Buckelew v. Gore
| Decision Date | 23 November 2020 |
| Docket Number | Case No.: 3:20-cv-00585-AJB-AHG |
| Court | U.S. District Court — Southern District of California |
| Parties | DION SCOTT BUCKELEW, Booking #19729940, Plaintiff, v. WILLIAM D. GORE, et al., Defendants. |
(1) GRANTING RENEWED MOTION TO PROCEED IN FORMA PAUPERIS
Plaintiff Dion Scott Buckelew, detained at the San Diego County Jail ("SDCJ"), and awaiting trial in San Diego Superior Court Criminal Case No. SCN400062, is proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. §§ 1983, 1985, 1986, 1989 and "all relevant sections under fed. law." See Compl., ECF No. 1 at 1; Amend. Compl. ("FAC"), ECF No. 5 at 1.
On May 11, 2020, the Court dismissed Plaintiff's case because he did not prepay the $400 civil filing fee required by 28 U.S.C. § 1914(a) or file a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a), and because his Complaint, which named more than 60 individual San Diego Superior Court judges, Deputy Public Defenders, San Diego Sheriff's Department officials, a private hospital, and dozens of unidentified Defendants, failed to comply with Fed. R. Civ. P. 8(a). See ECF No. 4. However, the Court granted Plaintiff 45 days leave to fix these deficiencies, directed the Clerk of the Court to provide him with blank copies of both its approved form Civil Rights Complaint pursuant to 42 U.S.C. § 1983, as well as its form Motion to Proceed IFP, and cautioned that he must "include a certified copy of his prison trust account statements for the 6-month period preceding the filing of his Complaint" with his IFP Motion as required by 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). See ECF No. 4 at 8-9.
On June 8, 2020, Plaintiff filed an Amended Complaint ("FAC") (ECF No. 5), together with a Motion to Proceed IFP (ECF No. 6). But because his IFP Motion still failed to comply with 28 U.S.C. § 1915(a)(2), the Court denied it, and gave him 30 additional days to submit a renewed and complete IFP application. See ECF No. 7. Plaintiff has since filed a renewed Motion to Proceed IFP, this time attaching the trust account documentation missing from his prior attempt. See ECF No. 8.
As Plaintiff now knows, 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 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite failureto prepay the entire fee only if the plaintiff 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). Prisoners granted leave to proceed IFP remain obligated to pay the entire fee in "increments" or "installments," Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of outcome. 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 all persons seeking to proceed without full prepayment of fees to submit an affidavit that includes a statement of all assets possessed and demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In support of this affidavit, § 1915(a)(2) requires that all prisoners as defined by 28 U.S.C. § 1915(h) who "seek[] 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); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005).
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). The institution having custody of the prisoner then must collect 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, 577 U.S. at 85-86.
In support of his renewed IFP Motion, Plaintiff has now submitted a prison certificate certified by a San Diego County Sheriff's Department Detentions Lieutenant, together with a copy of his Inmate Trust Account Activity dated October 25, 2019 through June 17, 2020. See ECF No. 8 at 6-8; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These statements show Plaintiff had $283.79 to his credit atSDCJ at the time of filing, average monthly deposits of $442.70, and carried an average balance of $302.61in his account over the preceding six-months. See ECF No. 8 at 7-8.
Therefore, the Court GRANTS Plaintiff's Renewed Motion to Proceed IFP (ECF No. 8) and assesses his initial partial filing fee to be $88.54 pursuant to 28 U.S.C. § 1915(b)(1). However, the Court will direct the Facility Commander at SDCJ, or his or her designee, to collect this initial filing fee only if sufficient funds are available in Plaintiff's account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (); Bruce, 577 U.S. at 86; Taylor, 281 F.3d at 850 (). The remaining balance of the $350 total fee owed in this case must be collected by the agency having custody of the prisoner and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).
Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a preliminary review 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 thereof, if it 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) (citation 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 ofCivil 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) ().
Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to "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. And while the court "ha[s] an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff's Amended Complaint names two distinct groups of Defendants and appears to assert two separate sorts of claims.
First, Plaintiff challenges the constitutionality of the conditions under which he has been detained at the SDCJ "from 12-22-19 to date." See FAC at 1. Plaintiff seeks to hold Defendants Gore, Montgomery, Mendez, Buchanan, Hayes, Avalos, Tania, and an unnamed Chief of Internal Affairs liable with respect to those conditions. He claims broadly that these officials have failed to provide him with adequate medical care, rehabilitative programs, safe and sanitary conditions of confinement, religious services, and internal grievance or investigative procedures sufficient to address his concerns. Id. at 8-11, 13.
Second, Plaintiff claims several San Diego County Superior Court judges, his appointed public defenders, a pro per coordinator for the San Diego County Public Defender's Office of Assigned Counsel, and the Clerks of both the San Diego CountySuperior Court and United States District Court have violated his rights to effective assistance of counsel and access to the courts, and have denied him a fair and speedy trial in San Diego Superior Court Criminal Case No. SCN400062, which remains pending.2 Id. at 12.
Plaintiff seeks injunctive relief preventing acts of retaliation, "continue[d] ... violations," and the destruction of evidence, as well as $50 million in general, punitive and "exemplary" damages. Id. at 15.
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