Strauss v. Magana
| Decision Date | 07 October 2021 |
| Docket Number | 3:21-cv-01145-WQH-LL |
| Parties | ROBERT ALLEN STRAUSS, CDCR #AP-2353, Plaintiff, v. FILEMON MAGANA, Police Officer; EL CENTRO POLICE DEPARTMENT, Policing Agency, Defendants. |
| Court | U.S. District Court — Southern District of California |
1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF NO. 2]
AND
2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2) AND 28 U.S.C. § 1915A(B)
Plaintiff Robert Allen Strauss, while incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed a civil rights Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. See ECF No. 1. Strauss claims the El Centro Police Department (“ECPD”) and one of its officers used excessive force during the course of his arrest on January 18, 2019. See Id. at 1‒4. He seeks $500, 000 in both general and punitive damages. Id. at 7.
Strauss has not prepaid the filing fee required by 28 U.S.C. § 1914(a) to commence a civil action. Instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF 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 $402.[1] 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). The fee is not waived for prisoners, however. If granted leave to proceed IFP, they nevertheless 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 whether their actions are dismissed for other reasons. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
To qualify, 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), (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, 577 U.S. at 84.
In support of his IFP Motion, Strauss has submitted a copy of his California Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report, as well as a prison certificate authorized by a RJD Accounting Officer Specialist. (ECF No. 3.) See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These documents show Strauss had no money deposited to his trust account during the six months prior to filing, and that he had no money in his account at the time he filed suit. (ECF No. 3 at 1, 3.) Therefore, the Court GRANTS Strauss's Motion to Proceed IFP (ECF No. 2), and declines to assess any initial filing fee because his trust account statements show he “has no means to pay it.” Bruce, 577 U.S. 84-85. Instead, the Court DIRECTS the Secretary of the CDCR to collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and to forward those fees to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(2). See id.
Because Strauss 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 found frivolous, malicious, failing to state a claim, or seeking 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 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) ().
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); 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. 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).
Strauss's factual allegations are sparse. He claims only that that on January 18, 2019, El Centro Police Officer Filemon Magana, while “performing his duties as a police officer” “deployed ECPD K-9 (Max) onto [him].” See Compl. at 2, 3. Strauss claims Max “bit and shook [his] left ankle” at Magana's command “after [Strauss] was already in handcuffs.” Id. at 3, 4. Strauss contends this violates the “California dog bite statute” and “constitutes excessive force” in violation of the Eighth Amendment. Id.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 1035-36 (9th Cir. 2015).
First, to the extent Plaintiff names the ECPD as a Defendant, he fails to state a claim upon which § 1983 relief may be granted. Departments of municipal entities are not “persons” subject to suit under § 1983; therefore, a local law enforcement department (like the ECPD) is not a proper party. See Vance v. County of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996) (“Naming a municipal department as a defendant is not an appropriate means of pleading a § 1983 action against a municipality.”) (citation omitted). “Persons” under § 1983 are state and local officials sued in their individual capacities, private individuals and entities which act under color of state law, and/or the local governmental entity itself. Id. at 995-96. The ECPD is managed by and/or a department of the City of El Centro, but it is not a “person” subject to suit under § 1983. See e.g., United States v. Kama, 394 F.3d 1236, 1239 (9th Cir. 2005) (“[M]unicipal police departments and bureaus are generally not considered ‘persons' within the meaning of section 1983.”); Rodriguez v. Cty. of Contra Costa, 2013 WL 5946112 at *3 (N.D. Cal. Nov. 5, 2013) (citing Hervey v. Estes, 65 F.3d 784, 791 (9th Cir. 1995)) (“Although municipalities, such as cities and counties, are amenable to suit under Monell [v. Dep't of Social Servs, 436 U.S. 658 (1978)], sub-departments or bureaus of municipalities, such as the police departments, are not generally considered “persons” within the meaning of § 1983.”). Therefore, Strauss cannot pursue any § 1983 civil rights claims against the ECPD.
And while the City of El Centro itself may be considered a “person” and therefore, a proper defendant under § 1983, see Monell, 436 U.S. at 691, Strauss has not named the City as a Defendant. Moreover, as a municipality, the City of El Centro may be held liable under § 1983-but only where the Plaintiff alleges facts to show that a constitutional deprivation was caused by the implementation or execution of “a policy statement ordinance, regulation, or decision officially adopted and promulgated” by the City, or a “final decision maker” for the City. Id. at 690; Board of the Cty. Comm'rs v. Brown, 520 U.S. 397, 402‒04 (1997); Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995). In other words, “respondeat superior and vicarious liability are not cognizable theories of recovery against a municipality.” Miranda v. Clark County, Nevada, 279 F.3d 1102, 1109-10 (...
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