Tuck v. Graves

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 ROY TUCK, Case No.: 21cv2086-JO-JLB 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND DIRECTING U.S. MARSHAL 14 JONATHON GRAVES; SAMUEL TO EFFECT SERVICE OF ROBISON; COUNTY OF SAN DIEGO; 15 COMPLAINT AND SUMMONS and DOES 1 through 20, [16] Defendants. [20] 21 Plaintiff Roy Tuck (“Plaintiff”), a non-prisoner proceeding pro se, filed a civil rights 22 complaint against Defendants Jonathon Graves, Samuel Robison, the County of San Diego, 23 and Does 1 through 20 (collectively, “Defendants”). Dkt. 1 (“Complaint” or “Compl.”). 24 Plaintiff filed a concurrent motion for leave to proceed in forma pauperis (“IFP”). Dkt. 2. 25 For the reasons set forth below, the IFP motion is GRANTED. 26 I. Motion to Proceed IFP 27 Plaintiff has not prepaid the civil filing fee and instead requested to proceed IFP, 28 claiming an inability to pay. A plaintiff instituting any civil action, suit, or proceeding in 1 a federal district court, except an application for writ of habeas corpus, must pay a filing 2 fee of $402. 28 U.S.C. § 1914 (a). However, a district court may waive the filing fee by 3 granting the plaintiff leave to proceed IFP. 28 U.S.C. § 1915 (a)(1). To proceed IFP, a 4 plaintiff must submit an affidavit that includes a statement of all assets and demonstrates 5 an inability to pay the filing fee. 28 U.S.C. § 1915 (a); see also Local Civ. R. 3.2. An 6 affidavit is “sufficient where it alleges that the [plaintiff] cannot pay the court costs and 7 still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 8 2015) (citation omitted). “The granting or refusing of permission to proceed [IFP] is a 9 matter committed to the sound discretion of the district court.” Skelly v. U.S. Dep't of 10 Educ., 2019 WL 6840398 , at *2 (S.D. Cal. Dec. 16, 2019) (quoting Smart v. Heinze, 347 11 F.2d 114, 116 (9th Cir. 1965)). 12 In support of his IFP motion, Plaintiff has filed an affidavit under the penalty of 13 perjury explaining his financial circumstances. Dkt. 2. He indicates that he is not 14 employed and relies on retirement and disability income. Id. at 2. Plaintiff’s sole listed 15 asset is a 2001 Chevy Silverado, which he states is valued at $1,000. Id. at 3. Plaintiff’s 16 affidavit has “sufficiently show[n] that he lacks the financial resources to pay filing fees.” 17 Dillard v. So, 2013 WL 4857692 , at *1 (S.D. Cal. Sept. 11, 2013). Accordingly, the Court 18 GRANTS Plaintiff’s motion to proceed IFP pursuant to 28 U.S.C. § 1915 (a). 19 II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915 (e)(2)(B) 20 a. Standard of Review 21 Because Plaintiff is granted leave to proceed IFP, his Complaint must undergo a sua 22 sponte screening for dismissal. Notwithstanding payment of any filing fee or portion 23 thereof, a complaint filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915 (a) is 24 subject to a mandatory and sua sponte review and dismissal by the court to the extent it is 25 frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks 26 monetary relief from a defendant immune from such relief. 28 U.S.C. § 1915 (e)(2)(B); 27 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 28 1915(e)(2)(B) are not limited to prisoners.”). 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 4 1108, 1112 (9th Cir. 2012); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 5 1998) (noting that “the language of § 1915(e)(2)(B)(ii) parallels the language of Federal 6 Rule of Civil Procedure 12(b)(6).”). Rule 12(b)(6) requires that a complaint “contain 7 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 8 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 9 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 10 cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. 11 at 678 . Pro se complaints are construed “liberally” and may be dismissed for failure to 12 state a claim only “if it appears beyond doubt that the plaintiff can prove no set of facts in 13 support of his claim which would entitle him to relief.” Wilhelm v. Rotman, 680 F.3d at 14 1113, 1121 (9th Cir. 2012). 15 b. Factual Background 16 Plaintiff’s Complaint arises from his arrest by Defendants Jonathon Graves and 17 Samuel Robison (collectively, “Defendant Officers”), who are employed by Defendant 18 County of San Diego (“County of San Diego”). On November 11, 2021, Plaintiff’s wife 19 told Plaintiff to “get out” of the home that they shared. Compl. ¶ 36. She called the police. 20 Id. Plaintiff ran out of their home and went to the “secured, private, locked pool area” in 21 their living community. Id. ¶ 39. Multiple police officers including Defendant Officers 22 arrived to the pool area. Id. ¶ 44. A police officer “demanded that Plaintiff[] come over 23 and open the private property pool gate lock for him and the other officers to enter and talk 24 to him.” Id. ¶ 45. Plaintiff “was [then] told he was being placed under arrest” for felony 25 domestic violence. Id. ¶ 53. Plaintiff “remained apologetic, scared, polite, and totally 26 compliant” with Defendant Officers during the arrest. Id. ¶ 57. Plaintiff informed 27 Defendant Officers that he cannot be handcuffed behind his back due to “several serious 28 ongoing degenerative effects” and medical issues. Id. ¶¶ 54–59. He informed Defendant 1 Officers that “standard police issued handcuffs would not fit on his wrists…and would 2 cause extreme bodily injuries.” Id. ¶ 61. Plaintiff “begged and pleaded with both 3 Defendant Officers for special treatment due to his ongoing medical issues,” but Defendant 4 Officers “over-cinch[ed] both undersized handcuffs” onto Plaintiff’s wrists and transported 5 him to North San Diego County Jail. Id. ¶¶ 60, 72, 78. 6 As a result of the arrest, Plaintiff suffered “a bloody [] right wrist wound” from the 7 handcuffs. Compl. ¶ 89. He alleges that the “on-duty jail house medical nurse did not 8 answer any of Plaintiff’s numerous urgently painful pleas for her to assist him with 9 immediate medical attention at Tri City Hospital.” Id. ¶¶ 101–104. Plaintiff alleges that 10 County of San Diego was “ultimately responsible due to the existing customs and policies 11 of its officers.” Id. ¶ 178. 12 c. Discussion 13 Plaintiff appears to bring four claims pursuant to 42 U.S.C. § 1983 , characterized as 14 follows: (1) trespass and unreasonable seizure against all Defendants; (2) violation of equal 15 protection and due process against all Defendants; (3) municipal liability for 16 unconstitutional customs and practices against County of San Diego; and (4) loss of social 17 standing against all Defendants. Additionally, Plaintiff appears to bring a state law claim 18 for intentional infliction of emotional distress against all Defendants. 19 In support of his claim for loss of social standing, Plaintiff alleges that “he became 20 an outcast within his own public circle,” “has been shunned by his own friends,” and “was 21 not included in any further gatherings with friends, family, and social groups that he was 22 previously included in.” Compl. ¶¶ 209–213. Even liberally construing this claim, the 23 Court finds that Plaintiff fails to state a legally cognizable claim for relief. Cervantes v. 24 Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (“Dismissal is proper 25 when the complaint does not make out a cognizable legal theory”). Accordingly, this claim 26 is DISMISSED. Regarding the remaining claims, the Court finds Plaintiff’s Complaint is 27 sufficient to survive the “low threshold” set for sua sponte screening as required by 28 28 U.S.C. § 1915 (e)(2). Wilhelm, 680 F.3d at 1123. Accordingly, Plaintiff may proceed on 1 his claims against all Defendants for trespass and unreasonable seizure, violation of equal 2 protection and due process, and intentional infliction of emotional distress, and his claim 3 against County of San Diego for municipal liability for unconstitutional customs and 4 practices. 5 III. CONCLUSION 6 For the reasons discussed above, the Court hereby: 7 1) GRANTS Plaintiff’s motion to proceed IFP pursuant to 28 U.S.C. § 1915 (a). 8 Dkt. 2. 9 2) DISMISSES Plaintiff’s claim for loss of social standing against all 10 Defendants. 11 3) DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (Dkt. 1) 12 upon Defendants and forward it to Plaintiff along with a blank U.S. Marshal 13 Form 285 (“Form 285”). The Clerk will also provide Plaintiff with a 14 certified copy of this Order, a certified copy of his Complaint, and the 15 summons (together, the “IFP Package”) so that he may serve Defendants. 16 Upon receipt of the IFP Package, Plaintiff must complete the Form 285 as 17 completely and accurately as possible, include an address where Defendants 18 may be found and/or subject to service pursuant to S.D. Cal. Civ. LR 4.1c., 19 and return it to the U.S. Marshal according to the instructions the Clerk 20 provides. 21 // 22 // 23 // 24 // 25 // 26 // [28] 1 4) ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 2 upon Defendants upon receipt and as directed by Plaintiff Roy Tuck on the 3 completed Form 285, and to promptly file proof of service, or proof of all 4 attempts at service unable to be executed, with the Clerk of Court. See S.D. 5 Cal. Civ. LR 5.2. All costs of that service will be advanced by the United 6 States. See 28 U.S.C. § 1915 (d); Fed. R. Civ. P. 4(c)(3). [7] 8 IT IS SO ORDERED. [9] 10 || Dated: June 22, 2022 [11] 12 Ho orgbfe Tinsook Ohta 13 United States District Judge