Turner v. Pollard ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL WAYNE TURNER, Case No.: 3:20-cv-02193-DMS-AGS CDCR #AN-8222, 12 ORDER: Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 (ECF No. 2); MARCUS POLLARD, 16 Defendant. AND 17 2) DISMISSING COMPLAINT FOR 18 LACK OF SUBJECT-MATTER 19 JURISDICTION PURSUANT TO FED. R. CIV. P. 12(h)(3) AND FOR 20 FAILURE TO STATE A CLAIM 21 PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND 28 U.S.C. § 22 1915A(b) 23 24 Plaintiff Michael Wayne Turner (“Plaintiff”), currently incarcerated at Mule Creek 25 State Prison, is proceeding pro se in this action seeking damages for 26 alleged “losse[s] of personal property, mental anguish, [and] depression.” (See ECF No. 27 1, Compl. at 2.) 28 Plaintiff did not prepay the $402 civil filing fee required by 28 U.S.C. Section 1 1914(a) at the time of filing and has instead filed a Motion to Proceed In Forma Pauperis 2 (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (See ECF No. 2.) 3 I. Motion to Proceed In Forma Pauperis 4 All parties instituting any civil action, suit or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 8 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 9 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is 10 granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or 11 “installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 12 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately 13 dismissed. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 14 Cir. 2002). 15 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 16 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 17 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 18 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 19 trust account statement, the Court assesses an initial payment of 20% of (a) the average 20 monthly deposits in the account for the past six months, or (b) the average monthly balance 21 in the account for the past six months, whichever is greater, unless the prisoner has no 22 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 23 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $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 28 1 month’s income, in any month in which his account exceeds $10, and forwards those 2 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 3 136 S. Ct. at 629. 4 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 5 account statement pursuant to 28 U.S.C. Section 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2. 6 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statements, 7 which show that he carried an average monthly balance of $198.36 and had $158.33 in 8 average monthly deposits to his trust account for the six months preceding the filing of this 9 action, and that Plaintiff had an available balance of $219.78 at the time of filing. (See 10 ECF No. 2, at 4.) 11 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 12 assesses an initial partial filing fee of $39.67 pursuant to 28 U.S.C. Section 1915(b)(1)(B). 13 The Court directs the Secretary of the CDCR, or her designee, to collect this initial filing 14 fee only if sufficient funds are available in Plaintiff’s account at the time this Order is 15 executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 16 prohibited from bringing a civil action or appealing a civil action or criminal judgment for 17 the reason that the prisoner has no assets and no means by which to pay the initial partial 18 filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 19 Section 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case 20 based solely on a “failure to pay . . . due to the lack of funds available to him when payment 21 is ordered.”). The Court further directs the Secretary of the CDCR, or her designee, to 22 collect the remaining balance of the filing fees required by 28 U.S.C. Section 1914 and to 23 forward it to the Clerk of the Court pursuant to the installment payment provisions set forth 24 in 28 U.S.C. Section 1915(b)(1). 25 II. Sua Sponte Screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 26 1915A(b) 27 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 28 answer screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b). Under 1 these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion 2 of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 3 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 4 (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th 5 Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The purpose of [screening] is ‘to 6 ensure that the targets of frivolous or malicious suits need not bear the expense of 7 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler 8 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 9 In addition to reviewing prisoner’s IFP complaints under 28 U.S.C. Section 10 1915(e)(2) and Section 1915A(b), the Court must also determine sua sponte whether it has 11 subject-matter jurisdiction over Plaintiff’s case. See Valdez v. Allstate Ins. Co., 372 F.3d 12 1115, 1116 (9th Cir. 2004); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at 13 any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). 14 Plaintiff’s Complaint, such as it is, is a form designed for asserting claims in small 15 claims court. (See generally Compl.) It names Defendant Marcus Pollard as the sole 16 Defendant, and demands $10,000 for “losse[s] of personal property, mental anguish, [and] 17 depression” suffered between January 16, 2020 and October 16, 2020. (See id. at 2.) Aside 18 from that, Plaintiff’s Complaint contains no factual allegations whatsoever. (See id.) 19 Although Plaintiff may wish to file a civil rights action, or some other claim for relief 20 in federal court based on the alleged losses of property and other harms he has suffered, 21 his current Complaint fails to invoke federal subject-matter jurisdiction under 28 U.S.C. 22 Section 1343(a)(3), which creates federal jurisdiction over certain civil rights claims, 28 23 U.S.C. Section 1331, which creates federal jurisdiction over “civil actions arising under 24 the Constitution, laws, or treaties of the United States,” or any other potential source of 25 federal jurisdiction. (See generally Compl. at 2.) As a result, the Court must dismiss 26 Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(h)(3). See Watson v. 27 Chessman, 362 F. Supp. 2d 1190, 1194 (S.D. Cal. 2005) (“The court will not . . . infer 28 allegations supporting federal jurisdiction; federal subject matter [jurisdiction] must 1 always be affirmatively alleged.” (citations omitted)); see also Fed. R. Civ. P. 8(a)(1) 2 (explaining that a pleading stating a claim for relief “must contain . . . a short and plain 3 statement of the grounds for the court’s jurisdiction . . . .”). If Plaintiff does not wish to 4 pursue a federal civil rights claim, and instead wishes to proceed in small claims court (as 5 his use of the form suggests), then he must file the form he submitted in the proper state 6 court. 7 Even if Plaintiff’s Complaint invoked the Court’s subject-matter jurisdiction, 8 however, it would nevertheless fail to state any discernable claim for relief that is 9 “‘plausible on its face’” because it contains no factual allegations. See Ashcroft v. Iqbal, 10 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 11 As a result, it would be subject to dismissal under 28 U.S.C. Section 1915(e)(2)(B)(ii) and 12 Section 1915A(b). If Plaintiff does wish to pursue a federal civil rights claim against 13 Defendant Pollard, he must allege factual matter sufficient to show that: (1) a right secured 14 by the Constitution or laws of the United States was violated; and (2) the alleged violation 15 was committed by a person acting under color of state law. See Campbell v. Wash. Dep’t 16 of Soc. Servs., 671 F.3d 837, 842 n.5 (9th Cir. 2011). “Because vicarious liability is 17 inapplicable to . . . § 1983 suits,” he must also allege that Defendant Pollard or any other 18 government official he wishes to sue, “through the official’s own individual actions, has 19 violated the constitution.” See Iqbal, 556 U.S. at 676. 20 In light of Plaintiff’s pro se status, the Court grants him leave to amend his 21 pleading to attempt to allege both subject-matter jurisdiction and to state a claim upon 22 which relief may be granted, if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th 23 Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to 24 amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the 25 deficiencies in the complaint could not be cured by amendment.’” (quoting Akhtar v. 26 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 27 III. Conclusion and Orders 28 Good cause appearing, the Court: 1 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. Section 2 1915(a) (ECF No. 2). 3 2. DIRECTS the Secretary of the CDCR, or her designee, to collect from 4 Plaintiff’s prison trust account the initial filing fee assessed in this Order, and to forward 5 the remainder of the $350 filing fee owed by collecting monthly payments from Plaintiff’s 6 account in an amount equal to twenty percent (20%) of the preceding month’s income and 7 forwarding those payments to the Clerk of the Court each time the amount in the account 8 exceeds $10 pursuant to 28 U.S.C. Section 1915(b)(2). ALL PAYMENTS SHALL BE 9 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 10 ACTION. 11 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 12 Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 13 942883, Sacramento, California 94283-0001. 14 4. DISMISSES Plaintiff’s Complaint for lack of subject matter jurisdiction 15 pursuant to Federal Rule of Civil Procedure 12(h)(3) and for failing to state a claim upon 16 which relief may be granted pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii) and Section 17 1915A(b)(1). 18 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 19 which to file an Amended Complaint which cures all the deficiencies of pleading noted 20 above. Plaintiff’s Amended Complaint must be complete by itself without reference to his 21 original pleading. Defendants not named and any claim not re-alleged in his Amended 22 Complaint will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios, 23 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 24 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 25 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 26 amended pleading may be “considered waived if not repled.”). 27 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 28 will enter a final Order dismissing this civil action based on the Court’s lack of subject- 1 || matter jurisdiction, Plaintiff's failure to state a claim upon which relief can be granted 2 ||pursuant to 28 U.S.C. Sections 1915(e)(2)(B)Gi) and 1915A(b)(1), and his failure to 3 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427 4 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity 5 ||to fix his complaint, a district court may convert the dismissal of the complaint into 6 dismissal of the entire action.’’). 7 IT IS SO ORDERED. 8 9 || Dated: December 11, 2020 J 10 2 inn yw. Hon. Dana M. Sabraw 1] United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7