Edwards v. CDCR et al, No. 3:2015cv00174 - Document 7 (S.D. Cal. 2015)
Court Description: ORDER granting 4 , 6 Motions for Leave to Proceed in forma pauperis. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments fro m the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR). Plaintiff's complaint is dismissed for failing to state a claim upon which relief may be granted and for seeking monetary damages against immune defendants pursuant to 28 U.S.C. § 1915(e)(2 )(B)(ii) and § 1915A(b)(1). Plaintiff is GRANTED sixty (60) days leave from the date of this Order in which to file an Amended Complaint. Signed by Judge Larry Alan Burns on 2/24/15. (All non-registered users served via U.S. Mail Service)(form 1983 complaint mailed to plaintiff)(kas)
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Edwards v. CDCR et al Doc. 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 SAMUEL EDWARDS, CDCR #F-55903, Civil No. Plaintiff, 13 vs. 16 17 18 (2) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b) CALIFORNIA DEP’T OF CORRECTIONS AND REHABILITATION, et al., 19 ORDER: (1) GRANTING PLAINTIFF’S MOTIONS TO PROCEED IN FORMA PAUPERIS [ECF Doc. Nos. 4, 6]; and 14 15 15cv0174 LAB (JMA) Defendants. 20 21 22 Samuel Edwards, (“Plaintiff”), currently incarcerated at Centinela State Prison 23 (“CEN”) located in Imperial, California, and proceeding pro se, has filed a civil rights 24 action pursuant to 42 U.S.C. § 1983. (ECF Doc. No. 1.) Plaintiff has not prepaid the 25 civil filing fee; instead he has filed two Motions to Proceed In Forma Pauperis (“IFP”) 26 pursuant to 28 U.S.C. § 1915(a) (ECF Doc. Nos. 4, 6). 27 // 28 // I:\Everyone\_EFILE-PROSE\LAB\15cv0174-grt IFP&dsm.wpd 1 15cv0174 LAB (JMA) Dockets.Justia.com 1 I. PLAINTIFF’S MOTION TO PROCEED IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee. See 4 28 U.S.C. § 1914(a).1 An action may proceed despite the plaintiff’s failure to prepay the 5 entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 6 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a 7 prisoner and he is granted leave to proceed IFP, he nevertheless remains obligated to pay 8 the entire fee in installments, regardless of whether his action is ultimately dismissed. See 9 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 10 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 11 (“PLRA”), a prisoner seeking leave to proceed IFP must also submit a “certified copy of 12 the trust fund account statement (or institutional equivalent) for . . . the six-month period 13 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 14 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, 15 the Court assesses an initial payment of 20% of (a) the average monthly deposits in the 16 account for the past six months, or (b) the average monthly balance in the account for the 17 past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 18 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then 19 collects subsequent payments, assessed at 20% of the preceding month’s income, in any 20 month in which the prisoner’s account exceeds $10, and forwards them to the Court until 21 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 22 In support of his IFP application, Plaintiff has submitted the certified copies of his 23 trust account statements required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. 24 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statements, 25 as well as the attached prison certificate where he is currently incarcerated verifying his 26 1 In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a), (b); Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule (eff. May 28 1, 2013). However, the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id. 27 I:\Everyone\_EFILE-PROSE\LAB\15cv0174-grt IFP&dsm.wpd 2 15cv0174 LAB (JMA) 1 account history and available balances, and has determined that Plaintiff has no available 2 funds from which to pay filing fees at this time. See 28 U.S.C. § 1915(b)(4) (providing 3 that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing 4 a civil action or criminal judgment for the reason that the prisoner has no assets and no 5 means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding 6 that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s 7 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him 8 when payment is ordered.”). 9 Therefore, the Court GRANTS Plaintiff’s Motions to Proceed IFP (ECF Doc. Nos. 10 4, 6) and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the 11 entire $350 balance of the filing fees mandated must be garnished by the California 12 Department of Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of 13 the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 14 § 1915(b)(1). 15 II. INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) AND 1915A(b)(1) 16 A. Standard of Review 17 Notwithstanding IFP status or the payment of any partial filing fees, the PLRA also 18 obligates the Court to review complaints filed by all persons proceeding IFP and by 19 those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, 20 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 21 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 22 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 23 provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions 24 thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from 25 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. 26 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. 27 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 28 // I:\Everyone\_EFILE-PROSE\LAB\15cv0174-grt IFP&dsm.wpd 3 15cv0174 LAB (JMA) 1 All complaints must contain “a short and plain statement of the claim showing that 2 the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are 3 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 4 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 5 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether 6 a complaint states a plausible claim for relief [is] ... a context-specific task that requires 7 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere 8 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 9 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 10 “When there are well-pleaded factual allegations, a court should assume their 11 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 12 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 13 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 14 allegations of material fact and must construe those facts in the light most favorable to 15 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 16 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 17 However, while the court “ha[s] an obligation where the petitioner is pro se, 18 particularly in civil rights cases, to construe the pleadings liberally and to afford the 19 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 20 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not, in 21 so doing, “supply essential elements of claims that were not initially pled.” Ivey v. Board 22 of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and 23 conclusory allegations of official participation in civil rights violations are not sufficient 24 to withstand a motion to dismiss.” Id. 25 B. 42 U.S.C. § 1983 26 “Section 1983 creates a private right of action against individuals who, acting 27 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 28 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of I:\Everyone\_EFILE-PROSE\LAB\15cv0174-grt IFP&dsm.wpd 4 15cv0174 LAB (JMA) 1 substantive rights, but merely provides a method for vindicating federal rights elsewhere 2 conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks 3 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 4 deprivation of a right secured by the Constitution and laws of the United States, and (2) 5 that the deprivation was committed by a person acting under color of state law.” Tsao v. 6 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 7 C. Respondeat Superior 8 As an initial matter, the Court notes that Plaintiff names the Warden for CEN as 9 a Defendant. See Compl. at 1. However, his Complaint contains virtually no allegations 10 this individual knew of or took any part in any constitutional violation. “Because 11 vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each 12 government-official defendant, through the official’s own individual actions, has violated 13 the Constitution.” 14 Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even 15 pro se plaintiff must “allege with at least some degree of particularity overt acts which 16 defendants engaged in” in order to state a claim). Ashcroft, 556 U.S. at 676; see also Jones v. Community 17 Plaintiff includes no details as to what Miller specifically did, or failed to do, which 18 resulted in the violation of any constitutional right. Iqbal, 556 U.S. at 678 (noting that 19 FED.R.CIV.P. 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me 20 accusation,” and that “[t]o survive a motion to dismiss, a complaint must contain 21 sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on 22 its face.’”) (quoting Twombly, 550 U.S. at 555, 570). 23 Thus, to the extent it appears Plaintiff seeks to sue Warden Miller only by virtue 24 of her position within the prison and/or her supervisory duties over other correctional or 25 medical officials, in order to avoid the respondeat superior bar, his pleading must include 26 sufficient “factual content that allows the court to draw the reasonable inference that the 27 defendant is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678, and include a 28 description of personal acts by each individual defendant which show a direct causal I:\Everyone\_EFILE-PROSE\LAB\15cv0174-grt IFP&dsm.wpd 5 15cv0174 LAB (JMA) 1 connection to a violation of specific constitutional rights. Taylor v. List, 880 F.2d 1040, 2 1045 (9th Cir. 1989). A supervisor is only liable for the constitutional violations of his 3 subordinates if the supervisor participated in or directed the violations, or knew of the 4 violations and with deliberate indifference, failed to act to prevent them. Wilson v. Seiter, 5 501 U.S. 294, 303 (1991); Taylor, 880 F.2d at 1045. If there is no affirmative link 6 between a defendant’s conduct and the alleged injury, as there is none alleged here, there 7 is no deprivation of the plaintiff’s constitutional rights. Rizzo v. Goode, 423 U.S. 362, 8 370 (1976). 9 As currently pleaded, Plaintiff’s Complaint sets forth no facts which might be 10 liberally construed to support any sort of individualized constitutional claim against 11 Warden Miller, who is purportedly being sued based on the position she holds and not 12 because of any individually identifiable conduct alleged to have caused Plaintiff injury. 13 “Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks v. 14 United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into causation must be 15 individualized and focus on the duties and responsibilities of each individual defendant 16 whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer 17 v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo, 423 U.S. at 370-71). 18 Based on these pleading deficiencies, the Court finds Plaintiff has failed to state 19 a claim against Miller and his Complaint requires dismissal as to this party pursuant to 20 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 1126-27; Resnick, 213 21 F.3d at 446. 22 D. 23 In addition, the Court finds that to the extent Plaintiff names the State of 24 California’s Department of Corrections and Rehabilitation (“CDCR”) as a Defendant, his 25 claims must be dismissed sua sponte pursuant to both 28 U.S.C. § 1915(e)(2) and 26 § 1915A(b) for both failing to state a claim and for seeking damages against a defendant 27 who is immune. 28 Eleventh Amendment The State of California’s Department of Corrections and Rehabilitation is not a I:\Everyone\_EFILE-PROSE\LAB\15cv0174-grt IFP&dsm.wpd 6 15cv0174 LAB (JMA) 1 “person” subject to suit under § 1983. Hale v. State of Arizona, 993 F.2d 1387, 1398-99 2 (9th Cir. 1993) (holding that a state department of corrections is an arm of the state, and 3 thus, not a “person” within the meaning of § 1983). And to the extent Plaintiff may 4 intend to sue the State of California itself, his claims are clearly barred by the Eleventh 5 Amendment. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (“There can 6 be no doubt . . . that [a] suit against the State and its Board of Corrections is barred by the 7 Eleventh Amendment, unless [the State] has consented to the filing of such a suit.”); 8 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (concluding that the Nevada 9 Department of Prisons was a state agency entitled to Eleventh Amendment immunity); 10 Nat’l Audubon Soc’y v. Davis, 307 F.3d 835, 847 (9th Cir. 2002) (noting that even in a 11 suit seeking prospective relief, “state agencies are [ ] immune from suit because they are 12 state entities, not individual state officers.”). 13 Therefore, to the extent Plaintiff seeks monetary damages against the CDCR, or 14 any relief whatsoever against the State of California itself, his Complaint must be 15 dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii) and 28 U.S.C. § 1915A(b)(1) 16 & (2). Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 17 E. Fourteenth Amendment claim 18 Finally, the Court finds that Plaintiff has failed to state a claim arising from his 19 allegations that he was denied due process during his disciplinary hearings. “The 20 requirements of procedural due process apply only to the deprivation of interests 21 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Board 22 of Regents v. Roth, 408 U.S. 564, 569 (1972). State statutes and prison regulations may 23 grant prisoners liberty interests sufficient to invoke due process protections. Meachum 24 v. Fano, 427 U.S. 215, 223-27 (1976). However, the Supreme Court has significantly 25 limited the instances in which due process can be invoked. 26 Conner, 515 U.S. 472, 483 (1995), a prisoner can show a liberty interest under the Due 27 Process Clause of the Fourteenth Amendment only if he alleges a change in confinement 28 that imposes an “atypical and significant hardship . . . in relation to the ordinary incidents I:\Everyone\_EFILE-PROSE\LAB\15cv0174-grt IFP&dsm.wpd 7 Pursuant to Sandin v. 15cv0174 LAB (JMA) 1 of prison life.” Id. at 484 (citations omitted); Neal v. Shimoda, 131 F.3d 818, 827-28 (9th 2 Cir. 1997). 3 In this case, Plaintiff has failed to establish a liberty interest protected by the 4 Constitution because he has not alleged, as he must under Sandin, facts related to the 5 conditions or consequences of his disciplinary hearing which show “the type of atypical, 6 significant deprivation [that] might conceivably create a liberty interest.” Id. at 486. For 7 example, in Sandin, the Supreme Court considered three factors in determining whether 8 the plaintiff possessed a liberty interest in avoiding disciplinary segregation: (1) the 9 disciplinary versus discretionary nature of the segregation; (2) the restricted conditions 10 of the prisoner’s confinement and whether they amounted to a “major disruption in his 11 environment” when compared to those shared by prisoners in the general population; and 12 (3) the possibility of whether the prisoner’s sentence was lengthened by his restricted 13 custody. Id. at 486-87. 14 Therefore, to establish a due process violation, Plaintiff must first show the 15 deprivation imposed an atypical and significant hardship on him in relation to the 16 ordinary incidents of prison life. Sandin, 515 U.S. at 483-84. Plaintiff has failed to 17 allege any facts from which the Court could find there were atypical and significant 18 hardships imposed upon him as a result of the Defendants’ actions. Plaintiff must allege 19 “a dramatic departure from the basic conditions” of his confinement that would give rise 20 to a liberty interest before he can claim a violation of due process. Id. at 485; see also 21 Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996), amended by 135 F.3d 1318 (9th 22 Cir. 1998). He has not; therefore the Court finds that Plaintiff has failed to allege a 23 liberty interest in remaining free of Ad-seg, and thus, has failed to state a due process 24 claim. See May, 109 F.3d at 565; Hewitt, 459 U.S. at 466; Sandin, 515 U.S. at 486. 25 Accordingly, the Court finds that Plaintiff’s Complaint fails to state a section 1983 26 claim upon which relief may be granted, and is therefore subject to dismissal pursuant to 27 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). 28 III. CONCLUSION AND ORDER I:\Everyone\_EFILE-PROSE\LAB\15cv0174-grt IFP&dsm.wpd 8 15cv0174 LAB (JMA) 1 Good cause appearing, IT IS HEREBY ORDERED that: 2 1. 3 4 Plaintiff’s Motions to proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 4, 6) are GRANTED. 2. The Secretary of California Department of Corrections and Rehabilitation, 5 or his designee, shall collect from Plaintiff’s prison trust account the $350 balance of the 6 filing fee owed in this case by collecting monthly payments from the account in an 7 amount equal to twenty percent (20%) of the preceding month’s income and forward 8 payments to the Clerk of the Court each time the amount in the account exceeds $10 in 9 accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY 10 11 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 3. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey 12 Beard, Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, 13 Suite 502, Sacramento, California 95814. 14 IT IS FURTHER ORDERED that: 15 4. Plaintiff’s Complaint is DISMISSED for failing to state a claim upon which 16 relief may be granted and for seeking monetary damages against immune defendants 17 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). However, Plaintiff is 18 GRANTED sixty (60) days leave from the date of this Order in which to file an 19 Amended Complaint which cures all the deficiencies of pleading noted above. Plaintiff’s 20 Amended Complaint must be complete in itself without reference to his original pleading. 21 See S.D. CAL. CIVLR. 15.1. Defendants not named and all claims not re-alleged in the 22 Amended Complaint will be considered waived. See King v. Atiyeh, 814 F.2d 565, 567 23 (9th Cir. 1987). 24 5. 25 The Clerk of Court is directed to mail a copy of a form § 1983 complaint. DATED: February 24, 2015 26 27 HONORABLE LARRY ALAN BURNS United States District Judge 28 I:\Everyone\_EFILE-PROSE\LAB\15cv0174-grt IFP&dsm.wpd 9 15cv0174 LAB (JMA)
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