The opinion of the court was delivered by: ROGER BENITEZ, District Judge
(1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO
INITIAL PARTIAL FILING FEE AND GARNISHING $250 BALANCE FROM
PRISONER'S TRUST ACCOUNT [Doc. No. 2]; AND
(3) DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO
28 U.S.C. §§ 1915(e)(2) AND 1915A(b)
Plaintiff, an inmate currently incarcerated at the Richard J.
Donovan Correctional Facility ("Donovan") in San Diego,
California and proceeding pro se, has filed a civil rights
Complaint pursuant to 42 U.S.C. § 1983.*fn1
not prepaid the civil filing fee required by 28 U.S.C. § 1914(a), but has instead submitted a Motion to Proceed In
Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No.
I. Motion to Proceed IFP [Doc. No. 2]
All parties instituting any civil action, suit or proceeding in
a district court of the United States, except an application for
writ of habeas corpus, must pay a filing fee of $250. See
28 U.S.C. § 1914(a). An action may proceed despite a party's failure
to prepay the entire fee only if the party is granted leave to
proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v.
Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted
leave to proceed IFP however, remain obligated to pay the entire
fee in installments, regardless of whether the action is
ultimately dismissed for any reason. See 28 U.S.C. § 1915(b)(1)
Under 28 U.S.C. § 1915, as amended by the Prison Litigation
Reform Act ("PLRA"), a prisoner seeking leave to proceed IFP must
submit a "certified copy of the trust fund account statement (or
institutional equivalent) for the prisoner for the six-month
period immediately preceding the filing of the complaint."
28 U.S.C. § 1915(a)(2). From the certified trust account statement,
the Court must assess an initial payment of 20% of (a) the
average monthly deposits in the account for the past six months,
or (b) the average monthly balance in the account for the past
six months, whichever is greater, unless the prisoner has no
assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4).
That institution having custody of the prisoner must collect
subsequent payments, assessed at 20% of the preceding month's
income, in any month in which the prisoner's account exceeds $10,
and forward those payments to the Court until the entire filing
fee is paid. See 28 U.S.C. § 1915(b)(2).
The Court finds that Plaintiff has submitted an affidavit which
complies with 28 U.S.C. § 1915(a)(1), and that he has attached a
certified copy of his trust account statement pursuant to
28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff's trust
account statement shows that he has insufficient funds from which
to pay filing fees at this time. See 28 U.S.C. § 1915(b)(4)
(providing that "[i]n no event shall a prisoner be prohibited
from bringing a civil action or appealing a civil action or
criminal judgment for the reason that the prisoner has no assets
and no means by which to pay the initial partial filing fee.");
Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing
dismissal of a prisoner's IFP case based solely on a "failure to
pay . . . due to the lack of funds available to him when payment
is ordered."). Therefore, the Court GRANTS Plaintiff's Motion
to Proceed IFP [Doc. No. 2] and assesses no initial partial
filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $250
balance of the filing fees mandated shall be collected and
forwarded to the Clerk of the Court pursuant to the installment
payment provisions set forth in 28 U.S.C. § 1915(b)(1).
II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(b)(ii) and
Notwithstanding payment of any filing fee or portion thereof,
the PLRA also requires courts to review complaints filed by
prisoners, and all persons proceeding IFP, and dismiss any action
or complaint which is frivolous, malicious, fails to state a
claim upon which relief may be granted, or seeks monetary relief
from a defendant immune from such relief.
28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); Marks v. Solcum, 98 F.3d 494, 496 (9th
Cir. 1996); Williams v. Roberts, 116 F.3d 1126, 1127 (5th Cir.
1997) ("plain language of the PLRA holds that . . . fees be
assessed at the moment [of filing], regardless of whether appeal
[or complaint] is later dismissed"); McGore v. Wrigglesworth,
114 F.3d 601, 608 (6th Cir. 1997) ("The dismissal of a complaint
under § 1915(e)(2) or § 1915A does not negate a prisoner's
obligation to pay the filing fee in accordance with §
Section 1983 "is not itself a source of substantive rights, but
merely provides a method for vindicating federal rights elsewhere
conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989)
(internal citations omitted); Crumpton v. Gates, 947 F.2d 1418,
1420 (9th Cir. 1991). As such, § 1983 imposes two essential proof
requirements upon a claimant: (1) that a person acting under
color of state law committed the conduct at issue, and (2) that
the conduct deprived the claimant of some right, privilege, or
immunity protected by the Constitution or laws of the United
States. See 42 U.S.C. § 1983; Parratt v. Taylor,
451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v.
Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger,
769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). A. Access to Courts Claim
In his Complaint, Plaintiff alleges that he was "called out to
court" from Donovan and held at the San Diego County Jail on June
26, 2004. See Compl. at 3. Plaintiff was told by an unnamed San
Diego Sheriff's Sergeant that the amount of legal material
Plaintiff wanted to bring with him exceeded the amount of
personal property he was entitled to. Id. Plaintiff was also
told that when he was released he would receive all of his
personal property, including his legal materials. Id. However,
on the date Plaintiff was released, he contends that the
Sheriff's Department told him that they were unable to locate
Plaintiff's personal property including his legal materials.
Id. Plaintiff alleges that these legal materials included
"legal research" that he had "compiled to bring (3) civil cases"
that he had "successfully to trial." Id.
Here, the Court finds that Plaintiff's factual allegations fall
short of the pleading standards necessary to state an access to
courts claim. See 28 U.S.C. § 1915(e)(2). Prisoners do "have a
constitutional right to petition the government for redress of
their grievances, which includes a reasonable right of access to
the courts." O'Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir.
1996); accord Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir.
1995). In Bounds, 430 U.S. at 817, the Supreme Court held that
"the fundamental constitutional right of access to the courts
requires prison authorities to assist inmates in the preparation
and filing of meaningful legal papers by providing prisoners with
adequate law libraries or adequate assistance from persons who
are trained in the law." Bounds v. Smith, 430 U.S. 817, 828
(1977). To establish a violation of the right to access to the
courts, however, a prisoner must allege facts sufficient to show
that: (1) a nonfrivolous legal attack on his conviction,
sentence, or conditions of confinement has been frustrated or
impeded, and (2) he has suffered an actual injury as a result.
Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An "actual injury"
is defined as "actual prejudice with respect to contemplated or
existing litigation, such as the inability to meet a filing
deadline or to present a claim." Id. at 348; see also Vandelft
v. Moses, 31 F.3d 794, 796 (9th Cir. 1994); Sands v. Lewis,
886 F.2d 1166, 1171 (9th Cir. 1989); Keenan v. Hall,
83 F.3d 1083, 1093 (9th Cir. 1996). Here, however, Plaintiff has not alleged any facts sufficient
to show that he has been precluded from pursuing a non-frivolous
direct or collateral attack upon either his criminal conviction
or sentence or the conditions of his current confinement. See
Lewis, 518 U.S. at 355 (right to access to the courts protects
only an inmate's need and ability to "attack [his] sentence?,
directly or collaterally, and . . . to challenge the conditions
of [his] confinement."); see also Christopher v. Harbury,
536 U.S. 403, 415 (2002) (the non-frivolous nature of the "underlying
cause of action, whether anticipated or lost, is an element that
must be described in the complaint, just as much as allegations
must describe the official acts frustrating the litigation.").
Moreover, Plaintiff has not alleged facts sufficient to show that
he has been actually injured by any specific Defendant's actions.
Lewis, 518 U.S. at 351.
In short, Plaintiff has not alleged that "a complaint he
prepared was dismissed," or that he was "so stymied" by
Defendants' actions or grievance processing that "he was unable
to even file a complaint," direct appeal or petition for writ of
habeas corpus. Lewis, 518 U.S. at 351; Christopher,
536 U.S. at 416 ("like any other element of an access claim[,] . . . the
predicate claim [must] be described well enough to apply the
`nonfrivolous' test and to show that the `arguable' nature of the
underlying claim is more than hope."). Therefore, these claims
must be dismissed for failing to state a claim upon which section
1983 relief can be granted.
Plaintiff also names the "San Diego Sheriff Department" and the
"Office of County Counsel" as Defendants; however, a municipal
police or law enforcement department is not considered a "person"
subject to suit under § 1983. See Vance v. County of Santa
Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) ("Naming a
municipal department as a defendant is not an appropriate means
of pleading a § 1983 action against a municipality.") (citation
omitted); Powell v. Cook County Jail, 814 F.Supp. 757, 758
(N.D. Ill. 1993) ("Section 1983 imposes liability on any `person'
who violates someone's constitutional rights `under color of
law.' Cook County Jail is not a `person.'). While the County of San Diego itself may be considered a
"person" and therefore, a proper defendant under § 1983, see
Monell v. Department of Social Services, 436 U.S. 658, 691
(1978); Hammond v. County of Madera, 859 F.2d 797, 801 (9th
Cir. 1988), as a municipality it may be held liable under § 1983
only where the Plaintiff alleges facts to show that a
constitutional deprivation was caused by the implementation or
execution of "a policy statement, ordinance, regulation, or
decision officially adopted and promulgated" by the County.
Monell, 436 U.S. at 690; Board of the County Commissioners v.
Brown, 520 U.S. 397, 402-04 (1997); Navarro v. Block,
72 F.3d 712, 714 (9th Cir. 1995). In other words, "respondeat superior
and vicarious liability are not cognizable theories of recovery
against a municipality." Miranda v. Clark County, Nevada,
279 F.3d 1102, 1109-10 (9th Cir. 2002). "Instead, a Monell claim
exists only where the alleged constitutional deprivation was
inflicted in `execution of a government's policy or custom.'"
Id. (quoting Monell, 436 U.S. at 694). Thus, even were the
Court to liberally construe Plaintiff's allegations against the
San Diego Sheriff Department and the Office of County Counsel as
an attempt to state a claim against County of San Diego,
Plaintiff has not stated a § 1983 claim because he has failed to
allege that any individual County employee deprived him of a
constitutional right pursuant to official municipal policy,
custom or practice. See Monell, 436 U.S. at 690; Brown,
520 U.S. at 403.
Accordingly, the Court finds that Plaintiff's Complaint fails
to state a section 1983 claim upon which relief may be granted,
and is therefore subject to dismissal pursuant to
28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). The Court will provide Plaintiff with
an opportunity to amend his pleading to cure the defects set
forth above. Plaintiff is warned that if his amended complaint
fails to address the ...