Opinion
Civil No. 05cv2041-H (PCL).
January 20, 2006
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; (2) SUA SPONTE DISMISSING COMPLAINT WITHOUT PREJUDICE PER 28 U.S.C. § 1915(e)(2)
Plaintiff, an inmate housed at the Imperial County Jail, proceeding pro se, has submitted a civil rights Complaint pursuant to 42 U.S.C. §§ 1983, 1985 and 1986, along with a Motion to proceed in forma pauperis. Plaintiff claims that his Fourteenth Amendment right to equal protection, and his rights under state law, were violated when Defendant Deputy District Attorney Owens committed "slander and liable" when, "while on duty," she told Defendants Ballard and Harvey, both special agents with the United States Department of Immigration and Customs Enforcement, that Plaintiff might be carrying a sexually-transmitted disease. (Compl. at 3.) Plaintiff alleges it was Owens' intention that Ballard and Harvey would interview a crime victim to determine whether the victim also exhibited symptoms of the disease. (Id.) Plaintiff seeks monetary damages and injunctive relief. (Id. at 7.)
1. Consent to Magistrate Judge per Local Civil Rule 72.3
This case has been referred to the Honorable Magistrate Judge Peter C. Lewis pursuant to Local Rule 72.3, "Assignment of § 1983 Prisoner Civil Cases to United States Magistrate Judges" and 28 U.S.C. § 636(b)(1). Unless all parties to this action file written consent to magistrate judge jurisdiction, Magistrate Judge Lewis will conduct all necessary post-service hearings and submit proposed findings of fact and recommendations for the disposition of all motions in this matter excluded from magistrate judge jurisdiction by 28 U.S.C. § 636(b)(1)(a). See S.D. CAL. CIVLR 72.3(e); Aldrich v. Bowen, 130 F.3d 1364 (9th Cir. 1997) and Nasca v. Peoplesoft, 160 F.3d 578, 580 (9th Cir. 1999) (both holding that magistrate judge has no jurisdiction to hear case when record contains no written consent of the parties); FED.R.CIV.P. 73(b); 28 U.S.C. § 636(c)(1).
II. Motion to Proceed In Forma Pauperis ("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 $250. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to prepay the entire fee only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A prisoner granted leave to proceed IFP however, remains obligated to pay the entire fee in installments, 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, as amended by the Prison Litigation Reform Act (" PLRA"), requires that each prisoner seeking leave to proceed IFP submit a "certified copy of [his] trust fund account statement (or institutional equivalent) . . . for the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2). Using these certified trust account statements, the Court must assess an initial payment of 20% of (a) the average monthly deposit, or (b) the average monthly balance in the account for the past six months, whichever is greater, and collect that amount as the prisoner's initial partial filing fee, unless he has no current assets with which to pay. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4);Taylor, 281 F.3d at 850. Thereafter, the institution having custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any month in which his account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Taylor, 281 F.3d at 847.
It is unclear at this time whether Plaintiff fits the definition of "prisoner" under the PLRA. Plaintiff cites to Page v. Torrey, 201 F.3d 1136 (9th Cir. 2000) (holding that person civilly-committed under California's Sexually Violent Predator statute is not a "prisoner" within the meaning of the PLRA). However, there is no other indication that Plaintiff is incarcerated at the Imperial County Jail pursuant to that statute. In any case, the trust account statement attached to the Motion to proceed IFP indicates a zero balance in Plaintiff's trust account, and the Court would impose no partial filing fee at this time irrespective of whether Plaintiff is subject to the provisions of the PLRA.
The Court has reviewed Plaintiff's affidavit of assets, just as it would for any other non-prisoner litigant seeking IFP status, and finds it is sufficient to show that he is unable to pay the fees or post securities required to maintain this action. See S.D. CAL. CIVLR 3.2(d). Accordingly, the Court GRANTS Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) and imposes no initial partial filing fee. If it is determined at a later time that Plaintiff is in fact a "prisoner" within the meaning of the PLRA, he will be obligated to pay the entire fee in installments, regardless of whether this action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) (2); Taylor, 281 F.3d at 847.
III. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2)
A complaint filed by any person proceeding in forma pauperis is subject to sua sponte dismissal to the extent it is "frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that "the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.").
"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (§ 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)."). However, while liberal construction is "particularly important in civil rights cases,"Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the Court may not "supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The district court should grant leave to amend, however, unless it determines that "the pleading could not possibly be cured by the allegation of other facts" and if it appears "at all possible that the plaintiff can correct the defect." Lopez, 203 F.3d at 1130-31.
A. Allegations in the Complaint
Plaintiff alleges that Defendant Deputy District Attorney Debra Owens, while on duty, violated his rights under state law, and pursuant to the Fourteenth Amendment's guarantee of equal protection, by committing slander and libel when she told Defendants Immigration and Customs Enforcement Agents Ballard and Harvey that Plaintiff had a sexually-transmitted disease. (Compl. at 3.) Plaintiff alleges it was Owens' intention that Ballard and Harvey would interview one of the two victims of the crimes for which Plaintiff was apparently being prosecuted to determine whether the victim exhibited symptoms of the same disease. (Id.) Plaintiff states that he does not have a sexually-transmitted disease, that the victim denied having any symptoms, and that Owens never verified with the Imperial County Jail medical staff whether Plaintiff had a disease. (Id.) As a result, Plaintiff claims he was subjected to defamation, libel, slander and infliction of emotional distress in that Owens' statement was made in front of Plaintiff's peers. (Id.)
B. Defamation Claims
Plaintiff first contends the actions of the Defendants violated his right to equal protection under the Fourteenth Amendment. Plaintiff has failed to adequately allege an equal protection violation because he has not alleged specific facts showing that Defendants acted with an intent or purpose to discriminate against him based upon his membership in a protected class. Barren, 152 F.3d at 1194; Navarro v. Block, 72 F.3d 712, 716 (9th Cir. 1995). There are no allegations whatsoever in the Complaint which would support an equal protection claim.
Plaintiff also states that his equal protection claims are brought pursuant to 42 U.S.C. §§ 1985 and 1986. Section 1985 proscribes, among other things, conspiracies to deprive any person of equal protection or equal privileges and immunities under the laws. See 42 U.S.C. § 1985(3); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1039 (9th Cir. 1990). Plaintiff's allegations must be sufficient to show: (1) a conspiracy to deprive him, as a member of a protected class, equal protection of the laws, (2) an act by one of the conspirators in furtherance of the conspiracy, and (3) a personal injury, property damage or deprivation of a right or privilege guaranteed to him as a citizen of the United States. Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980).
In addition, Plaintiff must allege racial or "perhaps otherwise class-based" discriminatory animus behind the conspirator's actions. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Moreover, Plaintiff's Complaint must contain facts describing the overt acts that Defendants committed in furtherance of the conspiracy. Id. at 102-03; Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988). Mere allegations that Defendants engaged in a conspiracy is insufficient to state a claim under section 1985. See Sanchez, 936 F.2d at 1039.
Plaintiff has failed to set forth any allegations that the Defendants acted pursuant to a conspiracy, and has failed to set forth factual allegations demonstrating there was any meeting of the minds between any of the Defendants to violate his rights. Even if Plaintiff could cure these defects, he has still failed to allege a discriminatory animus behind any action of any Defendant. Plaintiff has not alleged that any Defendant took any action with a racial or class-based discriminatory animus. Plaintiff has therefore failed to state a claim under section 1985 or section 1986. Karim-Panahi, 839 F.2d at 626 (holding that a claim can be stated under section 1986 only if the complaint contains a valid claim under section 1985).
To the extent Plaintiff also alleges a conspiracy to violate his equal protection rights under section 1983, he has also failed to state a claim. As with a conspiracy under section 1985, Plaintiff must allege facts demonstrating the Defendants had an agreement to deprive Plaintiff of his civil rights. Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998). Conclusory allegations of a conspiracy are insufficient to state a claim under section 1983. Id.; Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989). As with his section 1985 conspiracy claim, Plaintiff has failed to set forth any non-conclusory allegations that the Defendants reached an agreement to deprive Plaintiff of his civil rights. Accordingly, the Court dismisses Plaintiff's section 1983 conspiracy claims for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2).
A liberal construction of the Complaint requires the Court to also analyze the claim under the Fourteenth Amendment's Due Process Clause. The Due Process Clause of the Fourteenth Amendment protect persons from the deprivation of their life, liberty and property without due process of law. Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). Plaintiff is unable to demonstrate a due process violation unless he can identify "a liberty or property interest protected by the constitution" of which he was deprived. Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000).
The United States Supreme Court has held that injury to reputation alone does not implicate a liberty or property interest sufficient to invoke the protections of federal due process. Paul v. Davis, 424 U.S. 693, 712 (1976). The Ninth Circuit has made clear that a section 1983 claim cannot be predicated on injury to reputation alone, but must be accompanied by an allegation of an injury to a recognizable property or liberty interest in order to be cognizable, a requirement known as "defamation-plus." Cooper v. Dupnik, 924 F.2d 1520, 1532 (9th Cir. 1991). The Ninth Circuit has stated that: "there are two ways to state a cognizable § 1983 claim for defamation-plus: (1) allege that the injury to reputation was inflicted in connection with a federally protected right; or (2) allege that the injury to reputation caused the denial of a federally protected right." Herb Hallman Chevrolet v. Nash-Holmes, 169 F.3d 636, 645 (9th Cir. 1999) (citing Cooper, 924 F.3d at 1532) (emphasis in original).
There are no allegations in the Complaint that the alleged injury to Plaintiff's reputation from Defendant Owens' statement that Plaintiff may have a sexually-transmitted disease was connected with, or in any way caused, a violation of any right, or otherwise implicated any protected property or liberty interest. Therefore, Plaintiff has not stated a claim for denial of due process protected by the Fourteenth Amendment's Due Process Clause.
Additionally, to the extent Plaintiff alleges Defendant Owens made the statement in open court or otherwise in the performance of her duties as a prosecutor in Plaintiff's case, he seeks monetary damages against a Defendant who is immune from such relief. Criminal prosecutors are absolutely immune from civil damages suits premised upon acts committed within the scope of their official duties which are "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976); see also Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993); Burns v. Reed, 500 U.S. 478, 487-93 (1991). A prosecutor is immune even when the prosecutor's malicious or dishonest action deprived the defendant of his or her liberty. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). The only allegations in the Complaint against Defendant Owens appear to involve actions taken in the scope of her official duties.
For all these reasons, the Court finds that Plaintiff's Complaint fails to state a section 1983 claim upon which relief may be granted and/or seeks relief from a Defendant immune from such relief, and is therefore subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2). Although it appears unlikely that Plaintiff would be able to allege additional facts which might state a claim, the Court will nevertheless provide Plaintiff with an opportunity to amend his pleading in light of the standards set forth above. See Lopez, 203 F.3d at 1130-31.
IV. State Law Claims
Finally, to the extent Plaintiff intended to present claims based on state law, the Court at this time declines to exercise supplemental jurisdiction over these claims. "[I]n the usual case in which all federal law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state law claims." Acri v. Varian Assoc., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988) (identifying relevant factors as "judicial economy, convenience, fairness and comity.").) If Plaintiff includes state law claims in an amended complaint, the Court will reconsider at that time whether to accept supplemental jurisdiction over such claims. Plaintiff is cautioned that if he fails to state a federal claim in his amended petition, it is unlikely the Court will accept supplemental jurisdiction of these claims.
V. Conclusion and Order
Based on the foregoing, IT IS HEREBY ORDERED that:
(1) Plaintiff's Motion to Proceed IFP per 28 U.S.C. § 1915(a) is GRANTED;
(2) All claims in the Complaint against all Defendants are DISMISSED sua sponte without prejudice pursuant to 28 U.S.C. § 1915(e)(2), and,
(3) Plaintiff is GRANTED forty-five (45) days leave from the date this Order is stamped "Filed" to file a First Amended Complaint which addresses all the deficiencies of pleading set forth above. Plaintiff's Amended Complaint must be complete in itself without reference to his previously filed Complaint. See S.D. CAL. CIV L R 15.1. Defendants not named and all claims not re-alleged in the Amended Complaint will be considered waived.See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
IT IS SO ORDERED.