1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTIAN MICHAEL CLAYBORN, Case No. 25-cv-1739-BAS-DDL Booking #24722983, 12

ORDER:

Plaintiff, 13 vs. (1) GRANTING MOTION TO 14

PROCEED IN FORMA PAUPERIS

15 (ECF No. 2); AND

SAN DIEGO POLICE DEP’T,

16 (2) DISMISSING COMPLAINT 17 WITHOUT PREJUDICE FOR Defendant.

FAILURE TO STATE A CLAIM

18

PURSUANT TO 28 U.S.C.

19 §§ 1915(e)(2)(B) AND 1915A(b) 20 21 I. INTRODUCTION 22 Plaintiff Christian Michael Clayborn (“Plaintiff” or “Clayborn”), a detainee 23 proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983, along 24 with a motion to proceed in forma pauperis (“IFP”). (See ECF Nos. 1, 2.) In the 25 Complaint, Clayborn alleges his constitutional rights were violated when officers with the 26 San Diego Police Department used excessive force against him. (ECF No. 1 at 3.) For 27 the reasons discussed below, the Court grants Plaintiff’s IFP motion and dismisses the 28 Complaint without prejudice and with leave to amend. 1 II. MOTION TO PROCEED IFP 2 Generally, parties instituting any civil action in a district court of the United States, 3 must pay a filing fee of $405.1 See 28 U.S.C. § 1914(a). A party may initiate a civil action 4 without prepaying the required filing fee if the Court grants leave to proceed IFP based on 5 indigency. 28 U.S.C. § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 6 2007). 7 To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit 8 regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 9 Cir. 2015). Prisoners must also submit a “certified copy of the [prisoner’s] trust fund 10 account statement (or institutional equivalent) for . . . the 6-month period immediately 11 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the certified trust 12 account statement, the Court assesses an initial payment of 20% of (a) the average monthly 13 deposits in the account for the past six months, or (b) the average monthly balance in the 14 account for the past six months, whichever is greater, unless the prisoner has no assets. See 15 28 U.S.C. §§ 1915(b)(1) & (4). Prisoners who proceed IFP must repay the entire fee in 16 installments regardless of whether their action is ultimately dismissed. 28 U.S.C. 17 § 1915(b)(2); Bruce v. Samuels, 577 U.S. 82, 84 (2016). 18 In support of his IFP Motion, Clayborn has provided a copy of his prison certificate 19 and trust account statement. (See ECF No. 2.) During the six months prior to filing suit, 20 Clayborn had an average monthly balance of $6.67 and average monthly deposits of 21 $20.00; and at the time he filed suit he had an available account balance of $40.03. (Id. at 22 5.) Accordingly, the Court GRANTS Plaintiff’s IFP motion and assesses an initial partial 23 filing fee of $4.00 pursuant to 28 U.S.C. § 1915(b)(1). This initial fee need be collected, 24 however, only if sufficient funds are available in Plaintiff’s account at the time this Order 25

26 1 Civil litigants must pay an administrative fee of $55 in addition to the $350 filing fee. See 28 27 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does not apply to persons granted leave to proceed 28 1 is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 2 prohibited from bringing a civil action or appealing a civil action or criminal judgment for 3 the reason that the prisoner has no assets and no means by which to pay the initial partial 4 filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety- 5 valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . 6 due to the lack of funds available to him when payment is ordered.”). Pursuant to 28 U.S.C. 7 § 1915(b), the agency having custody of Plaintiff will forward payments to the Clerk in 8 installment provisions until the $350 statutory fee is paid in full. 9 III. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 10 A. Legal Standards 11 Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the Court must screen a 12 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous, 13 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 14 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 15 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has 16 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 17 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 18 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a 19 complaint to “contain sufficient factual matter . . . to state a claim to relief that is plausible 20 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 21 While detailed factual allegations are not required, “[t]hreadbare recitals of the elements 22 of a cause of action, supported by mere conclusory statements, do not suffice” to state a 23 claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully- 24 harmed me accusation[s]” fall short of meeting this plausibility standard. Id. 25 B. Plaintiff’s Allegations 26 Clayborn alleges that on June 3, 2024, he was walking when San Diego Police 27 Officer Tani “flashed his vehicle’s lights” at him. (ECF No. 1 at 4.) The officer did not 28 seek to detain Clayborn at that time, so he kept walking. (Id.) When another police car 1 arrived, Clayborn threw his flashlight and dropped his bag so he would be “fully unarmed.” 2 (Id.) He then raised his hands above his head. Officer Tani instructed Clayborn not to reach 3 for anything and he complied. (Id.) 4 Plaintiff was attempting to tell officers he could not lie down on the sidewalk 5 because it was “contaminated with feces,” when a police canine named “Hoddo” attacked 6 him. (Id.) The dog “went for [his] head” and “ripped” Clayborn’s scalp and “gouged” his 7 eye. (Id.) A second bite “tore directly into” Plaintiff’s bicep and the dog stayed clamped 8 down on his arm for an “excessive amount of time.” (Id.) Meanwhile, Officers Tani, 9 Golden and Langley punched and kicked Clayborn while he was on the ground with his 10 hands behind his back. (Id. at 3, 4.) The officers kept telling Plaintiff to “stop resisting” 11 even though he was not resisting. (Id.) 12 After officers handcuffed Clayborn, Officer Klos placed him in a restraint device 13 called “The Wrap” and put a “spit mask” over his face. (Id. at 3, 5.) Clayborn was then 14 placed in a police car, after which Officer Tani took him on a “wild ride” for two hours. 15 (Id. at 5.) During that time, Tani drove at an excessive speed, particularly when making 16 turns, to “inflict even more harm” on Plaintiff. (Id.) 17 Eventually, Clayborn was taken to a hospital where he was offered a tetanus shot but 18 was not treated for his head and arm injuries. (Id.) As a result of his injuries, Clayborn 19 suffers with “nerve damage, trauma and mistrust.” (Id.) He states that the above events 20 were captured on body cameras worn by officers. (Id. at 3, 5.) 21 Clayborn argues he was subjected to excessive force in violation of his constitutional 22 rights. Id. at 3. He names the San Diego Police Department (“SDPD”) as the sole 23 defendant, and he seeks $4,000,000 in compensatory and punitive damages. (Id. at 2, 9.) 24 C. Discussion 25 To state a claim under § 1983, a plaintiff must plausibly allege “both (1) deprivation 26 of a right secured by the Constitution and laws of the United States, and (2) that the 27 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 28 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 1 1. Applicable Constitutional Right 2 Clayborn argues Defendants’ use of force violated his right to be “free[] from cruel 3 and unusual punishment.” (ECF No. 1 at 3.) While this reference suggests Plaintiff relies 4 on the Eighth Amendment as the constitutional basis for his excessive force claim, because 5 the incident occurred during Clayborn’s seizure and arrest, the Court liberally construes 6 his claim under the Fourth Amendment. See Graham v. Conner, 490 U.S. 386, 393–95 & 7 n.10 (1989) (stating that although excessive force claims may arise under the Fourth or 8 Eighth Amendment, the Fourth Amendment is implicated when an excessive force claim 9 arises in the context of an arrest or investigatory stop of a free citizen, while the Eighth 10 Amendment is implicated when such a claim arises in the context of a post-conviction 11 prison encounter); see also Mendoza v. Jimmenez, 2018 WL 5761427, at *2 (S.D. Cal. 12 2018) (liberally construing pro se plaintiff’s claim that alleged excessive force during his 13 arrest violated his “right to be free from cruel and unusual punishment” under the Fourth 14 Amendment instead). The test for such Fourth Amendment excessive force claims is 15 whether the defendant’s actions were “objectively reasonable in light of the facts and 16 circumstances confronting them.” Graham, 490 U.S. at 396–97 (internal citations 17 omitted). 18 2. San Diego Police Department 19 As noted above, Clayborn names the SDPD as the only Defendant. Local 20 government entities are “persons” subject to liability under 42 U.S.C. § 1983 where official 21 policy or custom causes a constitutional tort. See Monell v. Dep’t of Social Servs., 436 22 U.S. 658, 690 (1978). However, a local government entity may not be held vicariously 23 liable for the unconstitutional acts of its employees under the theory of respondeat superior. 24 See Board of Cty. Comm’rs. of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 25 436 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). 26 A municipal entity is responsible only “when execution of a government’s policy or 27 custom inflicts the injury.” Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 28 2006). Thus, to state a claim for municipal liability, a plaintiff must plausibly allege “(1) 1 [he] had a constitutional right of which he was deprived; (2) the municipality had a policy; 2 (3) the policy amounts to deliberate indifference to his constitutional right; and (4) the 3 policy is the moving force behind the constitutional violation.” Gordon v. Cty. of Orange, 4 6 F.4th 961, 973 (9th Cir. 2021) (internal quotation marks omitted). And here, Clayborn 5 alleges no policy or custom of the SDPD, and no facts that could support a plausible Monell 6 claim against the San Diego Police Department.2 7 Therefore, the Court finds Clayborn has failed to state a claim against the San Diego 8 Police Department and as such, the Complaint is dismissed. See 28 U.S.C. §§ 1915(e)(2) 9 and 1915A(b). 10 D. Leave to Amend 11 Given Plaintiff’s pro se status, the Court grants him leave to amend his complaint. 12 See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not 13 dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the 14 deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar v. 15 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 16 IV. CONCLUSION AND ORDER 17 Accordingly, the Court: 18 1. GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2); 19 2. DIRECTS the Watch Commander at the George Bailey Detention Facility, 20 or their designee, to collect from Plaintiff’s trust account the $4.00 initial filing fee 21 assessed, if those funds are available at the time this Order is executed, and forward 22 23 24 2 While the Complaint includes specific factual allegations against various individual officers, see 25 ECF No. 1 at 3–5, Clayborn does not identify any of these individuals as defendants. The Federal Rules of Civil Procedure require that each defendant be named in the caption of the complaint. Fed. R. Civ. P. 26 10(a). If Plaintiff intends to pursue constitutional claims against these individuals, he must name them as defendants in the caption of any amended pleading pursuant to Rule 10(a). See e.g. Martinez v. Davey, 27 2018 WL 898153, at *5 (E.D. Cal. 2018) (dismissing, among other reasons, because “Plaintiff makes allegations against numerous non-party individuals not named in the caption of the complaint” in violation 28 1 || whatever balance remains of the full $350 owed in monthly payments in an amount equal 2 twenty percent (20%) of the preceding month’s income to the Clerk of the Court each 3 the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2); 4 3. DIRECTS the Clerk of the Court to serve a copy of this Order on the Facility 5 ||Commander, George Bailey Detention Facility, 446 Alta Rd. Ste. 5300, San Diego, 6 || California, 92158; 7 4. DISMISSES Plaintiffs Complaint in its entirety without prejudice for failing 8 |/to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b); and 9 5. GRANTS Plaintiff sixty (60) days leave from the date of this Order in which 10 ||to file a First Amended Complaint which cures the deficiencies of pleading noted in this 11 || Order. Plaintiff's Amended Complaint must be complete by itself without reference to his 12 original Complaint. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., 13 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 14 || original.”’); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 15 dismissed with leave to amend which are not re-alleged in an amended pleading may be 16 || “considered waived if not repled.’’). 17 If Plaintiff fails to timely file a First Amended Complaint, the Court will enter a final 18 || Order dismissing this civil action based both on failure to state a claim upon which relief 19 || can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(i1) and § 1915A(b)(1), and failure to 20 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427 21 || F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity 22 ||to fix his complaint, a district court may convert the dismissal of the complaint into 23 dismissal of the entire action.”). 24 IT IS SO ORDERED. 25 26 || DATED: November 17, 2025 ( Yili Duhark 07 H@én. Cynthia Bashant, Chief Judge United States District Court 28 7