1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO JAVIER MOTA, Case No.: 3:20-cv-1863-LAB-RBM Booking #19742313, 12

ORDER

Plaintiff, 13 vs. 1) GRANTING MOTION TO 14

PROCEED IN FORMA PAUPERIS

15 (ECF No. 2);

JASON WHITE; JOSEPH

16 PUTULOWSKI; KAIKO, 2) DISMISSING CLAIMS AND 17 Defendants. DEFENDANTS PURSUANT TO 28

U.S.C.

18 § 1915(e)(2)(B)(ii) AND 28 U.S.C. § 19 1915A(b);

20

AND

21 3) STAYING CASE 22 23 24 25 Francisco Javier Mota (“Plaintiff”), currently incarcerated at San Diego County 26 Sheriff’s Department’s Vista Detention Facility (“VDF”), and proceeding pro se, filed this 27 civil rights action pursuant to 42 U.S.C. Section 1983. (See Compl, ECF No. 1.) Plaintiff 28 did not prepay the civil filing fee required by 28 U.S.C. Section 1914(a) at the time he 1 submitted his Complaint, but instead has filed Motion to Proceed In Forma Pauperis 2 (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (See ECF No. 2.) 3 I. Motion to Proceed In Forma Pauperis 4 All parties instituting any civil action, suit or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 8 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 9 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is 10 granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or 11 “installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 12 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately 13 dismissed. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 14 Cir. 2002). 15 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 16 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 17 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 18 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 19 trust account statement, the Court assesses an initial payment of 20% of (a) the average 20 monthly deposits in the account for the past six months, or (b) the average monthly balance 21 in the account for the past six months, whichever is greater, unless the prisoner has no 22 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 23 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 24 month’s income, in any month in which his account exceeds $10, and forwards those 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Oct. 1, 2019)). The additional $50 administrative fee does not apply to persons granted leave to proceed 28 1 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 2 136 S. Ct. at 629. 3 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 4 account statement pursuant to 28 U.S.C. Section 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2. 5 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account activity, as 6 well as the attached prison certificate verifying his available balances. (See ECF No. 9, at 7 6-8.) These documents show that Plaintiff carried an average monthly balance of 8 $100.00 and had average monthly deposits to his trust account of $30.00 for the six 9 months preceding the filing of this action, Plaintiff had an available balance of just 10 $10.68 at the time of filing. (See id.) 11 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 12 declines to impose the initial partial filing fee pursuant to 28 U.S.C. Section 1915(b)(1) 13 because his prison certificate indicates he may currently have “no means to pay it.” See 28 14 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from 15 bringing a civil action or appealing a civil action or criminal judgment for the reason that 16 the prisoner has no assets and no means by which to pay the initial partial filing fee.”); 17 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. Section 1915(b)(4) acts as a “safety-valve” 18 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to 19 the lack of funds available to him when payment is ordered.”). Instead, the Court directs 20 the Watch Commander of VDF, or his designee, to collect the entire $350 balance of the 21 filing fees required by 28 U.S.C. Section 1914 and to forward them to the Clerk of the 22 Court pursuant to the installment payment provisions set forth in 28 U.S.C. Section 23 1915(b)(1). 24 II. Sua Sponte Screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 25 1915A(b) 26 A. Standard of Review 27 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 28 answer screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b). Under 1 these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion 2 of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 3 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 4 (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th 5 Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The purpose of [screening] is ‘to 6 ensure that the targets of frivolous or malicious suits need not bear the expense of 7 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler 8 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 9 “The standard for determining whether a plaintiff has failed to state a claim upon 10 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule 11 of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 12 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 13 Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the familiar 14 standard applied in the context of failure to state a claim under Federal Rule of Civil 15 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual 16 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 17 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 18 1121. 19 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 20 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 21 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 22 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 23 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 24 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 25 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 26 B. Plaintiff’s Factual Allegations 27 Plaintiff alleges that Defendants—Escondido Police Officers White and 28 /// 1 Putulowski, and a police service dog, Kaiko—violated his Eighth Amendment and 2 Fourteenth Amendment rights when they used excessive force to arrest Plaintiff on April 3 23, 2019. (See Compl. at 3, 8.) 4 Defendants responded to a report that Plaintiff was wandering around an isolated 5 lot in Escondido in his vehicle. (See Compl. at 5.) Defendant White was the first to 6 arrive and identified Plaintiff as the driver. (See id.) Shortly thereafter, Defendant 7 Putulowski arrived with his service dog, Defendant Kaiko. (See id.) Although Plaintiff 8 does not allege the details of the events that followed in his Complaint, in the course of 9 arresting Plaintiff, Defendant White allegedly fired a “shotgun or non[-]lethal projectile 10 round [at] Plaintiff,” which caused injuries. (See id. at 3.) Plaintiff alleges that he was 11 hit by five beanbag rounds. (See id.) Subsequently, Defendant Putulowski released 12 Defendant Kaiko, who “bit and [tore Plaintiff’s] left for[e]arm,” causing scarring and 13 nerve damage, among other injuries. (See id.) Plaintiff alleges that he was unarmed and 14 collapsed in his car through the entire incident. (See id.) 15 Plaintiff seeks $1 million each in compensatory and punitive damages, and 16 dismissal with prejudice of the pending state charges against him. (See id. at 4.) 17 C. Analysis 18 1. Claims against Defendant Kaiko 19 Plaintiff’s claims against Defendant Kaiko be dismissed. Because liability under 20 Section 1983 is limited to “person[s]” who violate constitutional rights under color of 21 state law, see 42 U.S.C. § 1983, a dog is not a proper defendant in a Section 1983 case. 22 See Stuart v. Mills, No. CV 16-02158-GHK (RAO), 2016 WL 8738859, at *1 (C.D. Cal. 23 Sept. 21, 2016) (“A dog is not a proper defendant in litigation under § 1983.” (collecting 24

25 26 2 The Court’s docket currently identifies Defendant Putulowski as Defendant “Pulutowski,” and Plaintiff appears to use the two spellings interchangeably. (See Compl. at 2-3.) According to the police reports 27 attached as exhibits to Plaintiff’s Complaint, however, the Court finds the correct spelling is “Putulowski.” (See id. at 5.) Accordingly, the Court DIRECTS the Clerk of the Court to correct the 28 1 cases)); see also Rodriguez v. Police Dog Kubo, No. 1:11cv01371 LJO DLB, 2011 WL 2 3687608, at *2 (E.D. Cal. Aug. 23, 2011) (“A police dog is not a ‘person’ subject to 3 liability under § 1983.”). Accordingly, Plaintiff’s claims against Defendant Kaiko are 4 dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 5 1915(e)(2)(B)(ii); 28 U.S.C. 1915A(b). While the Court would ordinarily grant Plaintiff 6 leave to amend in light of his pro se status, the Court finds that granting leave to amend 7 with respect to Defendant Kaiko would be futile. See Lopez, 203 F.3d at 1127. 8 Accordingly, the claims against Defendant Kaiko are dismissed without leave to amend. 9 2. Younger Abstention 10 Federal courts must abstain from interfering with pending state court proceedings 11 absent extraordinary circumstances. See Younger v. Harris, 401 U.S. 37, 53-54 (1971). 12 In fact, “federal-court abstention is required” when there is a “parallel, pending state 13 criminal proceeding.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013). “A 14 court may consider sua sponte whether Younger abstention should be invoked at any 15 point in the litigation.” Renteria v. San Diego Police Dep’t, No. 19-cv-00952-BAS-JLB, 16 2019 WL 2436565, at *4 (S.D. Cal. June 11, 2019) (citing H.C. ex rel. Gordon v. Koppel, 17 203 F.3d 610, 613 (9th Cir. 2000)) (citations omitted) 18 Younger abstention is appropriate when three conditions are satisfied: (1) state 19 criminal proceedings are ongoing, (2) those proceedings implicate important state 20 interests, and (3) state proceedings provide an adequate opportunity to raise federal 21 questions. See Middlesex Cnty. Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 22 432 (1982). “[O]nce the three Middlesex elements are satisfied, the court does not 23 automatically abstain, but abstains only if there is a Younger-based reason to abstain— 24 i.e., if the court’s action would enjoin or have the practical effect of enjoining, ongoing 25 state court proceedings.” AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1149 (9th 26 Cir. 2007) (emphasis in original) (citing Gilbertson v. Albright, 381 F.3d 965, 978 (9th 27 Cir. 2004)). 28 As currently alleged, the three conditions for Younger abstention are satisfied. 1 First, Plaintiff alleges that his state criminal case is ongoing, and he requests that this 2 Court order that the criminal charges against him be “[d]ismiss[ed] . . . with prejudice no 3 refile [sic].” (Compl. at 4.) Second, the criminal proceedings against Plaintiff implicate 4 the State’s important interests in enforcing its criminal laws. See Sprint, 571 U.S. at 72. 5 Third, there is no procedural bar to Plaintiff raising claims of excessive force in his state 6 criminal proceedings. See Voychuk v. California, No. 2:05CV2007-MCE-GGH, 2006 7 WL 738796, at *2 (E.D. Cal. Mar. 22, 2006) (concluding that state proceedings provided 8 an adequate opportunity to raise federal questions regarding excessive force (citing 9 People v. Olguin, 119 Cal. App. 3d 39, 46 (1981))). 10 As mentioned, however, Younger abstention is not always required when these 11 three conditions are satisfied. Abstention is nevertheless required in this case because 12 evaluating Plaintiff’s excessive force claims at this time would have the practical effect 13 of intruding on the criminal proceedings against Plaintiff. According to the San Diego 14 County Sheriff’s Department’s website, Plaintiff faces pending charges for, among other 15 things, Obstructing an Executive Officer in violation of California Penal Code Section 16 69. See 17 https://apps.sdsheriff.net/wij/wijDetail.aspx?BookNum=%2f8aC4KmgTXRE92t3sL2%2f 18 %2byg7tQvQY4q%2f6PcGlcD2t%2fo%3d (last accessed November 30, 2020).3 As 19 other courts have recognized, Younger abstention is warranted when a plaintiff asserts 20 Section 1983 claims of excessive force related to their arrest in federal court while 21 simultaneously facing pending criminal charges of resisting arrest or a similar offense in 22 state court. See, e.g., Jones v. Cnty. of Contra Costa, No. 13-cv-05552-TEH, 2014 WL 23 1411205, at *3 (N.D. Cal. Apr. 11, 2014) (“Any ruling by this Court would . . . 24 necessarily intrude on the state criminal matter also seeking to pass judgment on 25

26 3 The Court may take judicial notice of public records available on online inmate locators. See, e.g., 27 Turner v. Cnty. of San Diego, No. 3:20-cv-00163-JAH-AHG, 2020 WL 905633, at *1 n.1 (S.D. Cal. Feb. 25, 2020) (taking judicial notice of detainee’s booking information available on San Diego 28 1 [plaintiff’s] resistance.” (citing Cal. Penal Code § 69)); see also Whitton v. Mortimer, No. 2 2:15-cv-01399-APG-PAL, 2016 WL 3179462, at *4 (D. Nev. Apr. 28, 2016) (staying 3 Section 1983 excessive force claims where plaintiff faced prosecution under Nevada law 4 for resisting arrest because “[t]o rule on the constitutional issue in these circumstances 5 would impermissibly risk interfering with the State of Nevada’s administration of its 6 judicial system.”). 7 Plaintiff seeks both damages and injunctive relief in this case. (See Compl. at 4.) 8 Although “in most situations Younger abstention requires dismissal,” “[t]he Ninth 9 Circuit . . . has held that where a plaintiff seeks money damages rather than injunctive 10 relief, the Court should stay the action until the termination of the state court proceedings 11 rather than dismiss the action without prejudice.” See Davis v. O’Connor, No. 18cv2824- 12 LAB (LL), 2019 WL 290571, at *2 (S.D. Cal. Jan. 23, 2019) (citing Gilbertson, 381 F.3d 13 at 981-82). Dismissal is the appropriate remedy, however, with respect to claims for 14 injunctive relief. See Gilbertson, 381 F.3d at 981. As a result, Plaintiff’s claim seeking 15 dismissal of the state criminal charges against him must be dismissed with prejudice. See 16 id. (stating that abstention from injunctive relief claims under Younger should result in 17 “permanent[]” dismissal (emphasis omitted)). 18 Depending on the outcome of Plaintiff’s state criminal case he may be able to state 19 claims for damages against Defendants White and Putulowski in their individual 20 capacities, but such claims may not continue at least until after the criminal case against 21 him is resolved. See Wallace v. Kato, 549 U.S. 384, 394 (2007) (“If the plaintiff is 22 ultimately convicted, and if the stayed civil suit would impugn that conviction, Heck [v. 23 Humphrey, 512 U.S. 477 (1994),] will require dismissal; otherwise, the civil action will 24 proceed, absent some other bar to suit.”). Accordingly, the Court STAYS this action 25 pending the termination of the underlying state criminal proceedings. See Gilbertson, 26 381 F.3d at 981-82. Plaintiff shall report to the Court regarding the outcome of the 27 criminal proceedings and whether or not he intends to proceed with this action within 28 thirty (30) days after their conclusion, which includes the conclusion of any direct 1 review on appeal. See New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 2 491 U.S. 350, 369 (1989) (“For Younger purposes, the State’s trial-and-appeals process is 3 treated as a unitary system, and for a federal court to disrupt its integrity by intervening in 4 mid-process would demonstrate a lack of respect for the State as sovereign.”). If there is 5 no longer a need to abstain at that time, the Court will reopen this action, lift the stay, and 6 issue a further order screening Plaintiff’s Complaint pursuant to 28 U.S.C. Section 7 1915(e)(2) and 28 U.S.C. Section 1915A(b) and/or directing the U.S. Marshals to affect 8 service on Defendants White and Putulowski on Plaintiff’s behalf if necessary. Absent a 9 compelling reason, no motions will be permitted during the pendency of the stay, and 10 because the Court has not ordered service of process upon Defendants, Plaintiff may not 11 seek discovery in this Court while the case is stayed. See Fed. R. Civ. P. 26(d)(1) 12 (specifying that “[a] party may not seek discovery from any source” until holding the 13 initial discovery planning conference required by Federal Rule of Civil Procedure 26(f)). 14 III. Conclusion and Orders 15 Good cause appearing, the Court: 16 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. Section 17 1915(a) (ECF No. 2). 18 2. DIRECTS the Watch Commander of VDF, or his designee, to collect from 19 Plaintiff’s inmate trust account the $350 filing fee owed in this case by garnishing 20 monthly payments in an amount equal to twenty percent (20%) of the preceding month’s 21 income and forwarding those payments to the Clerk of the Court each time the amount in 22 the account exceeds $10 pursuant to 28 U.S.C. Section 1915(b)(2). ALL PAYMENTS 23 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 24 THIS ACTION. 25 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 26 Commander, Vista Detention Facility, 325 S. Melrose Dr., Vista, CA 92081 and to 27 correct the spelling of Defendant Joseph Putulowski’s name in the case caption. 28 /// 1 4. DISMISSES without leave to amend Plaintiff's claims against Defendant 2 || Kaiko and his claim for an order directing dismissal of the state criminal charges against 3 ||him for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. 4 ||Section 1915(e)(2)(B)(ii) and Section 1915A(b). The Court further DIRECTS the Clerk 5 || of the Court to terminate Defendant Kaiko as a party to this action. 6 5. STAYS this action pending the termination of Plaintiff's underlying state 7 || criminal proceedings and DIRECTS Plaintiff to report to the Court within thirty (30) days 8 the conclusion of his criminal proceedings, which includes the conclusion of any 9 || direct review on appeal, of the outcome of the criminal proceedings and whether or not he 10 |/intends to proceed with this action. If there is no longer a need to abstain, the Court will 11 |/reopen this action and issue a further order screening Plaintiff's Complaint pursuant to 28 12 ||U.S.C. Section 1915(e)(2) and 28 U.S.C. Section 1915A(b) and/or directing the U.S. 13 || Marshals to affect service on Defendants White and Putulowski on Plaintiff's behalf. 14 6. DIRECTS the Clerk of the Court to note that this action is stayed and to 15 || administratively close the case. 16 IT IS SO ORDERED. 17 || Dated: December 1, 2020 / ub / 4 ( 1 Vy 18 Hon. Larry Alan Burns 19 Chief United States District Judge 20 21 22 23 24 25 26 27 28 10