United States District Court, S.D. California
DAVID BRYAN TURNER, Jr., Booking No. 197347785, Plaintiff,
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).
Gonzalo P. Curiel, United States District Judge.
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).
Motion to Proceed IFP
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. 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).
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.
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).
Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and
Standard of Review
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
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.
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).
Plaintiff's Factual Allegations
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
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.)
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
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 ...