Wallace v. Olivarria et al, No. 3:2016cv01808 - Document 19 (S.D. Cal. 2016)

Court Description: ORDER granting Plaintiff's 16 Motion for Leave to Proceed in forma pauperis and 18 Motion for Leave to Proceed in forma pauperis; denying Plaintiff's 13 Motion to Appoint Counsel The Secretary CDCR, or his designee, is ordered to c ollect 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). Court dismisses this action for failing to state claim upon which 1983 relief can be granted pursuant to 28 1915(e)(2)(B)(ii) and 1 915A(b)(1). Court grants Plaintiff 45 days leave from the date of this Order to re-open the case by filing an Amended Complaint. Signed by Judge Cynthia Bashant. (Order electronically transmitted to Secretary of CDCR) (All non-registered users served via U.S. Mail Service) (Blank 1983 Complaint form t/w copy of the Order mailed to Plaintiff) (jah)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 TYRONE WALLACE, CDCR #P-48941, Case No. 16-cv-01808-BAS-PCL 13 14 ORDER: Plaintiff, vs. (1) GRANTING MOTIONS TO PROCEED IN FORMA PAUPERIS [ECF Nos. 16, 18] 15 16 17 18 R. OLIVARRIA; B. SELF; R. ARMENDARIZ; J. McNEIL; D. ARGUILEZ, (2) DENYING MOTION TO APPOINT COUNSEL [ECF No. 13] Defendants. 19 AND 20 (3) DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B)(ii) AND 1915A(b)(1) 21 22 23 24 25 Plaintiff Tyrone Wallace, currently incarcerated at Richard J. Donovan 26 Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed a 27 civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF. No. 1). Plaintiff did not prepay 28 the civil filing fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; instead, 1 16cv1808 1 he filed two Motions to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 2 § 1915(a) (ECF No. 16, 18). Plaintiff has also filed a Motion to Appoint Counsel (ECF 3 No. 13). Before the Court conducted the required sua sponte screening of his Complaint, 4 Plaintiff filed a First Amended Complaint (“FAC”) which is now the operative pleading 5 (ECF No. 9). 6 I. 7 Motions to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 8 United States, except an application for writ of habeas corpus, must pay a filing fee of 9 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 10 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 11 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 12 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 13 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 14 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 15 1182, 1185 (9th Cir. 2015). This obligation persists regardless of whether the prisoner’s 16 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 17 281 F.3d 844, 847 (9th Cir. 2002). 18 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 19 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 20 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 21 § 1915(a)(2); see also Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the 22 certified trust account statement, the Court assesses an initial payment of 20% of (a) the 23 average monthly deposits in the account for the past six months, or (b) the average 24 monthly balance in the account for the past six months, whichever is greater, unless the 25 26 1 27 28 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 Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 16cv1808 1 prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 2 institution having custody of the prisoner then collects subsequent payments, assessed at 3 20% of the preceding month’s income in any month in which his account exceeds $10, 4 and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 5 § 1915(b)(2); see also Bruce, 136 S. Ct. at 629. 6 In support of his IFP Motion, Plaintiff has submitted a copy of his California 7 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report. See 8 ECF No. 11. This statement indicates that Plaintiff had an available balance of zero at the 9 time he filed this action. Therefore, the Court GRANTS Plaintiff’s Motions to Proceed IFP (ECF Nos. 16, 10 11 18) and declines to exact an initial partial filing fee. See Bruce, 136 S. Ct. at 629. The 12 Court further directs the Secretary of the CDCR, or his designee, to collect the entire 13 $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward it to the Clerk 14 of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 15 1915(b)(1). See id. 16 II. 17 Motion to Appoint Counsel Plaintiff has also filed a Motion for Appointment of Counsel (ECF No. 13). 18 Plaintiff claims that he has developmental disabilities, “bad handwriting,” and a “low 19 education.” (Id. at 1-4.) 20 Two preliminary points guide the Court’s resolution of Plaintiff’s Motion to 21 Appoint Counsel. First, the Court finds Plaintiff’s FAC sufficiently legible and notes that 22 “a pro se complaint, however inartfully pleaded, must be held to less stringent standards 23 than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 24 (internal citations and quotation marks omitted). Moreover, Federal Rule of Civil 25 Procedure 8(e) requires that “[p]leadings …be construed so as to do justice.” 26 Second, there is no constitutional right to counsel in a civil case. Lassiter v. Dept. 27 of Soc. Servs., 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1) district courts 28 have limited discretion to “request” that an attorney represent an indigent civil litigant, 3 16cv1808 1 see Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004), this 2 discretion is exercised only under “exceptional circumstances.” Id.; see also Terrell v. 3 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances 4 requires “an evaluation of the likelihood of the plaintiff’s success on the merits and an 5 evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity of 6 the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 7 789 F.2d 1328, 1331 (9th Cir. 1986)). Under these circumstances, the Court must DENY Plaintiff’s Motion to Appoint 8 9 Counsel (ECF No. 13) without prejudice because, as discussed below, a liberal 10 construction of his FAC suggests Plaintiff is capable of articulating the factual basis for 11 his claims, and the likelihood of success on the merits is not at all yet clear at this 12 preliminary stage of the proceedings. Id. Therefore, neither the interests of justice nor any 13 exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 14 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. 15 III. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 16 A. 17 Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre- Standard of Review 18 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 19 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 20 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 21 who are immune. See Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 22 (discussing 28 U.S.C. § 1915A(b)); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 23 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)). “The purpose of [screening] is ‘to 24 ensure that the targets of frivolous or malicious suits need not bear the expense of 25 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting 26 Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 27 “The standard for determining whether a plaintiff has failed to state a claim upon 28 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 4 16cv1808 1 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 2 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 3 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 4 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 5 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 6 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 7 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 8 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 9 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 10 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 11 relief [is] ... a context-specific task that requires the reviewing court to draw on its 12 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 13 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 14 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 15 (9th Cir. 2009). 16 Finally, in deciding whether Plaintiff has stated a plausible claim for relief, the 17 Court may consider exhibits attached to his FAC. See Fed. R. Civ. P. 10(c) (“A copy of a 18 written instrument that is an exhibit to a pleading is a part of the pleading for all 19 purposes.”); see also Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 20 1542, 1555 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 21 583 F.2d 426 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the 22 complaint may be considered” in ruling on a Rule 12(b)(6) motion to dismiss.)). 23 B. 24 Plaintiff claims that Defendants McNeil and Armendariz are violating his right to 25 practice his religion by changing his schedule for his prison job. (FAC at 9.) However, 26 Plaintiff provides very little in the way of factual allegations that would indicate how the 27 change in work hours have had any impact on the practice of his religion. Thus, to the Religious Claims 28 5 16cv1808 1 extent that Plaintiff is attempting to bring a claim under the First Amendment or 2 RLUIPA, he fails to allege facts sufficient to state a claim. 3 In order to implicate the Free Exercise Clause of the First Amendment, the 4 Plaintiff must show that his belief is “sincerely held” and “rooted in religious belief.” See 5 Shakur v. Schiro, 514 F.3d 878, 884 (citing Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 6 1994). In addition to First Amendment protections, the Religious Land Use and 7 Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et. seq., provides: 8 No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person – [¶] (1) is in furtherance of a compelling governmental interest; and [¶] (2) is the least restrictive means of furthering that compelling governmental interest. 9 10 11 12 13 42 U.S.C. § 2000cc-1(a) (emphasis added); see also San Jose Christian College v. 14 Morgan Hill, 360 F.3d 1024, 1033-34 (9th Cir. 2004) (“RLUIPA . . . prohibits the 15 government from imposing ‘substantial burdens’ on ‘religious exercise’ unless there 16 exists a compelling governmental interest and the burden is the least restrictive means of 17 satisfying the governmental interest.”). 18 RLUIPA defines religious exercise to include “any exercise of religion, whether or 19 not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc- 20 5(7)(A); San Jose Christian College, 360 F.3d at 1034. The party alleging a RLUIPA 21 violation carries the initial burden of demonstrating that a governmental practice 22 constitutes a substantial burden on his religious exercise. See 42 U.S.C. §§ 2000cc-1(a); 23 2000cc-2(b) (“[T]he plaintiff shall bear the burden of persuasion on whether the law 24 (including a regulation) or government practice that is challenged by the claim 25 substantially burdens the plaintiff’s exercise of religion.”). Here, Plaintiff’s factual 26 allegations are insufficient to state either a First Amendment or RLUIPA claim because 27 he does not discuss the sincerity of his religious belief, the nature of the religious 28 exercise, or the substantiality of any burden. Thus, the Court finds Plaintiff’s religious 6 16cv1808 1 claims must be dismissed for failing to state a plausible claim upon which § 1983 relief 2 can be granted. 3 C. 4 Plaintiff also claims that RJD Appeals Coordinators have denied his First Administrative Grievance Claims 5 Amendment right to access the courts by “screening out” several CDC 602 inmate 6 appeals. (FAC at 11-12.) 7 Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518 8 U.S. 343, 346 (1996). The right is limited to the filing of direct criminal appeals, habeas 9 petitions, and civil rights actions. Id. at 354. Claims for denial of access to the courts may 10 arise from the frustration or hindrance of “a litigating opportunity yet to be gained” 11 (forward-looking access claim) or from the loss of a suit that cannot now be tried 12 (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002); see 13 also Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (differentiating “between 14 two types of access to court claims: those involving prisoners’ right to affirmative 15 assistance and those involving prisoners’ rights to litigate without active interference.”). 16 However, Plaintiff must allege “actual injury” as the threshold requirement to any 17 access to courts claim. Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. An “actual 18 injury” is “actual prejudice with respect to contemplated or existing litigation, such as the 19 inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at 348; see also 20 Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the 21 “inability to file a complaint or defend against a charge”). The failure to allege an actual 22 injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to 23 show that a ‘non-frivolous legal claim had been frustrated’ is fatal.”) (quoting Lewis, 518 24 U.S. at 353 & n.4). 25 In addition, Plaintiff must allege the loss of a “non-frivolous” or “arguable” 26 underlying claim. Harbury, 536 U.S. at 413-14. The nature and description of the 27 underlying claim must be set forth in the pleading “as if it were being independently 28 pursued.” Id. at 417. Finally, Plaintiff must specifically allege the “remedy that may be 7 16cv1808 1 awarded as recompense but not otherwise available in some suit that may yet be 2 brought.” Id. at 415. 3 Plaintiff’s FAC fails to allege the “actual injury” required to state an access to 4 courts claim. See Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. Thus, the Court 5 finds that Plaintiff’s FAC fails to include any further “factual matter” to show how or 6 why any of the individual Defendants in this case caused him to suffer any “actual 7 prejudice” “such as the inability to meet a filing deadline or to present a claim,” with 8 respect to another case. Lewis, 518 U.S. at 348; Jones, 393 F.3d at 936; Iqbal, 556 U.S. at 9 678. 10 Thus, because Plaintiff has failed to allege facts sufficient to show that Defendants 11 caused him to suffer any “actual injury” with respect to any non-frivolous direct criminal 12 appeal, habeas petition, or civil rights action he may have filed, the Court finds Plaintiff’s 13 access to courts claims must be dismissed for failing to state a plausible claim upon 14 which § 1983 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii), § 1915A(b)(1); 15 Iqbal, 556 U.S. at 678. 16 To the extent that Plaintiff alleges that his due process rights have been violated as 17 a result of the manner in which his grievances were processed, Plaintiff has failed to state 18 a Fourteenth Amendment claim. While the Fourteenth Amendment provides that “[n]o 19 state shall . . . deprive any person of life, liberty, or property, without due process of 20 law,” U.S. Const. amend. XIV, § 1, “[t]he requirements of procedural due process apply 21 only to the deprivation of interests encompassed by the Fourteenth Amendment’s 22 protection of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569 (1972). 23 State statutes and prison regulations may grant prisoners liberty or property interests 24 sufficient to invoke due process protection. Meachum v. Fano, 427 U.S. 215, 223-27 25 (1976). However, to state a procedural due process claim, Plaintiff must allege: “(1) a 26 liberty or property interest protected by the Constitution; (2) a deprivation of the interest 27 by the government; [and] (3) lack of process.” Wright v. Riveland, 219 F.3d 905, 913 (9th 28 Cir. 2000). 8 16cv1808 1 The Ninth Circuit has held that inmates have no protected property interest in an 2 inmate grievance procedure arising directly from the Due Process Clause. See Ramirez v. 3 Galaza, 334 F.3d 850, 869 (9th Cir. 2003) (“[I]nmates lack a separate constitutional 4 entitlement to a specific prison grievance procedure”) (citing Mann v. Adams, 855 F.2d 5 639, 640 (9th Cir. 1988) (finding that the due process clause of the Fourteenth 6 Amendment creates “no legitimate claim of entitlement to a [prison] grievance 7 procedure”)). Even the non-existence of, or the failure of prison officials to properly 8 implement, an administrative appeals process within the prison system does not raise 9 constitutional concerns. Mann, 855 F.2d at 640; see also Buckley v. Barlow, 997 F.2d 10 11 494, 495 (8th Cir. 1993). In addition, Plaintiff has failed to plead facts sufficient to show that Defendants 12 deprived him of a protected liberty interest by allegedly failing to respond to any 13 particular prison grievance in a satisfactory manner. While a liberty interest can arise 14 from state law or prison regulations, Meachum, 427 U.S. at 223-27, due process 15 protections are implicated only if Plaintiff alleges facts to show that Defendants: (1) 16 restrained his freedom in a manner not expected from his sentence, and (2) “impose[d] 17 atypical and significant hardship on [him] in relation to the ordinary incidents of prison 18 life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Here, Plaintiff pleads no facts to 19 suggest how Defendants’ allegedly inadequate review or failure to consider inmate 20 grievances restrained his freedom in any way, or subjected him to any “atypical” and 21 “significant hardship.” Id. at 483-84. 22 23 Accordingly, Plaintiff’s claims relating to the processing of his grievances must be dismissed pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). 24 D. 25 Because Plaintiff is proceeding without counsel, and has now been provided with 26 notice of his FAC’s deficiencies, the Court will grant him leave to amend. See Rosati v. 27 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro 28 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it Leave to Amend 9 16cv1808 1 is absolutely clear that the deficiencies of the complaint could not be cured by 2 amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 3 IV. Conclusion and Order 4 For the foregoing reasons, the Court: 5 1. 6 7 GRANTS Plaintiff’s Motions to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Nos. 16, 18). 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 8 Plaintiff's prison trust account the $350 filing fee owed in this case by garnishing 9 monthly payments from his account in an amount equal to twenty percent (20%) of the 10 preceding month's income and forwarding those payments to the Clerk of the Court each 11 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 12 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 13 ASSIGNED TO THIS ACTION. 14 15 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 16 4. DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 13). 17 5. DISMISSES this civil action for failing to state a claim upon which § 1983 18 19 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). 6. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 20 which to re-open his case by filing an Amended Complaint which cures all the 21 deficiencies of pleading described in this Order. If Plaintiff elects to file an Amended 22 Complaint, it must be complete by itself without reference to his original pleading. See 23 CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 24 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”). 25 If Plaintiff fails to file an Amended Complaint within the time provided, this civil 26 action will remain dismissed without prejudice based on his failure to state a claim upon 27 which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). 28 10 16cv1808 1 2 3 7. The Clerk of Court is directed to mail Plaintiff a copy of a court approved civil rights complaint form. IT IS SO ORDERED. 4 5 DATED: October 21, 2016 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 16cv1808

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