Rodriguez v. San Diego Sheriff et al, No. 3:2015cv02248 - Document 3 (S.D. Cal. 2015)

Court Description: ORDER Granting 2 Plaintiff's Motion for Leave to Proceed in forma pauperis; and Dismissing Complaint for Failing to State a Claim. The Secretary of the CDCR, or his designee, shall collect from Plaintiff's prison trust account the � 36;350 filing fee owed in this case by collecting monthly payments from the account in an amount equal to twenty percent (20%) of the preceding months income and forward payments to the Clerk of the Court each time the amount in the account e xceeds $10. The Clerk of the Court is directed to serve a copy of this Order on Watch Commander, San Diego Central Jail, 1173 Front Street, San Diego, California 92101. Plaintiff's Complaint is dismissed for failing to state a claim. The Court grants Plaintiff 45 days leave in which to re-open his case by filing an Amended Complaint. The Clerk of Court is directed to mail Plaintiff a copy of a court approved civil rights complaint form. Signed by Judge Gonzalo P. Curiel on 12/22/15. (All non-registered users served via U.S. Mail Service)Order sent to Watch Commander. Civil rights complaint sent to Plaintiff. (dlg)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Case No.: 3:15-cv-02248-GPC-WVG Pedro Rodriguez 14745493, 13 14 15 16 17 18 ORDER: Plaintiff, 1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) (ECF No. 2) v. SAN DIEGO SHERIFF WILLIAM GORE; CITY OF SAN DIEGO; COUNTY OF SAN DIEGO, AND Defendants. 2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) & § 1915A 19 20 21 22 23 Pedro Rodriguez (“Plaintiff”), currently housed at San Diego Central Jail (“SDCJ”) 24 located in San Diego, California, and proceeding pro se, has filed a civil rights complaint 25 (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff did not prepay the civil 26 filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In 27 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 1 3:15-cv-02248-GPC-WVG Plaintiff’s Motion to Proceed IFP 1 I. 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 6 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if a prisoner, like Plaintiff, is 8 granted leave to proceed IFP, he remains obligated to pay the entire fee in “increments,” 9 see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his 10 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 11 281 F.3d 844, 847 (9th Cir. 2002). 12 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 13 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of the 14 trust fund account statement (or institutional equivalent) for the prisoner for the six- 15 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 16 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 17 trust account statement, the Court assesses an initial payment of 20% of (a) the average 18 monthly deposits in the account for the past six months, or (b) the average monthly 19 balance in the account for the past six months, whichever is greater, unless the prisoner 20 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 21 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 22 preceding month’s income, in any month in which the prisoner’s account exceeds $10, 23 and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 24 25 26 27 1 In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule) (eff. May 1, 2013). However, the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id. 2 3:15-cv-02248-GPC-WVG 1 2 § 1915(b)(2). Plaintiff has submitted a certified copy of his prison certificate. The Court has 3 reviewed Plaintiff’s information and finds that he has insufficient funds from which to 4 pay a partial initial filing fee. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event 5 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or 6 criminal judgment for the reason that the prisoner has no assets and no means by which to 7 pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 8 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 9 solely on a “failure to pay . . . due to the lack of funds available to him when payment is 10 ordered.”). 11 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 12 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 13 balance of the filing fees mandated will be collected by the Watch Commander at the San 14 Diego Central Jail and forwarded to the Clerk of the Court pursuant to the installment 15 payment provisions set forth in 28 U.S.C. § 1915(b)(1). 16 II. 17 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A 18 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP 19 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] 20 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 21 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as 22 soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under 23 these statutes, the Court must sua sponte dismiss complaints, or any portions thereof, 24 which are frivolous, malicious, fail to state a claim, or which seek damages from 25 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. 26 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. 27 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 3 3:15-cv-02248-GPC-WVG 1 All complaints must contain “a short and plain statement of the claim showing that 2 the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are 3 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 4 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 5 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 6 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 7 requires the reviewing court to draw on its judicial experience and common sense.” Id. 8 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 9 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 10 “When there are well-pleaded factual allegations, a court should assume their 11 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 12 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 13 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 14 allegations of material fact and must construe those facts in the light most favorable to 15 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 16 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 17 However, while the court “ha[s] an obligation where the petitioner is pro se, 18 particularly in civil rights cases, to construe the pleadings liberally and to afford the 19 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 20 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 21 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 22 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 23 As currently pleaded, the Court finds that Plaintiff’s Complaint fails to state a 24 cognizable claim under 42 U.S.C. § 1983. Section 1983 imposes two essential proof 25 requirements upon a claimant: (1) that a person acting under color of state law 26 committed the conduct at issue, and (2) that the conduct deprived the claimant of some 27 right, privilege, or immunity protected by the Constitution or laws of the United States. 4 3:15-cv-02248-GPC-WVG 1 See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other 2 grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger, 769 3 F.2d 1350, 1354 (9th Cir. 1985) (en banc). Plaintiff is currently a pre-trial detainee2 with pending criminal charges in San 4 5 Diego Superior Court. (See Compl. at 1.) Plaintiff alleges that Defendant William Gore, 6 Sheriff for the County of San Diego, violated his right to access to the courts under the 7 First, Sixth and Fourteenth Amendments.” (Id. at 2.) Specifically, Plaintiff challenges 8 various policies at the SDCJ, such as prohibiting assistance to detainees in filing legal 9 paperwork, not providing copies for legal filings, failing to provide postage for legal 10 mailings and denying Plaintiff access to legal books sent to him by his family. (Id. at 3- 11 5.) 12 Inmates have a constitutional right to access to the courts. Lewis v. Casey, 518 U.S. 13 343, 346 (1996). The right is limited to the filing of direct criminal appeals, habeas 14 petitions, and civil rights actions. Id. at 354. Claims for denial of access to the courts may 15 arise from the frustration or hindrance of “a litigating opportunity yet to be gained” 16 (forward-looking access claim) or from the loss of a suit that cannot now be tried 17 (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002); see 18 also Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (differentiating “between 19 two types of access to court claims: those involving prisoners’ right to affirmative 20 assistance and those involving prisoners’ rights to litigate without active interference.”). However, Plaintiff must allege “actual injury” as the threshold requirement to any 21 22 access to courts claim. Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. An “actual 23 injury” is “actual prejudice with respect to contemplated or existing litigation, such as the 24 inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at 348; see also 25 26 27 Plaintiff refers to himself as a “prisoner of San Diego County” but the documents attached to his complaint show that he is a detainee, currently housed at the San Diego Central Jail awaiting trial on unspecified criminal charges. 2 5 3:15-cv-02248-GPC-WVG 1 Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the 2 “inability to file a complaint or defend against a charge”). The failure to allege an actual 3 injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to 4 show that a ‘non-frivolous legal claim had been frustrated’ is fatal.”) (quoting Lewis, 518 5 U.S. at 353 & n.4). 6 To support his claim that he has suffered an “actual injury,” Plaintiff has attached 7 copies of two decisions authored by Justices for the California Court of Appeal in which 8 his two separate petitions for writ of habeas corpus were denied. (See Comp., ECF No. 1, 9 at 59-60.) In both of these opinions Plaintiff’s petitions are denied, in part, due to a 10 failure to “attach copies of reasonably available documentary evidence supporting 11 [Plaintiff’s] claim.” (Id.) Plaintiff alleges that it is the policy of the SDCJ to deny access 12 to photocopies which led to these denials. However, these petitions were both denied for 13 other reasons including Plaintiff’s submission of “conclusory allegations” which were 14 “not enough to state a prima facie case for habeas relief,” and a finding that Plaintiff’s 15 legal claims “lack merit and do not establish the unlawfulness of his confinement.” (Id.) 16 Plaintiff also attaches the first page of an order from a separate civil rights action he filed 17 in this Court in which his action was dismissed for failing to state a claim. (See Compl., 18 ECF No. 1, at 61.) 19 Even if Plaintiff had actions that were dismissed, in part, due to the alleged 20 photocopying policy, this action fails because he must also allege the loss of a “non- 21 frivolous” or “arguable” underlying claim. Harbury, 536 U.S. at 413-14. The nature and 22 description of the underlying claim must be set forth in the pleading “as if it were being 23 independently pursued.” Id. at 417. Finally, Plaintiff must specifically allege the 24 “remedy that may be awarded as recompense but not otherwise available in some suit that 25 may yet be brought.” Id. at 415. Plaintiff’s Complaint fails to identify or describe the 26 non-frivolous or arguable nature of the underlying cause of action he either anticipated or 27 lost as a result of the SDCJ policies. Id. at 416 (“[L]ike any other element of an access 6 3:15-cv-02248-GPC-WVG 1 claim[,] . . . the predicate claim [must] be described well enough to apply the 2 ‘nonfrivolous’ test and to show that the ‘arguable’ nature of the underlying claim is more 3 than hope.”). 4 Plaintiff also claims that Defendants refused to provide postage and attaches copies 5 of what appear to be two attempts to mail filings to the California Court of Appeals and 6 this Court. (See Compl. at 9.) Both appear to have been returned to Plaintiff for lack of 7 postage. While Plaintiff may not have been able to mail some items, he does not allege 8 with any particularity what documents or filings he was unable to mail due to lack of 9 postage that have precluded his pursuit of a non-frivolous direct or collateral attack upon 10 either his criminal conviction or sentence or the conditions of his current confinement. 11 See Lewis, 518 U.S. at 355 (right to access to the courts protects only an inmate’s need 12 and ability to “attack [his] sentence[], directly or collaterally, and ... to challenge the 13 conditions of [his] confinement.”). In fact, the Court takes judicial notice3 that Plaintiff 14 has filed at least eight (8) civil rights action in this Court alone which indicates that he 15 has been able to successfully mail several documents to the courts. 16 Plaintiff also alleges that the Office of Assigned Counsel have violated his 17 constitutional rights by failing to assist him with filings in the courts and failing to file 18 appropriate motions in his criminal matter. Plaintiff has already attempted to sue three 19 attorneys with the Office of Assigned Counsel by claiming that their assistance in his 20 ongoing criminal matter was ineffective. See Rodriguez v. Stall, et al., S.D. Cal. Civil 21 Case No. 3:14-cv-02646 LAB (DHB). It is not clear that the claims in this action differ 22 from the claims that he raised in this previous action. 23 24 25 26 27 A court “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 3 7 3:15-cv-02248-GPC-WVG 1 Regardless, Plaintiff’s fails to state a claim as to any individual with the Office of 2 Assigned Counsel (“OAC”) as he fails to allege facts to plausible suggest that any 3 individual with the OAC acted “under color of state law” to deprive him of a right 4 secured by the Constitution or laws of the United States. See West v. Atkins, 487 U.S. 42, 5 48 (1988). 6 When a plaintiff seeks to hold a private actor liable under § 1983, he must allege 7 facts that show some “state involvement which directly or indirectly promoted the 8 challenged conduct.” Ouzts v. Maryland Nat’l Ins. Co., 505 F.2d 547, 553 (9th Cir. 9 1974). A person “acts under color of state law only when exercising power ‘possessed by 10 virtue of state law and made possible only because the wrongdoer is clothed with the 11 authority of state law.’” Polk County v. Dodson, 454 U.S. 312, 317-18 (1981) (quoting 12 United States v. Classic, 313 U.S. 299, 326 (1941)). 13 Plaintiff’s Complaint fails to allege facts to plausibly suggest that any individual 14 with the OAC acted on behalf of, or in any way attributable to, the state. Iqbal, 556 U.S. 15 at 679. And even if Plaintiff alleged individuals with the OAC were not merely assisting 16 him in an “ancillary” capacity, but instead, were appointed by the court to defend him 17 during trial or other critical pretrial proceedings, their actions would not have been taken 18 under color of state law because representing a client “is essentially a private function ... 19 for which state office and authority are not needed.” Dodson, 454 U.S. at 319; United 20 States v. De Gross, 960 F.2d 1433, 1442 n.12 (9th Cir. 1992). 21 When attorneys act in the role of advocate, they do not act under color of state law 22 for purposes of section 1983. See Georgia v. McCollum, 505 U.S. 42, 53 (1992); 23 Dodson, 454 U.S. at 320-25; Miranda v. Clark County, 319 F.3d 465, 468 (9th Cir. 2003) 24 (en banc) (finding that public defender was not a state actor subject to suit under § 1983 25 because, so long as she performs a traditional role of an attorney for a client, “h[er] 26 function,” no matter how ineffective, is “to represent h[er] client, not the interests of the 27 state or county.”). 8 3:15-cv-02248-GPC-WVG For these reasons, the Court finds Plaintiff’s access to courts claims must be 1 2 dismissed for failing to state a plausible claim upon which § 1983 relief can be granted. 3 See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678. 4 Because Plaintiff is proceeding without counsel, and the Court has now provided 5 him “notice of the deficiencies in his complaint,” it will grant Plaintiff an opportunity to 6 amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. 7 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 8 III. 9 10 11 12 Conclusion and Order Good cause appearing, IT IS HEREBY ORDERED that: 1. Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2) is GRANTED. 2. The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s 13 prison trust account the $350 filing fee owed in this case by collecting monthly payments 14 from the account in an amount equal to twenty percent (20%) of the preceding month’s 15 income and forward payments to the Clerk of the Court each time the amount in the 16 account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 17 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 18 TO THIS ACTION. 19 20 3. The Clerk of the Court is directed to serve a copy of this Order on Watch Commander, San Diego Central Jail, 1173 Front Street, San Diego, California 92101. 21 IT IS FURTHER ORDERED that: 22 4. Plaintiff’s Complaint is DISMISSED for failing to state a claim upon which 23 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 24 However, the Court GRANTS Plaintiff 45 days leave in which to re-open his case by 25 filing an Amended Complaint which cures all the deficiencies of pleading noted above. 26 Plaintiff’s Amended Complaint must be complete by itself without reference to his 27 original complaint. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 9 3:15-cv-02248-GPC-WVG 1 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes 2 the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that 3 claims dismissed with leave to amend which are not re-alleged in an amended pleading 4 may be “considered waived if not repled.”). 5 If Plaintiff fails to file an Amended Complaint within the time provided, this civil 6 action will remain dismissed without prejudice based on Plaintiff’s failure to state a claim 7 upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 8 § 1915A(b)(1). 9 5. 10 11 The Clerk of Court is directed to mail Plaintiff a copy of a court approved civil rights complaint form. Dated: December 22, 2015 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 10 3:15-cv-02248-GPC-WVG

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.