complaint for failing to state a claim upon which relief 15 may be granted pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii) and § 1915A(b)(1). 16 5. GRANTS Harper sixty (60) days leave from the date of this Order in which 17 to file an Amended Complaint which cures all the deficiencies of pleading noted above. 18 Harper’s Amended Complaint must be complete by itself without reference to his original 19 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 20 will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios, Inc. v. Richard 21 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 22 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 23 (noting that claims dismissed with leave to amend which are not re-alleged in an amended 24 pleading may be “considered waived if not repled.”). 25 If Harper 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 Harper’s failure to state 27 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 28 1915A(b)(1), 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 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 IT IS SO ORDERED. 5 ||Dated: March 15, 2021 € □ [6] Hon. Cathy Ann Bencivengo 7 United States District Judge [10] 1]