Pies-Lonsdale v. Banachi

GABRIEL PIES-LONSDALE INMATE #64770-298, Plaintiff, v. F. BANACHI, et al., Defendants.

No. 3:22-cv-00310-LAB-BLM

United States District Court, S.D. California

May 10, 2022

ORDER: 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 3] 2) SCREENING COMPLAINT PURSUANT TO 28 U.S.C. § 1915(e)(2) & 28 U.S.C. § 1915A(b)

Hon Larry Alan Burns, United States District Judge

Gabriel Pies-Lonsdale (“Pies-Lonsdale” or “Plaintiff”), a federal detainee currently housed at the Metropolitan Correctional Center (“MCC”) in San Diego, California, and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 Compl., ECF No. 1. Plaintiff claims Defendants violated his Eighth and Fourteenth Amendment rights. Id. at 4 -6. He requests damages in the amount of $900, 000, 000, and punitive damages in the amount of $463.00. Id. at 9. Plaintiff 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 IFP. ECF No. 3 I Motion to Proceed IFP

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 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 who is granted leave to proceed IFP remains 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 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 IFP Motion, Plaintiff has submitted a copy of his MCC trust account activity and a Prison Certificate signed by an authorized officer. See ECF No. 3 at 4-5; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These statements show that Plaintiff has had an average monthly balance of $50.48 and average monthly deposits of $50.48 for the preceding six months. Id. at 4. He had an available balance of $0.00 at the time of filing. See ECF No. 3 at 4. Based on this accounting, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 3) and assesses an initial partial filing fee of $10.09 pursuant to 28 U.S.C. § 1915(b)(1). However, this initial fee need be collected only if sufficient funds are available in Newton's account at the time this Order is executed. 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, 577 U.S. at 86; 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 remaining balance of the $350 total fee owed in this case must be collected by the agency having custody of Plaintiff and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).

II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

A. Standard of Review

Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a preanswer 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.'” 3 3:22-cv-00310-LAB-BLM Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

“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 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.

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

At the time Plaintiff filed his Complaint he was housed at the Western Regional Detention Facility (“WRDF”). Plaintiff alleges that on February 16, 2022, he was booked into the WRDF and had $463.00 in his jacket pocket. Compl., ECF No. 1 at 4. According to Plaintiff, Defendant Banachi was the person who performed the “detainee property intake, ” and the $463.00 is now missing. Id. On February 21, 2022, Plaintiff filed a grievance regarding the missing money. Id. Defendant Hartley allegedly replied, “You know very well that you did not arrive with any cash. The officer who annotated the $463.00 is being reprimanded as he admitted he didn't actually receive any cash on your behalf. You transferred from another facility [and] money does not transfer with you ever.

The Chief is attempting to contact the prior facility.” Id.

Plaintiff also alleges that on February 17, 2022, Defendant Carney yelled the following at him while Plaintiff was in the visiting room waiting for court: “I am [going] to make sure your time here is a [living] hell[.] You think we forgot about that tort claim; you['re] this close to going to segregation and you can forget about your money.” Id.

On February 18, 2022, Plaintiff alleges he put in a health services request because he had a rash on his penis, but had no response to the request as of February 25, 2022. Id. On February 19, 2022, Plaintiff filed a health care grievance asking to be tested for Covid-19 because he had not been tested when he arrived at the detention facility, was feeling sick, and Covid-19 protocols were not being followed, such as temperature checks and six feet of distancing. Id. at 6. He claims he never received a response to the grievance. Id.

Plaintiff also claims that on March 2, 2022, a WRDF captain “impersonated . . . my attorney telling staff that I had a legal visit in a fraudulent matter.” Id. According to Plaintiff, it was in fact “a standoff to intimidate me with threats and then to [bribe] me with medical care, ” which Plaintiff claims consisted only of a blood pressure check. Id.

C. 42 U.S.C. § 1983

“Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012) (emphasis added).

D. Discussion

Plaintiff is a federal pretrial detainee seeking to sue federal defendants for allegedly violating his Eighth Amendment rights by refusing him proper medical care and his due process rights failing to respond to grievances. Compl., ECF No. 1 at 4-6. Therefore, he may not proceed under § 1983 because the claims in the Complaint to...