Nguyen v. Dewey

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 Case No. 23-cv-1576-BAS-AHG 12 VICTORIA NGUYEN, ORDER: 13 Plaintiff, (1) GRANTING IFP (ECF No. 2); (2) DISMISSING THE 14 v. COMPLAINT, SUA SPONTE, 15 TYLER DEWEY, SAM RODRIGUEZ, FOR FAILURE TO STATE A D. SHORES, et al., CLAIM (ECF No. 1); AND [16] (3) GRANTING PLAINTIFF Defendants. 17 LEAVE TO AMEND THE COMPLAINT (ECF No. 1) [19] 20 Proceeding pro se, Plaintiff Victoria Ngyuen (“Nguyen”) brought this civil action 21 against fourteen named San Diego police officers. (Compl., ECF Nos. 1, 1-1.) Nguyen 22 simultaneously filed an application to proceed in forma pauperis (“IFP”). (IFP Appl., ECF 23 No. 2.) For the reasons set forth below, the Court GRANTS Nguyen’s IFP Application 24 (ECF No. 2), DISMISSES the Complaint without prejudice (ECF No. 1), and GRANTS 25 Nguyen leave to file a First Amended Complaint. 26 I. IFP APPLICATION 27 All parties instituting any civil action, suit, or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee. See [1] 28 U.S.C. § 1914 (a). The action may proceed despite a plaintiff’s failure to prepay the 2 entire fee only if the plaintiff is granted IFP status pursuant to 28 U.S.C. § 1915 (a). See 3 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 4 1176, 1177 (9th Cir. 1999). 5 Under 28 U.S.C. § 1915 , indigency is the benchmark for whether a plaintiff may 6 proceed IFP. The determination of indigency falls within the district court’s sound 7 discretion. See Cal. Men’s Colony, Unit II Men’s Advisory Council v. Rowland, 939 F.2d 8 854, 858 (9th Cir. 1991) (holding that “[s]ection 1915 typically requires the reviewing court 9 to exercise its sound discretion in determining whether the affiant has satisfied the statute’s 10 requirement of indigency”), rev’d on other grounds, 506 U.S. 194 (1993). A party need not 11 be completely destitute to satisfy the IFP indigency threshold. See Adkins v. E.I. DuPont 12 de Nemours & Co., 335 U.S. 331 , 339–40 (1948). To qualify for IFP status, “an affidavit 13 is sufficient which states that one cannot because of his poverty pay or give security for 14 costs . . . and still be able to provide himself and dependents with the necessities of life.” [15] Id. at 339 . However, “care must be employed to assure that federal funds are not 16 squandered to underwrite, at public expense, . . . the remonstrances of a suitor who is 17 financially able, in whole or in material part, to pull his own oar.” Temple v. Ellerthorpe, [18] 586 F. Supp. 848, 850 (D.R.I. 1984). District courts, therefore, tend to reject IFP 19 applications where the applicant can pay the filing fee with acceptable sacrifice to other 20 expenses. See, e.g., Skyler v. Saul, No. 19CV1581-NLS, 2019 WL 4039650 , at *3 (S.D. 21 Cal. Aug. 27, 2019). 22 Although Nguyen lists ownership of a home valued at $981,000, she also lists a 23 monthly mortgage payment of $2750, along with additional monthly expenses of $600. 24 She lists her income as $2000/month and states that medical issues have prevented her 25 from working. Based on this information, the Court GRANTS Nguyen’s IFP Application. 26 (ECF No. 2.) [28] 1 II. MANDATORY SCREENING OF PLEADING 2 A. Legal Standard 3 Under 28 U.S.C. § 1915 (e)(2)(B), courts must sua sponte dismiss IFP complaints, 4 or any portions thereof, that are frivolous, malicious, fail to state a claim, or seek damages 5 from defendants who are immune. 28 U.S.C. § 1915 (e)(2)(B); see Lopez v. Smith, 203 F.3d 6 1122 , 1126–27 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits but requires 7 a district court to dismiss an [IFP] complaint that fails to state a claim.”); Chavez v. 8 Robinson, 817 F.3d 1162, 1167–68 (9th Cir. 2016) as amended on reh’g (Apr. 15, 2016) 9 (noting that under § 1915(e)(2)(B) a court’s determination that defendants are immune 10 from the claims alleged “mandates dismissal—even if dismissal comes before the 11 defendants are served”). “The provisions of 28 U.S.C. § 1915 (e)(2)(B) are not limited to 12 [complaints filed by] prisoners,” but extend to all IFP pleadings. Calhoun v. Stahl, 254 13 F.3d 845, 845 (9th Cir. 2001) (per curiam). 14 “The standard for determining whether a plaintiff has failed to state a claim upon 15 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 16 Civil Procedure [(“Rule”)] 12(b)(6) standard for failure to state a claim.” Watison v. Carter, [17] 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113 , 1121 18 (9th Cir. 2012) (instructing courts to “incorporate[] the familiar standard applied in the 19 context of failure to state a claim under [Rule] 12(b)(6)” when assessing the sufficiency of 20 an IFP pleading under § 1915(e)(2)(B)(ii)). Under Rule 12(b)(6), the court must accept 21 all factual allegations pleaded in the complaint as true and must construe them and draw 22 all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mut. 23 Ins. Co., 80 F.3d 336 , 337–38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a 24 complaint need not contain detailed factual allegations, rather, it must plead “enough facts 25 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 26 544, 570 (2007). A claim has “facial plausibility when the plaintiff pleads factual content 27 that allows the court to draw the reasonable inference that the defendant is liable for the 28 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 1 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 2 defendant’s liability, it stops short of the line between possibility and plausibility of 3 ‘entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 ) 4 (quotations omitted). 5 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 6 requires more than labels and conclusions, and a formulaic recitation of the elements of a 7 cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 8 U.S. 265 , 286 (1986)). A court need not accept “legal conclusions” as true. Iqbal, 556 U.S. 9 at 678 . Despite the deference the court must pay to the plaintiff’s allegations, it is not proper 10 for the court to assume that “the [plaintiff] can prove facts that [he or she] has not alleged 11 or that the defendants have violated the . . . laws in ways that have not been alleged.” 12 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 13 519, 526 (1983). 14 B. Allegations in the Complaint 15 As best as the Court can ascertain from the Complaint, Plaintiff alleges claims under [16] 42 U.S.C. § 1983 for police action and inaction over a neighborhood dispute in August 17 2021. (Compl. at 3.) Plaintiff claims her neighbors accused her of a hit and run when it 18 was, in fact, the fault of another individual, Omar Flores. (Id.) Police were called to the 19 scene and, according to the Plaintiff, the police officers “colluded with [her] neighbors to 20 frame [her] for a crime that [she] did not commit.” (Compl. at 4 of 6.) Plaintiff brings 21 claims of: “Civil Rights Violation,” “14th Amendment,” “Falsification and Spoliation of 22 Evidence and Reports,” “Malicious prosecution,” “Racial target harassment,” “Neglect 23 standard duty,” “Abuse process,” “abuse authority,” “Negligence,” “Civil conspiracy,” 24 “Defamation,” and “intentional infliction of emotional distress” against fourteen named 25 officers and additional unnamed San Diego police dispatchers. (Compl. at 3–4 of 6; Compl. 26 at 1–3.) The complete allegations against each defendant are summarized below. [28] 1 Officers Dewey and Rodriguez were the officers who initially responded to the 2 scene. The Complaint alleges they filed a false report, failed to investigate the incident, and 3 assumed Plaintiff was at fault. (Compl. at 3–4.) 4 Officer Shore allegedly sent a threatening letter to Plaintiff to tell her a criminal 5 complaint would be filed against her, believing the “eyewitnesses’ contradictive statements 6 over plaintiff’s security camera footage.” (Compl. at 4.) 7 Officers Goebel and Serrano filed an incident report and turned it over to the 8 Traffic Unit without verifying the facts. (Compl. at 4.) 9 After the incident, Plaintiff filed numerous Internal Affairs (“I.A.”) reports about her 10 allegations. (Compl. at 4.) She also sues several of these I.A. investigators. 11 Sergeant Sorbie was initially assigned the I.A. complaint and, according to the 12 Complaint, tried to cover for Shore. (Compl. at 4.) 13 Lieutenant Portnoy came out to interview Plaintiff after a second I.A. complaint 14 was filed. (Compl. at 4.) Plaintiff alleges Portnoy resolved Plaintiff’s concerns after 15 discussing the case with her, but then Plaintiff learned no charges were ever filed against 16 the neighbors. (Compl. at 4.) She alleges Portnoy “continued to broker and cover up for his 17 staff and those people who framed the plaintiff.” (Compl. at 5.) Plaintiff alleges Portnoy 18 said the case was closed without investigating anyone and said he would assign Officer 19 Edington to investigate but did not. (Compl. at 5.) 20 Plaintiff then filed a FOIA request to obtain reports about the incident. (Compl. at 21 5.) She spoke to Lieutenant Lara who told Plaintiff the only way to get the information 22 was to file a lawsuit and subpoena the records. (Compl. at 5–6.) 23 Plaintiff also files suit against several officers whose only alleged violation was a 24 failure to respond to Plaintiff’s concerns: 25 • Lieutenant Hall was allegedly Sorbie’s supervisor who failed to return 26 Plaintiff’s call. (Compl. at 4.) [28] 1 • Sergeant Sutter accompanied Portnoy when he came out to interview 2 Plaintiff during the second I.A. investigation. (Compl. at 4.) She was aware 3 of Plaintiff’s concerns but did nothing. 4 • Captain Sainz did not follow up with Plaintiff and then “disappeared” from 5 contact with Plaintiff. (Compl. at 6.) 6 • Finally, Plaintiff alleges Sergeant Underwood “did not catch where Mr. 7 Flores was illegally riding and attached his child to the bike against the law.” 8 (Compl. at 5.) It is unclear from the Complaint how this relates to the 9 underlying incident, other than the fact that it involves Flores, who is the 10 individual Plaintiff alleges was originally at fault. (Id. at 3.) 11 There are no allegations in the Complaint about Detective Sergeant Danny, Police 12 Chief Nisleit, or any San Diego police dispatchers. 13 C. Analysis 14 As a preliminary matter, Plaintiff fails to state any factual allegations against 15 Detective Danny, Police Chief Nisleit, or any San Diego police dispatchers. Therefore, 16 these Defendants are dismissed for failure to state a claim. In addition, since it is unclear 17 how the allegations against Sergeant Underwood relate to the hit and run incident, this 18 defendant is also dismissed. Plaintiff must explain why each named Defendant is being 19 sued by matching specific factual allegations that connect each defendant with the specific 20 alleged wrongdoing. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (stating that 21 sweeping conclusory allegations about all defendants are not sufficient; a plaintiff must set 22 forth specific facts as to each individual defendant’s liability). 23 With respect to the remaining officers, the allegations generally fall into two areas: 24 (1) failure to investigate or follow up on Nguyen’s concerns and (2) filing false reports. 25 Failure to investigate. An allegation that police officers failed to investigate is not 26 sufficient to state a civil rights claim “unless there was another recognized constitutional 27 right involved.” Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985). “The police have 28 no affirmative obligation to investigate a crime in a particular way or to protect one citizen 1 from another even when one citizen deprives the other of liberty of property.” Gini v. Las 2 Vegas Metro. Police Dep’t, 40 F.3d 1041 , (9th Cir. 1994) (citing Deshaney v. Winnebago 3 Co. Dep’t of Soc. Servs., 489 U.S. 189 , 195–96 (1989); see also Mitchell v. McNeil, 487 4 F.3d 374, 378 (6th Cir. 2007) (“[T]here is no statutory or common law right, much less a 5 constitutional right, to an investigation.”); see also Ogunrinu v. City of Riverside, 79 F. 6 App’x. 961, 962–63 (9th Cir. 2003) (“An inadequate investigation alone does not involve 7 the deprivation of a protected right, but must involve another recognized constitutional 8 right.” (quotations omitted)). 9 Filing false reports. “[F]ederal courts have generally held that the filing of a false 10 police report alone is insufficient to support a constitutional claim under § 1983.” Fisher 11 v. Smith, No. CV 07-08109 MMM (RCx), 2008 WL 11409586 , at *4 (C.D. Cal. Mar. 24, 12 2008). 13 In this case, Plaintiff appears to allege that officers failed to properly investigate a 14 hit and run accident and failed to charge Omar Flores for this incident. To the extent 15 Plaintiff is claiming the officers failed to properly investigate, this is insufficient to state a 16 civil rights claim. Additionally, to the extent the complaint alleges the officers believed the 17 wrong witnesses and filed false police reports when they failed to verify the true facts, this 18 is also insufficient to support a constitutional violation claim. 19 Finally, to the extent Plaintiff alleges “racial target harassment,” she does not allege 20 sufficient facts to support her claim. For instance, she fails to allege that she is a member 21 of a protected class. See Kochan v. Kowalski, 431 F. Supp. 3d 130 , 139 (W.D.N.Y. 2019) 22 (finding the plaintiff did not plead a viable claim where he did not allege that he 23 “belong[ed] to a protected class”). 24 Hence, the Court sua sponte DISMISSES the Complaint for failure to state a claim. 25 However, in general, if a motion to dismiss is granted, the Court should grant leave to 26 amend unless it determines that the pleading could not possibly be cured by allegation of 27 other facts. Lopez, 203 F.3d at 1127 . Therefore, the Court GRANTS Plaintiff leave to 28 amend. Plaintiff is cautioned: if she chooses to file an amended Complaint, she must allege 1 || facts beyond just a failure to investigate or a failure to believe one set of witnesses over 2 ||another. These allegations are insufficient to support a cause of action. In addition, she 3 allege what each named defendant did that makes him or her liable for the claims she 4 alleges. To plead her case, Plaintiff's allegations must extend beyond legal conclusions to 5 || specific facts that support those legal conclusions. 6 Til. CONCLUSION 7 For the reasons stated above, the Court GRANTS Plaintiff's Motion to Proceed □□ 8 || Forma Pauperis (ECF No. 2), but sua sponte DISMISSES the Complaint with leave to 9 ||amend. If Plaintiff chooses to file an amended Complaint, she must do so no later than 10 || February 9, 2024. 11 IT IS SO ORDERED. 12 A. 13 || DATED: January 12, 2024 sii A Hipha. 6 14 United States District Judge [28] 9]