Golladay v. Hamburg, No. 3:2015cv02155 - Document 8 (S.D. Cal. 2015)
Court Description: ORDER granting 2 Motion 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 from 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 elect ronically transmitted to Secretary of CDCR). Plaintiff's requests to file an Amended Complaint is granted. Plaintiff's Amended Complaint, should he elect to file one, must be filed with the Court no later than Monday, January 11, 2016. Plai ntiff's Motion to Appoint Counsel 3 is denied without prejudice. The Court directs the Clerk of Court to provide Plaintiff with a blank copy of this Court's form "Complaint under the Civil Rights Act, 42 U.S.C. § 1983" for his use in amending. Signed by Judge Larry Alan Burns on 12/15/15 (form mailed to plaintiff). (All non-registered users served via U.S. Mail Service)(kas)
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Golladay v. Hamburg Doc. 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DOUGLAS L. GOLLADAY, CDCR #AH-9802, Civil No. Plaintiff, 12 vs. 15 16 17 ORDER: 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) [ECF Doc. No. 2 ] 13 14 15cv2155 LAB (NLS) 2) DENYING MOTION TO APPOINT COUNSEL [ECF Doc. No. 3] J. HAMBURG, AND 18 Defendant. 19 3) GRANTING LEAVE TO AMEND 20 21 Douglas L. Golladay (“Plaintiff”), currently incarcerated at Richard J. Donovan 22 Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, initiated 23 this civil rights action by filing a one-page letter with the Court on September 24, 2015. 24 See ECF Doc. No. 1. 25 In his letter, Plaintiff claims to have been assaulted at RJD on August 17, 2015, 26 by J. Hamburg, whom the Court presumes is a fellow prisoner, and thereafter denied 27 medical attention. Id. at 1. He seeks $250,000 from unidentified RJD officials who failed 28 to treat his injuries and those who failed to protect him. Id. I:\Everyone\_EFILE-PROSE\LAB\15cv2155-grt-IFP-dny-csl&amend.wpd -1- 15cv2155 LAB (NLS) Dockets.Justia.com Because Plaintiff is proceeding without counsel, the Court liberally construed his 1 2 letter as an attempt to commence a civil action, and assigned it Civil Case No. 15-cv3 2155 LAB (NLS). See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 4 (9th Cir. 1988) (where a plaintiff appears in propria persona, the Court must construe his 5 pleadings liberally and afford plaintiff any benefit of the doubt). Plaintiff did not prepay the $400 civil filing fee required by 28 U.S.C. § 1914(a) 6 7 at the time he submitted his letter. But he did file a Motion to Proceed In Forma 8 Pauperis pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2), as well as a Motion to 9 Appoint Counsel (ECF Doc. No. 3). In addition, Plaintiff has since filed two separate 10 letters, both addressed to the Clerk, which express his desire to amend his pleading to 11 include additional Defendants: the “2 floor C/Os” who should have “been inside the 12 building” and “on the floor” at the time he was attacked, and the “male nurse/medical 13 staff” whom he claims failed to refer him to a doctor. See Pl.’s Letters (ECF Doc. Nos. 14 5, 7).1 15 I. Motion to Proceed IFP 16 All parties instituting any civil action, suit or proceeding in a district court of the 17 United States, except an application for writ of habeas corpus, must pay a $400 filing fee. 18 See 28 U.S.C. § 1914(a).2 An action may proceed despite a plaintiff’s failure to prepay 19 the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). 20 See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff 21 1 Because the Court has previously permitted Plaintiff, in light of his pro se status, 22 to file letters instead of the proper pleadings and motions required by the Federal Rules of Civil Procedure as well as this Court’s Local Rules, he is hereby cautioned that Local 23 Rule 83.9 prohibits him from “writing letters to the judge.” S.D. CAL. CIVLR 83.9. Therefore, all future “matters to be called to the judge’s attention should be formally 24 submitted” as provided by S.D. CAL. CIVLR 5.1, 5.2, 7.1, and 8.2; any future letters addressed to either the Judge or the Clerk will be rejected, returned to him, and not filed. 25 Id.; see also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1986) (noting that while a pro se litigant’s allegations are liberally construed, he must nevertheless “follow the same rules 26 of procedure that govern other litigants.”). 2 27 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of 28 Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. I:\Everyone\_EFILE-PROSE\LAB\15cv2155-grt-IFP-dny-csl&amend.wpd -2- 15cv2155 LAB (NLS) 1 is a prisoner, as Plaintiff is here, he may be granted leave to proceed IFP, but he remains 2 obligated to pay the full entire fee in “increments,” see Williams v. Paramo, 775 F.3d 3 1182, 1185 (9th Cir. 2015), regardless of whether his action is ultimately dismissed. See 4 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 5 6 (“PLRA”), prisoners seeking leave to proceed IFP must submit a “certified copy of the 7 trust fund account statement (or institutional equivalent) for the . . . six-month period 8 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 9 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, 10 the Court assesses an initial payment of 20% of (a) the average monthly deposits in the 11 account for the past six months, or (b) the average monthly balance in the account for the 12 past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 13 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then 14 collects subsequent payments, assessed at 20% of the preceding month’s income, in any 15 month in which the prisoner’s account exceeds $10, and forwards those payments to the 16 Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). In support of his IFP Motion, Plaintiff has submitted a CDCR Inmate Statement 17 18 Report as required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Andrews, 398 19 F.3d at 1119. This Report indicates Plaintiff has had no money credited to his account 20 at RJD, carries a current encumbrance of $89.42 for medical supplies and copy charges, 21 and had an available balance of zero at the time of filing. See 28 U.S.C. § 1915(b)(4) 22 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action 23 or appealing a civil action or criminal judgment for the reason that the prisoner has no 24 assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 25 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal 26 of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 27 available to him when payment is ordered.”). 28 / / / I:\Everyone\_EFILE-PROSE\LAB\15cv2155-grt-IFP-dny-csl&amend.wpd -3- 15cv2155 LAB (NLS) Therefore, the Court grants Plaintiff’s Motion to Proceed IFP (ECF Doc. No. 2), 1 2 and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire 3 $350 balance of the filing fees due for this case must be collected by the California 4 Department of Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of 5 the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 6 § 1915(b)(1). 7 II. Motion to Appoint Counsel 8 In yet another letter addressed to the Clerk, Plaintiff requests the appointment of 9 counsel to assist him because he is indigent, and “would like [an attorney] to assist [with 10 his] paperwork.” See Pl.’s Letter (filed as Motion to Appoint Counsel), ECF Doc. No. 11 3 at 1. There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of 12 13 Social Servs, 452 U.S. 18, 25 (1981). And while 28 U.S.C. § 1915(e)(1) grants the 14 district court limited discretion to “request” that an attorney represent an indigent civil 15 litigant, Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004), this 16 discretion may be exercised only under “exceptional circumstances.” Id.; see also Terrell 17 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances 18 requires “an evaluation of the likelihood of the plaintiff’s success on the merits and an 19 evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity of 20 the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 21 789 F.2d 1328, 1331 (9th Cir. 1986)). The Court denies Plaintiff’s request without prejudice because nothing in the 22 23 record at this stage of the proceedings suggests he is incapable of articulating the factual 24 basis for his claims, and any evaluation of his likelihood of success on the merits is 25 premature. Id. Therefore, no exceptional circumstances warrant the appointment of 26 counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 27 F.2d at 1017. 28 / / / I:\Everyone\_EFILE-PROSE\LAB\15cv2155-grt-IFP-dny-csl&amend.wpd -4- 15cv2155 LAB (NLS) 1 III. Plaintiff’s Requests to Amend 2 As noted above, Plaintiff has also filed two separate letters, both addressed to the 3 Clerk, which indicate he wishes to amend his original pleading to include additional 4 Defendants: the “2 floor C/Os” who should have “been inside the building” and “on the 5 floor” at the time he was attacked, and the “male nurse/medical staff” who failed to refer 6 him to a doctor. See Pl.’s Letters (ECF Doc. Nos. 5, 7). Federal Rule of Civil Procedure 15 provides that “[a] party may amend its 7 8 pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the 9 pleading is one to which a responsive pleading is required, 21 days after service of a 10 responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), 11 whichever is earlier.” FED. R. CIV. P. 15(a)(1). Otherwise, amendment is only permitted 12 if the opposing party consents or the court grants leave to amend. FED. R. CIV. P. 13 15(a)(2). Even then, “Rule 15(a) is very liberal and leave to amend ‘shall be freely given 14 when justice so requires.’” AmerisourceBergen Corp. v. Dialysis West Inc., 445 F.3d 15 1132, 1136 (9th Cir. 2006) (quoting FED. R. CIV. P. 15(a)). Accordingly, while the Court’s permission to amend was not required under the 16 17 circumstances since Plaintiff’s case is still in its preliminary stages and no pleading has 18 yet to be served on any party, it hereby grants Plaintiff’s letter requests to file an 19 Amended Complaint adding new parties and/or claims (ECF Doc. Nos. 5, 7). 20 IV. Initial Screening 21 Notwithstanding Plaintiff’s IFP status, the PLRA also obligates the Court to 22 review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who 23 are “incarcerated or detained in any facility [and] accused of, sentenced for, or 24 adjudicated delinquent for, violations of criminal law or the terms or conditions of 25 parole, probation, pretrial release, or diversionary program,” “as soon as practicable after 26 docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions of the 27 PLRA, the Court must sua sponte screen and dismiss complaints, or any portions thereof, 28 which are frivolous, malicious, fail to state a claim, or which seek damages from I:\Everyone\_EFILE-PROSE\LAB\15cv2155-grt-IFP-dny-csl&amend.wpd -5- 15cv2155 LAB (NLS) 1 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. 2 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. 3 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 4 “The standard for determining whether a plaintiff has failed to state a claim upon 5 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 6 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 7 F.3d 1108, 1112 (9th Cir. 2012). “To survive a motion to dismiss, a complaint must 8 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 9 plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual 10 content that allows the court to draw the reasonable inference that the defendant is liable 11 for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 12 Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). Conclusory statements that merely 13 recite the elements of a claim are insufficient for the purpose of 12(b)(6). See Iqbal, 556 14 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by 15 mere conclusory statements, do not suffice.”); Twombly, 550 U.S. at 555 (“a plaintiff’s 16 obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than 17 labels and conclusions, and a formulaic recitation of the elements of a cause of action 18 will not do.”). 19 Because the Court has granted Plaintiff leave to amend, it will defer its mandatory 20 screening of Plaintiff’s original pleading pursuant to 28 U.S.C. § 1915(e)(2) and 21 § 1915A(b) until after he has an opportunity to present all his claims against each person 22 or entity he seeks to hold liable pursuant to 42 U.S.C. § 1983 in one complete Amended 23 Complaint. Plaintiff is cautioned, however, that his Amended Complaint will supersede, 24 or replace, his original Complaint (ECF Doc. No. 1), and that his Amended Complaint 25 must, therefore, be is complete by itself, name all the parties he intends to sue, and 26 include a “short and plain statement” of any and all grounds upon which he claims 27 entitlement to relief. See FED. R. CIV. P. 8(a); Hal Roach Studios, Inc. v. Richard Feiner 28 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes I:\Everyone\_EFILE-PROSE\LAB\15cv2155-grt-IFP-dny-csl&amend.wpd -6- 15cv2155 LAB (NLS) 1 the original.”); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). This 2 Court will consider “[a]ll causes of action alleged in an original complaint which are not 3 alleged in an amended complaint [as] waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th 4 Cir. 1987) (citation omitted); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th 5 Cir. 2012) (en banc) (holding that while “claims dismissed with prejudice and without 6 leave to amend” need not be repled to preserve them in the event of an eventual appeal, 7 “claims voluntarily dismissed . . . will [be] consider[ed] . . . waived if not repled.”). Thus, because Plaintiff’s Amended Complaint will be subject to the same 8 9 screening his original Complaint would have received pursuant to 28 U.S.C. § 1915(e)(2) 10 and § 1915A(b) had he not first sought leave to amend it, Plaintiff should take care to 11 ensure that his Amended Complaint identifies all Defendants by name and contains 12 sufficient “factual matter” to show: (1) how and why he believes his constitutional rights 13 were violated; and (2) what each individual Defendant did to cause him injury. See Iqbal, 14 556 U.S. at 677-78. “Because vicarious liability is inapplicable to . . . § 1983 suits, a 15 plaintiff must plead that each Government-official defendant, through the official’s own 16 actions, has violated the Constitution.” Id. at 676. 17 V. Conclusion and Order 18 For the reasons set forth above, the Court: 19 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. 20 § 1915(a) (ECF Doc. No. 2). 2. 21 DIRECTS the Secretary of the CDCR, or his designee, to collect from 22 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 23 monthly payments from his account in an amount equal to twenty percent (20%) of the 24 preceding month’s income and forwarding those payments to the Clerk of the Court each 25 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 26 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 27 ASSIGNED TO THIS ACTION. 28 / / / I:\Everyone\_EFILE-PROSE\LAB\15cv2155-grt-IFP-dny-csl&amend.wpd -7- 15cv2155 LAB (NLS) 1 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeffrey 2 A. Beard, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 3 4. GRANTS Plaintiff’s requests to file an Amended Complaint (ECF Doc. 4 Nos. 5, 7). Plaintiff’s Amended Complaint, should he elect to file one, must be filed with 5 the Court no later than Monday, January 11, 2016. If Plaintiff does not file an 6 Amended Complaint by that time, the Court will presume he wishes to proceed only with 7 the claims already alleged against the Defendants previously identified in his original 8 pleading (ECF Doc. No. 1), and will conduct its screening of only that pleading pursuant 9 to 28 U.S.C. § 1915(e)(2) and § 1915A(b). 10 5. DIRECTS the Clerk of Court to provide Plaintiff with a blank copy of this 11 Court’s form “Complaint under the Civil Rights Act, 42 U.S.C. § 1983” for his use in 12 amending. If he chooses to amend, Plaintiff should title his pleading as his “First 13 Amended Complaint,” identify all the persons or entities he intends to sue by name, and 14 include Civil Case No. 15-cv-2155 LAB (NLS) in its caption. 15 6. DENIES Plaintiff’s Motion to Appoint Counsel (ECF Doc. No. 3) without 16 prejudice. 17 IT IS SO ORDERED. 18 19 DATED: December 15, 2015 20 HONORABLE LARRY ALAN BURNS United States District Judge 21 22 23 24 25 26 27 28 I:\Everyone\_EFILE-PROSE\LAB\15cv2155-grt-IFP-dny-csl&amend.wpd -8- 15cv2155 LAB (NLS)
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