-POR Hudson v. Donovan et al, No. 3:2010cv00191 - Document 5 (S.D. Cal. 2010)
Court Description: ORDER granting 3 Motion for Leave to Proceed in forma pauperis. Order electronically transmitted to Matthew Cate, Secretary CDCR). Plaintiff's Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A (b). However, Plaintiff is GRANTED forty five (45) days' leave from the date this Order is Filed in which to file a First Amended Complaint. The Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff. Signed by Judge Jeffrey T. Miller on 3/8/2010; Form mailed 3/8/2010 (All non-registered users served via U.S. Mail Service)(tkl) (av1).
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-POR Hudson v. Donovan et al Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 CEDRICK MARQUET HUDSON, CDCR #F-77052, Civil No. Plaintiff, 13 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. 4]; AND 14 15 vs. 16 17 18 19 10cv0191 JM (POR) (2) DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b) R.J. DONOVAN; DENNIS MORRIS; ELIAS CONTRERAS; 20 21 Defendants. 22 23 24 Cedrick Marquet Hudson (“Plaintiff”), a state prisoner currently incarcerated at the Richard J. 25 Donovan Correctional Facility (“RJD”) located in San Diego, California, and proceeding pro se, has 26 submitted a civil action pursuant to 42 U.S.C. § 1983. Additionally, Plaintiff has filed a Motion to 27 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [Doc. No. 4]. 28 I. 1 10cv0191 JM (POR) Dockets.Justia.com 1 MOTION TO PROCEED IFP [Doc. No. 4] 2 All parties instituting any civil action, suit or proceeding in a district court of the United States, 3 except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). 4 An action may proceed despite a plaintiff’s failure to prepay the entire fee only if the plaintiff is granted 5 leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th 6 Cir. 1999). However, prisoners granted leave to proceed IFP remain obligated to pay the entire fee in 7 installments, regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & 8 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a prisoner 10 seeking leave to proceed IFP must submit a “certified copy of the trust fund account statement (or 11 institutional equivalent) for the prisoner for the six-month period immediately preceding the filing of 12 the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From 13 the certified trust account statement, the Court must assess an initial payment of 20% of (a) the average 14 monthly deposits in the account for the past six months, or (b) the average monthly balance in the 15 account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 16 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner must collect 17 subsequent payments, assessed at 20% of the preceding month’s income, in any month in which the 18 prisoner’s account exceeds $10, and forward those payments to the Court until the entire filing fee is 19 paid. See 28 U.S.C. § 1915(b)(2). 20 The Court finds that Plaintiff has no available funds from which to pay filing fees at this time. 21 See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing 22 a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no 23 assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 24 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 25 solely on a “failure to pay ... due to the lack of funds available to him when payment is ordered.”). 26 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP [Doc. No. 4] and assesses no initial 27 partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fees 28 mandated shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment 2 10cv0191 JM (POR) 1 provisions set forth in 28 U.S.C. § 1915(b)(1). 2 II. 3 INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1) 4 Notwithstanding IFP status or the payment of any partial filing fees, the Court must subject each 5 civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening and order the sua 6 sponte dismissal of any case it finds “frivolous, malicious, failing to state a claim upon which relief may 7 be granted, or seeking monetary relief from a defendant immune from such relief.” 28 U.S.C. 8 § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. 9 § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 10 (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte 11 dismiss an in forma pauperis complaint that fails to state a claim). 12 Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte dismissal 13 of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as amended, 28 U.S.C. 14 § 1915(e)(2) mandates that the court reviewing an action filed pursuant to the IFP provisions of section 15 1915 make and rule on its own motion to dismiss before directing the U.S. Marshal to effect service 16 pursuant to FED.R.CIV.P. 4(c)(3). See Calhoun, 254 F.3d at 845; Lopez, 203 F.3d at 1127; see also 17 McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997) (stating that sua sponte screening 18 pursuant to § 1915 should occur “before service of process is made on the opposing parties”). 19 “[W]hen determining whether a complaint states a claim, a court must accept as true all 20 allegations of material fact and must construe those facts in the light most favorable to the plaintiff.” 21 Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) 22 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”); Andrews, 398 F.3d at 1121. In 23 addition, the Court has a duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los 24 Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988), which is “particularly important in civil rights 25 cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro 26 se civil rights complaint, however, the court may not “supply essential elements of claims that were not 27 initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 28 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting 3 10cv0191 JM (POR) 1 under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant 2 of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 3 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122 (2004); Haygood v. Younger, 4 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). 5 B. Eighth Amendment Claims 6 Plaintiff claims that his Eighth Amendment rights have been violated due to conditions at RJD. 7 (See Compl. at 3.) For example, Plaintiff alleges that there is overcrowding in the prison. (Id.) 8 However, allegations of overcrowding, without additional facts, are insufficient to state a claim under 9 the Eighth Amendment. See Rhodes v. Chapman, 452 U.S. 337, 348 (1981). In addition, Plaintiff 10 claims that he has been forced to take showers with cold water and the handling of the food at the prison 11 is unsanitary. (See Compl. at 3.) “[S]ubjection of a prisoner to lack of sanitation that is severe or 12 prolonged can constitute an infliction of pain within the meaning of the Eighth Amendment.” Anderson 13 v. County of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995). Conditions of confinement, consistent with the 14 Constitution, can be restrictive and harsh. Rhodes, 452 U.S. at 337. While Plaintiff may have alleged 15 some conditions that rise to the level of an Eighth Amendment violation, he has failed to allege facts 16 sufficient to show that any of the named Defendants acted with “deliberate indifference” to the 17 unconstitutional conditions which is required in order to establish an Eighth Amendment violation. See 18 Farmer v. Brennan, 511 U.S. 825, 834 (1994). 19 In addition, Plaintiff names the Richard J. Donovan Correctional Facility which is part of the 20 California Department of Corrections and Rehabilitation, as a Defendant. (See Compl. at 1-2.) The 21 State of California and the California Department of Corrections and Rehabilitation, as an agency of 22 the State of California, are not “persons” subject to suit and are, instead, entitled to absolute immunity 23 from monetary damages actions under the Eleventh Amendment. See Seminole Tribe of Florida v. 24 Florida, 517 U.S. 44, 53-54 (1996); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106 25 (1984); see also Hale v. State of Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (holding that a state 26 department of corrections is not a “person” within the meaning of § 1983). In order to state a claim 27 under § 1983, Plaintiff must identify a “person” who, acting under color of state law, deprived him of 28 a right guaranteed under the Constitution or a federal statute. See 42 U.S.C. § 1983. 4 10cv0191 JM (POR) 1 Therefore, Plaintiff’s claims for monetary damages against the State of California and R.J. 2 Donovan Correctional Facility are dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii). 3 Accordingly, the Court finds that Plaintiff’s Complaint fails to state a section 1983 claim upon 4 which relief may be granted , and is therefore subject to dismissal pursuant to 28 U.S.C. 5 §§ 1915(e)(2)(b) & 1915A(b). The Court will provide Plaintiff with an opportunity to amend his 6 pleading to cure the defects set forth above. Plaintiff is warned that if his amended complaint fails to 7 address the deficiencies of pleading noted above, it may be dismissed with prejudice and without leave 8 to amend. 9 To the extent that Plaintiff chooses to file an Amended Complaint, the Court cautions Plaintiff 10 that his entire action may be subject to dismissal on the grounds that it appears that he failed to exhaust 11 his administrative remedies prior to bringing this action. 12 The PLRA amended 42 U.S.C. § 1997e(a) to provide that “[n]o action shall be brought with 13 respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison or other 14 correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 15 1997e(a). “Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) 16 is now mandatory.” Porter v. Nussle, 534 U.S. 516 (2002). “The ‘available’ ‘remed[y]’ must be 17 ‘exhausted’ before a complaint under § 1983 may be entertained,” Booth v. Churner, 532 U.S. 731, 18 738 (2001), and “regardless of the relief offered through administrative procedures.” 19 Moreover, the Supreme Court held in Woodford v. Ngo, 548 U.S. 81, 83-84 (2006) that “[p]roper 20 exhaustion demands compliance with an agency’s deadlines and other critical procedural rules because 21 no adjudicative system can function effectively without imposing some orderly structure on the court 22 of its proceedings.” Id. at 90. The Court further held that “[proper exhaustion] means ... a prisoner must 23 complete the administrative review process in accordance with the applicable procedural rules . . . as 24 a precondition to bring suit in federal court.” Id. Id. at 741. 25 The plain language of 42 U.S.C. § 1997e(a) provides that no § 1983 action “shall be brought . 26 . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (emphasis 27 added). The Ninth Circuit’s decision in McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002) holds that 28 prisoners who are incarcerated at the time they file a civil action which challenges the conditions of their 5 10cv0191 JM (POR) 1 confinement are required to exhaust “all administrative remedies as are available” as a mandatory 2 precondition to suit. See McKinney, 311 F.3d at 1198; see also Perez v. Wis. Dep’t of Corrections, 182 3 F.3d 532, 534-35 (7th Cir. 1999) (“Congress could have written a statute making exhaustion a 4 precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to suit.”) 5 (emphasis original). Section 1997e(a) “clearly contemplates exhaustion prior to the commencement of 6 the action as an indispensable requirement. Exhaustion subsequent to the filing of the suit will not 7 suffice.” McKinney, 311 F.3d at 1198 (quoting Medina-Claudio v. Rodriquez-Mateo, 292 F.3d 31, 36 8 (1st Cir. 2002)). 9 III. 10 CONCLUSION AND ORDER 11 Good cause appearing, IT IS HEREBY ORDERED that: 12 1. 13 14 Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 4] is GRANTED. 2. The Secretary of California Department of Corrections and Rehabilitation, or his 15 designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee owed in 16 this case by collecting monthly payments from the account in an amount equal to twenty percent (20%) 17 of the preceding month’s income and forward payments to the Clerk of the Court each time the amount 18 in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE 19 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 20 3. The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate, 21 Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, 22 Sacramento, California 95814. 23 IT IS FURTHER ORDERED that: 24 4. Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. 25 §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days’ leave from the 26 date this Order is “Filed” in which to file a First Amended Complaint which cures all the deficiencies 27 of pleading noted above. Plaintiff’s Amended Complaint must be complete in itself without reference 28 to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants not named and all claims not re6 10cv0191 JM (POR) 1 alleged in the Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 2 565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended Complaint fails to state a claim upon which 3 relief may be granted, it may be dismissed without further leave to amend and may hereafter be 4 counted as a “strike” under 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th 5 Cir. 1996). 6 5. 7 IT IS SO ORDERED. 8 9 10 The Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff. DATED: March 8, 2010 Hon. Jeffrey T. Miller United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 10cv0191 JM (POR)
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