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Turner v. County of San Diego

United States District Court, S.D. California

October 31, 2019

DAVID BRYAN TURNER, Jr., Booking No. 197347785, Plaintiff,
v.
COUNTY OF SAN DIEGO; SAN DIEGO HARBOR POLICE, Police Officer John Doe; SHERIFF DEP.'T, San Diego Sheriff John Doe; METROPOLITAN TRANSIT SYSTEMS, Trolley Police Officer Jane Doe, Defendants.

          ORDER: 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF NO. 2], AND 2) DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. § 1915(E)(2) AND § 1915A(B).

          Hon. Gonzalo P. Curiel, United States District Judge.

         David Bryan Turner, Jr., (“Plaintiff”), incarcerated at the George Bailey Detention Facility (“GBDF”) located in San Diego, California, has filed a civil rights action (“Compl.”) pursuant to 42 U.S.C. § 1983. In addition, Plaintiff has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).

         I. Motion to Proceed IFP[1]

         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 $400.[2] See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or “installments, ” Bruce v. Samuels, __ U.S. __, 136 S.Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

         Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to 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); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses 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). The institution having custody of the prisoner then collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which his account exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S.Ct. at 629.

         In support of his request to proceed IFP, Plaintiff has submitted a copy of his GBDF Inmate Statement Report. See ECF No. 2; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. This document shows that Plaintiff had an available balance of zero at the time of filing. See ECF No. 2 at 4. Based on this accounting, the Court GRANTS Plaintiff's request to proceed IFP, and will assess no initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). 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.”); Bruce, 136 S.Ct. at 630; 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.”). The Court will further direct the Watch Commander of GBDF, or their designee, to instead collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). See Id.

         II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A

         A. Standard of Review

         Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted).

         “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

         Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

         B. Plaintiff's Factual Allegations

         Plaintiff's Complaint contains very few specific factual allegations and the few allegations that are made are disjointed and difficult to discern. On September 18, 2019, Plaintiff alleges that he was in “wanton pain caused by being place[d] in imminent danger at the court date.” (Compl. at 3.) Plaintiff apparently made a request to be seen “by the doctor for the injuries” but he was “never seen.” (Id.) It appears that Plaintiff is claiming to have injuries to his “nerves, hand, face, back, and head” as well as suffering from “P.T.S.D.” (Id.) Plaintiff alleges that these injuries were “caused by wanton conduct by San Diego Sheriff Departments.” (Id.) Plaintiff claims that the County of San Diego has policies that resulted in “harm to [Plaintiff]” including a “broken hand, head trauma, neck pain, and great P.T.S.D.” (Id.)

         On July 21, 2019, Plaintiff allegedly forced to take off his clothing in order for the San Diego Sheriff Deputies to conduct a “visual cavity search.” (Id. at 9.) Plaintiff claims during this search, “other inmates were present and [Plaintiff] did not have a curtain between him and another inmate.” (Id.) Plaintiff alleges he was searched “for no reason” in violation of “California privacy rights” according to the “policy adopted by the County of San Diego.” (Id.) Plaintiff further claims he is in “imminent danger of serious physical injury because of the policy of the use of force by handcuffs in the San Diego County Jails.” (Id.)

         On October 13, 2018, Plaintiff claims he was “returning from the hospital with a broken hand on the trolley.” (Id. at 12.) Plaintiff was “stopped by the [Metropolitan Transit System (“MTS”)] trolley police.” (Id.) Plaintiff alleges Defendant Jane Doe “wrote [Plaintiff] a ticket” because he “could not find his trolley pass.” (Id.) Defendant Jane Doe “called the San Diego County Sheriff Department.” (Id.) San Diego County Sheriff Deputies “John Does and Jane Does” arrived and “placed overly tight handcuffs” onto Plaintiff. (Id.) Plaintiff alleges that the San Diego County Sheriff Deputies “starting twisting” Plaintiff and “slammed [Plaintiff] face first on the pavement.” (Id.)

         On October 22, 2018, Plaintiff alleges that he was “arrest[ed] by John Doe Harbor Police Officer” and taken to San Diego County of Mental Health facility. (Id.) Plaintiff was given a “shot” and “woke up nude ...


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