-POR Lute v. Gore et al, No. 3:2009cv02798 - Document 5 (S.D. Cal. 2010)
Court Description: ORDER granting 2 Plaintiff's Motion to Proceed in forma pauperis and denying without prejudice 4 Motion to Appoint Counsel. Plaintiff is GRANTED forty five (45) days leave from the date this Order is Filed in which to file a First Amended Co mplaint. (Order electronically transmitted to Matthew Cate, Secretary CDCR). Signed by Judge Jeffrey T. Miller on 1/27/2010. Form § 1983 complaint mailed to Plaintiff 1/28/2010. (All non-registered users served via U.S. Mail Service)(tkl) (av1).
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-POR Lute v. Gore et al Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ARTHUR FREDRICK LUTE, III, CDCR #AA-9561, Civil No. Plaintiff, 13 vs. 16 17 18 (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL PURSUANT TO 28 U.S.C. § 1915(e)(1) [Doc. No. 4]; and WILLIAM D. GORE, et al.; 19 20 21 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE, GARNISHING $350.00 BALANCE FROM PRISONER’S TRUST ACCOUNT [Doc. No. 2]; 14 15 09cv2798 JM (POR) Defendants. (3) DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b); AND 22 23 24 Arthur Fredrick Lute III (“Plaintiff”), a state prisoner currently incarcerated at the Richard J. 25 Donovan Correctional Facility located in San Diego, California, and proceeding pro se, has submitted 26 a civil action pursuant to 42 U.S.C. § 1983. Additionally, Plaintiff has filed a Motion to Proceed In 27 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2], along with a Motion for 28 Appointment of Counsel [Doc. No. 4]. 1 -1- 09cv2798 JM (POR) Dockets.Justia.com 1 I. 2 MOTION FOR APPOINTMENT OF COUNSEL [Doc. No. 4] 3 Plaintiff requests the appointment of counsel to assist him in prosecuting this civil action. The 4 Constitution provides no right to appointment of counsel in a civil case, however, unless an indigent 5 litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 6 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are granted discretion 7 to appoint counsel for indigent persons. This discretion may be exercised only under “exceptional 8 circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional 9 circumstances requires an evaluation of both the ‘likelihood of success on the merits and the ability of 10 the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.’ 11 Neither of these issues is dispositive and both must be viewed together before reaching a decision.” Id. 12 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 13 The Court denies Plaintiff’s request without prejudice, as neither the interests of justice nor 14 exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 15 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. 16 II. 17 MOTION TO PROCEED IFP [Doc. No. 2] 18 All parties instituting any civil action, suit or proceeding in a district court of the United States, 19 except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). 20 An action may proceed despite a plaintiff’s failure to prepay the entire fee only if the plaintiff is granted 21 leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th 22 Cir. 1999). However, prisoners granted leave to proceed IFP remain obligated to pay the entire fee in 23 installments, regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & 24 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 25 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a prisoner 26 seeking leave to proceed IFP must submit a “certified copy of the trust fund account statement (or 27 institutional equivalent) for the prisoner for the six-month period immediately preceding the filing of 28 the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From 2 -2- 09cv2798 JM (POR) 1 the certified trust account statement, the Court must assess an initial payment of 20% of (a) the average 2 monthly deposits in the account for the past six months, or (b) the average monthly balance in the 3 account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 4 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner must collect 5 subsequent payments, assessed at 20% of the preceding month’s income, in any month in which the 6 prisoner’s account exceeds $10, and forward those payments to the Court until the entire filing fee is 7 paid. See 28 U.S.C. § 1915(b)(2). 8 The Court finds that Plaintiff has no available funds from which to pay filing fees at this time. 9 See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing 10 a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no 11 assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 12 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 13 solely on a “failure to pay ... due to the lack of funds available to him when payment is ordered.”). 14 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP [Doc. No. 2] and assesses no initial 15 partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fees 16 mandated shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment 17 provisions set forth in 28 U.S.C. § 1915(b)(1). 18 III. 19 INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1) 20 Notwithstanding IFP status or the payment of any partial filing fees, the Court must subject each 21 civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening and order the sua 22 sponte dismissal of any case it finds “frivolous, malicious, failing to state a claim upon which relief may 23 be granted, or seeking monetary relief from a defendant immune from such relief.” 28 U.S.C. 24 § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. 25 § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 26 (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte 27 dismiss an in forma pauperis complaint that fails to state a claim). 28 Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte dismissal 3 -3- 09cv2798 JM (POR) 1 of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as amended, 28 U.S.C. 2 § 1915(e)(2) mandates that the court reviewing an action filed pursuant to the IFP provisions of section 3 1915 make and rule on its own motion to dismiss before directing the U.S. Marshal to effect service 4 pursuant to FED.R.CIV.P. 4(c)(3). See Calhoun, 254 F.3d at 845; Lopez, 203 F.3d at 1127; see also 5 McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997) (stating that sua sponte screening 6 pursuant to § 1915 should occur “before service of process is made on the opposing parties”). 7 “[W]hen determining whether a complaint states a claim, a court must accept as true all 8 allegations of material fact and must construe those facts in the light most favorable to the plaintiff.” 9 Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) 10 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”); Andrews, 398 F.3d at 1121. In 11 addition, the Court has a duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los 12 Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988), which is “particularly important in civil rights 13 cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro 14 se civil rights complaint, however, the court may not “supply essential elements of claims that were not 15 initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 16 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting 17 under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant 18 of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 19 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122 (2004); Haygood v. Younger, 20 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). 21 A. Rule 8 22 As a preliminary matter, the Court finds that Plaintiff’s Complaint fails to comply with Rule 8. 23 Specifically, Rule 8 provides that in order to state a claim for relief in a pleading it must contain “a 24 short and plain statement of the grounds for the court’s jurisdiction” and “a short and plain statement 25 of the claim showing that the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(1) & (2). Here, Plaintiff 26 sets forth a list of Defendants but fails to tie any of his factual allegations to any one of the named 27 Defendants. Plaintiff must clearly identify the alleged constitutional violations that he attributes to each 28 Defendant and the specific facts that give rise to the alleged violation. 4 -4- 09cv2798 JM (POR) 1 B. 2 Plaintiff alleges that he was “verbally abused and degraded.” (Compl. at 4.) To the extent that 3 Plaintiff is seeking to hold Defendants liable for harassing him, he has failed to state a claim. Verbal 4 harassment or verbal abuse by prison officials generally does not constitute a violation of the Eighth 5 Amendment. See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (harassment does not constitute 6 an Eighth Amendment violation); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) 7 (harassment in the form of vulgar language directed at an inmate is not cognizable under § 1983); 8 McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993) (verbal threats and name calling are not 9 actionable under § 1983). Thus, Plaintiff claims regarding verbal harassment are dismissed for failing 10 Verbal Harassment to state a claim upon which § 1983 relief can be granted. 11 C. Fourteenth Amendment Due Process Claims 12 Plaintiff also alleges that he was denied due process when he was placed in administrative 13 segregation (“Ad-Seg”) for five days. (See Compl. at 5.) “The requirements of procedural due process 14 apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of 15 liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569 (1972). State statutes and prison 16 regulations may grant prisoners liberty interests sufficient to invoke due process protections. Meachum 17 v. Fano, 427 U.S. 215, 223-27 (1976). However, the Supreme Court has significantly limited the 18 instances in which due process can be invoked. Pursuant to Sandin v. Conner, 515 U.S. 472, 483 19 (1995), a prisoner can show a liberty interest under the Due Process Clause of the Fourteenth 20 Amendment only if he alleges a change in confinement that imposes an “atypical and significant 21 hardship . . . in relation to the ordinary incidents of prison life.” Id. at 484 (citations omitted); Neal v. 22 Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997). 23 In this case, Plaintiff has failed to establish a liberty interest protected by the Constitution 24 because he has not alleged, as he must under Sandin, facts related to the conditions or consequences of 25 his placement in Ad-Seg which show “the type of atypical, significant deprivation [that] might 26 conceivably create a liberty interest.” Id. at 486. For example, in Sandin, the Supreme Court considered 27 three factors in determining whether the plaintiff possessed a liberty interest in avoiding disciplinary 28 segregation: (1) the disciplinary versus discretionary nature of the segregation; (2) the restricted 5 -5- 09cv2798 JM (POR) 1 conditions of the prisoner’s confinement and whether they amounted to a “major disruption in his 2 environment” when compared to those shared by prisoners in the general population; and (3) the 3 possibility of whether the prisoner’s sentence was lengthened by his restricted custody. Id. at 486-87. 4 Therefore, to establish a due process violation, Plaintiff must first show the deprivation imposed 5 an atypical and significant hardship on him in relation to the ordinary incidents of prison life. Sandin, 6 515 U.S. at 483-84. Plaintiff has failed to allege any facts from which the Court could find there were 7 atypical and significant hardships imposed upon him as a result of the Defendants’ actions. Plaintiff 8 must allege “a dramatic departure from the basic conditions” of his confinement that would give rise 9 to a liberty interest before he can claim a violation of due process. Id. at 485; see also Keenan v. Hall, 10 83 F.3d 1083, 1088-89 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998). He has not; 11 therefore the Court finds that Plaintiff has failed to allege a liberty interest in remaining free of ad-seg, 12 and thus, has failed to state a due process claim. See May, 109 F.3d at 565; Hewitt, 459 U.S. at 466; 13 Sandin, 515 U.S. at 486 (holding that placing an inmate in administrative segregation for thirty days “did 14 not present the type of atypical, significant deprivation in which a state might conceivably create a 15 liberty interest.”). 16 D. 17 Plaintiff names San Diego Sheriff William Gore as a Defendant in this matter but fails to set 18 forth any factual allegations with regard to Defendant Gore in the body of Plaintiff’s Complaint. Thus, 19 it appears that Plaintiff seeks to hold Defendant Gore liable in his supervisory capacity. However, 20 there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 21 1437-38 (9th Cir. 1993). Instead, “[t]he inquiry into causation must be individualized and focus on the 22 duties and responsibilities of each individual defendant whose acts or omissions are alleged to have 23 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo 24 v. Goode, 423 U.S. 362, 370-71 (1976)). In order to avoid the respondeat superior bar, Plaintiff must 25 allege personal acts by each individual Defendant which have a direct causal connection to the 26 constitutional violation at issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. 27 List, 880 F.2d 1040, 1045 (9th Cir. 1989). 28 Respondeat Superior Supervisory prison officials may only be held liable for the allegedly unconstitutional violations 6 -6- 09cv2798 JM (POR) 1 of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what extent they personally 2 participated in or directed a subordinate’s actions, and (2) in either acting or failing to act, they were an 3 actual and proximate cause of the deprivation of Plaintiff’s constitutional rights. Johnson v. Duffy, 588 4 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, however, Plaintiff’s Complaint fails to set forth 5 facts which might be liberally construed to support an individualized constitutional claim against 6 Defendant Gore. 7 Accordingly, the Court finds that Plaintiff’s Complaint fails to state a section 1983 claim upon 8 which relief may be granted, and is therefore subject to dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(b) 9 & 1915A(b). The Court will provide Plaintiff with an opportunity to amend his pleading to cure the 10 defects set forth above. Plaintiff is warned that if his amended complaint fails to address the 11 deficiencies of pleading noted above, it may be dismissed with prejudice and without leave to amend. 12 IV. 13 CONCLUSION AND ORDER 14 Good cause appearing, IT IS HEREBY ORDERED that: 15 1. 16 prejudice. 17 2. 18 19 Plaintiff’s Motion for Appointment of Counsel [Doc. No. 4] is DENIED without Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2] is GRANTED. 3. The Secretary of California Department of Corrections and Rehabilitation, or his 20 designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee owed in 21 this case by collecting monthly payments from the account in an amount equal to twenty percent (20%) 22 of the preceding month’s income and forward payments to the Clerk of the Court each time the amount 23 in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE 24 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 25 4. The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate, 26 Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, 27 Sacramento, California 95814. 28 IT IS FURTHER ORDERED that: 7 -7- 09cv2798 JM (POR) 1 5. Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. 2 §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave from the 3 date this Order is “Filed” in which to file a First Amended Complaint which cures all the deficiencies 4 of pleading noted above. Plaintiff’s Amended Complaint must be complete in itself without reference 5 to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants not named and all claims not re- 6 alleged in the Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 7 565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended Complaint fails to state a claim upon which 8 relief may be granted, it may be dismissed without further leave to amend and may hereafter be 9 counted as a “strike” under 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th 10 Cir. 1996). 11 6. 12 IT IS SO ORDERED. 13 14 15 The Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff. DATED: January 27, 2010 Hon. Jeffrey T. Miller United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 8 -8- 09cv2798 JM (POR)
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