The opinion of the court was delivered by: WILLIAM HAYES, District Judge
(1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS; [Doc. No.
(2) DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO
28 U.S.C. § 1915A
Plaintiff, an inmate currently incarcerated at the Richard J.
Donovan Correctional Facility in San Diego, California and
proceeding pro se, has filed a civil rights Complaint pursuant to
42 U.S.C. § 1983. Plaintiff alleges that, while he was
incarcerated at the San Diego County Central Jail, Defendants
Vargas and Petty denied him adequate medical care and used
excessive force in violation of his constitutional rights. See
Compl. at 3-5.
Plaintiff has 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. 2]. 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)
Prisoners seeking leave to proceed IFP must also submit a
"certified copy of the trust fund account statement (or
institutional equivalent) for the prisoner for the 6-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), (4). The 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).
While Plaintiff has filed a Motion to Proceed IFP in this
matter pursuant to 28 U.S.C. § 1915(a), he has not attached a
certified copy of his prison trust account statement for the
6-month period immediately preceding the filing of his
Complaint.*fn1 See 28 U.S.C. § 1915(a)(2); S.D.CAL. CIVLR
3.2. Section 1915(a)(2) clearly mandates that prisoners "seeking
to bring a civil action . . . without prepayment of fees . . .
shall submit a certified copy of the trust fund account
statement (or institutional equivalent) . . . for the 6-month
period immediately preceding the filing of the complaint."
28 U.S.C. § 1915(a)(2) (emphasis added). Without Plaintiff's trust account statement, the Court is simply unable to assess the
appropriate amount of the filing fee required to initiate this
action. See 28 U.S.C. § 1915(b)(1). Therefore, Plaintiff's
Motion to Proceed IFP [Doc. No. 2] must be DENIED.
II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b)
In addition, 28 U.S.C. § 1915A further obligates the Court to
review complaints filed by prisoners, like Plaintiff, who are
"incarcerated or detained in any facility who is accused of,
sentenced for, or adjudicated delinquent for, violations of
criminal law or the terms or conditions of parole, probation,
pretrial release, or diversionary program," "as soon as
practicable after docketing" and regardless of IFP status. See
28 U.S.C. § 1915A(a), (c). The Court must sua sponte dismiss
prisoner complaints, or any portions thereof, which are
frivolous, malicious, or fail to state a claim upon which relief
may be granted. 28 U.S.C. § 1915A(b); Resnick v. Hayes,
213 F.3d 443, 446-47 (9th Cir. 2000).*fn2
"Under § 1915A, when determining whether a complaint states a
claim, a court must accept as true all allegations of material
fact and must construe those facts in the light most favorable to
the plaintiff." Id. at 447 (citing Cooper v. Pickett,
137 F.3d 616, 623 (9th Cir. 1997)). The rule of liberal construction
is "particularly important in civil rights cases." Ferdik v.
Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Nevertheless, in
giving liberal interpretation to a pro se civil rights complaint,
the court may not, "supply essential elements of the claim that
were not initially pled." Ivey v. Bd of Regents of the
University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
B. Application to Plaintiff's Complaint
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. Excessive Force claims
Plaintiff alleges that Defendants Vargas and Petty used
excessive force against him when they threw Plaintiff onto a
"wooden bench inside a holding cell" and applied "pressure
point/pain holds while pulling plaintiff from a sitting
position." See Compl. at 4-5. Because Plaintiff claims to have
been in San Diego County Jail at the time Deputies Vargas and
Petty are alleged to have used excessive force against him, it is
unclear whether the Eighth or Fourteenth Amendment applies to
Plaintiff's claim. The Eighth Amendment's prohibition against the
"malicious or sadistic" use of force, see Hudson v. McMillian,
503 U.S. 1, 7 (1992), does not apply "until after conviction and
sentence." Graham v. Connor, 490 U.S. 386, 392 n. 6 (1989).
"Being violently assaulted in prison is simply not `part of the
penalty that criminal offenders pay for their offenses against
society.'" Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
Pretrial detainees, on the other hand, are protected by
substantive due process, and may also challenge the use of force
against them under the Fourteenth Amendment if that force is so
excessive that it amounts to punishment. Bell v. Wolfish,
441 U.S. 520, 535 (1979) ("[U]nder the Due Process Clause, a detainee
may not be punished prior to an adjudication of guilt in
accordance with due process of law."). For pretrial detainees,
"who have not been convicted of any crimes, retain at least those
constitutional rights that we have held are enjoyed by convicted
prisoners." Id. at 545; Redman v. County of San Diego,
942 F.2d 1435, 1441 (9th Cir. 1991) (en banc) (holding that
"deliberate indifference is the level of culpability that
pretrial detainees must establish for a violation of their
personal security interests under the Fourteenth Amendment," and
"conduct that is so wanton or reckless with respect to the
`unjustified infliction of harm as is tantamount to a knowing
willingness that it occur,' will also suffice to establish
liability because it is conduct equivalent to a deliberate choice.")
(quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)); see
also White v. Roper, 901 F.2d 1501, 1507 (9th Cir. 1990) (for a
pretrial detainee to show a violation of substantive due process,
he must show "egregious government conduct in the form of
excessive and brutal use of physical force."). In deciding
whether that force is "excessive," the court should consider:
"(1) the need for force; (2) the relationship between the need
and the amount of force used; (3) the extent of injury inflicted;
and (4) whether the force was applied in good faith."). Id.; cf.
Hudson, 503 U.S. at 7 (considering same four Whitley ...