Hearod v. Giurbino et al, No. 3:2007cv01319 - Document 5 (S.D. Cal. 2007)
Court Description: ORDER granting 4 Motion for Leave to Proceed in forma pauperis imposing no initial partial filing fee and garnishiing $350 balance from prisoner's trust account and dismissing without prejudice the first amended complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii) & 1915A(b)(1). Mailed a copy of order to James Tilton and a 1983 complaint form to the plaintiff. Signed by Judge Marilyn L. Huff on 09/21/07. (agp)
Download PDF
<![CDATA[
Hearod v. Giurbino et al Doc. 5 Case 3:07-cv-01319-H-JMA Document 5 Filed 09/21/2007 Page 1 of 6 1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA WILLIE HEAROD, CDCR #T-09568, Civil No. Plaintiff, 12 vs. 15 16 17 18 19 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE AND GARNISHING $350 BALANCE FROM PRISONER’S TRUST ACCOUNT [Doc. No. 4]; AND 13 14 07-1319 H (JMA) (3) DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(b)(ii) & 1915A(b)(1) GIURBINO, Warden; CHARLES PICKETT, M.D.; JOHN PARSON, M.D.; JEANNE WOODFORD, Director of the Department of Corrections; SYLVIA GARCIA, Warden; P. CHAN, M.D.; and DOES 1-30, Defendants. 20 21 22 23 Plaintiff, Willie Hearod, a state inmate currently incarcerated at California Mens Colony 24 located in San Luis Obispo, California and proceeding pro se, initially filed a civil rights action 25 pursuant to 42 U.S.C. § 1983. 26 Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, he 27 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [Doc. No. 28 K:\COMMON\EVERYONE\_EFILE-PROSE\H\07-1319-FAC.wpd, 9217 -1- 07cv1319 Dockets.Justia.com Case 3:07-cv-01319-H-JMA Document 5 Filed 09/21/2007 Page 2 of 6 1 4]. Before the Court had the opportunity to screen Plaintiff’s Complaint, he filed a First 2 Amended Complaint (“FAC”) on August 27, 2007.1 3 I. Motion to Proceed IFP [Doc. No. 4] 4 Effective April 9, 2006, all parties instituting any civil action, suit or proceeding in a 5 district court of the United States, except an application for writ of habeas corpus, must pay a 6 filing fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure 7 to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. 8 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners 9 granted leave to proceed IFP remain obligated to pay the entire fee in installments, regardless 10 of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 11 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a 13 prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account 14 statement (or institutional equivalent) for the prisoner for the six-month period immediately 15 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 16 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 17 payment of 20% of (a) the average monthly deposits in the account for the past six months, or 18 (b) the average monthly balance in the account for the past six months, whichever is greater, 19 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 20 institution having custody of the prisoner must collect subsequent payments, assessed at 20% 21 of the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and 22 forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 23 § 1915(b)(2). 24 //// 25 //// 26 1 27 28 A review of Plaintiff’s First Amended Complaint indicates that Plaintiff has failed to comply with S.D. CAL. CIVLR 15.1. Plaintiff attached several exhibits to his original Complaint which he refers to in his First Amended Complaint. However, Plaintiff failed to attach these exhibits to his First Amended Complaint. The Local Rule provides, in part, that “all amended pleadings shall contain copies of all exhibits referred to in such amended pleadings.” Id. K:\COMMON\EVERYONE\_EFILE-PROSE\H\07-1319-FAC.wpd, 9217 -2- 07cv1319 Case 3:07-cv-01319-H-JMA Document 5 Filed 09/21/2007 Page 3 of 6 1 The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C. 2 § 1915(a)(1), and that he has attached a certified copy of his trust account statement pursuant to 3 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Andrews, 398 F.3d at 1119. Plaintiff’s trust 4 account statement shows that he has no available funds from which to pay filing fees at this time. 5 See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from 6 bringing a civil action or appealing a civil action or criminal judgment for the reason that the 7 prisoner has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 8 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal 9 of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds available to 10 him when payment is ordered.”). Therefore, the Court GRANTS Plaintiff’s Motion to Proceed 11 IFP [Doc. No. 4] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, 12 the entire $350 balance of the filing fees mandated shall be collected and forwarded to the Clerk 13 of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 14 III. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A 15 A. Standard 16 The PLRA also obligates the Court to review complaints filed by all persons proceeding 17 IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 18 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 19 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 20 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 21 provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion 22 thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from 23 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 24 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 25 446 (9th Cir. 2000) (§ 1915A). 26 Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte 27 dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is 28 frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, K:\COMMON\EVERYONE\_EFILE-PROSE\H\07-1319-FAC.wpd, 9217 -3- 07cv1319 Case 3:07-cv-01319-H-JMA Document 5 Filed 09/21/2007 Page 4 of 6 1 324 (1989). However 28 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing 2 an IFP or prisoner’s suit make and rule on its own motion to dismiss before effecting service of 3 the Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 (“[S]ection 4 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint 5 that fails to state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) 6 (discussing 28 U.S.C. § 1915A). 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 9 plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) 10 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s 11 duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept., 12 839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v. 13 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). 14 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person 15 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived 16 the claimant of some right, privilege, or immunity protected by the Constitution or laws of the 17 United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122 18 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). 19 Plaintiff names as Defendants, Giurbino, the Warden for Centinela State Prison, Charles 20 Pickett, Chief Medical Officer (“CMO”), and Jeanne Woodford, former Director of the 21 Department of Corrections, and Sylvia Garcia, former Warden for Calipatria State Prison. There 22 are no factual allegations contained in Plaintiff’s First Amended Complaint pertaining to these 23 Defendants outside their roles as supervisors. However, there is no respondeat superior liability 24 under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, 25 “[t]he inquiry into causation must be individualized and focus on the duties and responsibilities 26 of each individual defendant whose acts or omissions are alleged to have caused a constitutional 27 deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 28 U.S. 362, 370-71 (1976)). In order to avoid the respondeat superior bar, Plaintiff must allege K:\COMMON\EVERYONE\_EFILE-PROSE\H\07-1319-FAC.wpd, 9217 -4- 07cv1319 Case 3:07-cv-01319-H-JMA Document 5 Filed 09/21/2007 Page 5 of 6 1 personal acts by each individual Defendant which have a direct causal connection to the 2 constitutional violation at issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); 3 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). As a supervisor, a Defendant may only be 4 held liable for the allegedly unconstitutional violations of his subordinates if Plaintiff alleges 5 specific facts which show: (1) how or to what extent this supervisor personally participated in 6 or directed Defendants’ actions, and (2) in either acting or failing to act, the supervisor was an 7 actual and proximate cause of the deprivation of his constitutional rights. Johnson v. Duffy, 588 8 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, however, Plaintiff’s First Amended 9 Complaint in no way sets forth facts which might be liberally construed to support an 10 individualized constitutional claim against Giurbino, Pickett, Garcia or Woodford. Accordingly, 11 the claims against these Defendants are dismissed for failing to state a claim upon which § 1983 12 relief can be granted. 13 Thus, the Court finds that Plaintiff’s Complaint fails to state a section 1983 claim upon 14 which relief may be granted, and is therefore subject to dismissal pursuant to 28 U.S.C. 15 §§ 1915(e)(2)(b) & 1915A(b). Because it is not altogether certain that Plaintiff would be unable 16 to allege any additional facts, however, the Court will provide Plaintiff with an opportunity to 17 amend his pleading in light of the standards set forth above. See Lopez, 203 F.3d at 1130-31. 18 IV. Conclusion and Order 19 Good cause appearing therefor, IT IS HEREBY ORDERED that: 20 1. 21 22 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 23 designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee 24 owed in this case by collecting monthly payments from the account in an amount equal to twenty 25 percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court 26 each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). 27 ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 28 ASSIGNED TO THIS ACTION. K:\COMMON\EVERYONE\_EFILE-PROSE\H\07-1319-FAC.wpd, 9217 -5- 07cv1319 Case 3:07-cv-01319-H-JMA 1 3. Document 5 Filed 09/21/2007 Page 6 of 6 The Clerk of the Court is directed to serve a copy of this Order on James Tilton, 2 Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, 3 Sacramento, California 95814. 4 IT IS FURTHER ORDERED that: 5 4. Plaintiff’s First Amended Complaint is DISMISSED without prejudice pursuant 6 to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) 7 days leave from the date this Order is “Filed” in which to file a First Amended Complaint which 8 cures all the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be 9 complete in itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. 10 Defendants not named and all claims not re-alleged in the Amended Complaint will be deemed 11 to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if 12 Plaintiff’s Amended Complaint fails to state a claim upon which relief may be granted, it may 13 be dismissed without further leave to amend and may hereafter be counted as a “strike” under 14 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996). 15 5. The Clerk of the Court is directed to mail a Court approved form § 1983 complaint 16 to Plaintiff. 17 IT IS SO ORDERED. 18 DATED: September 21, 2007 19 20 _________________________________________ HON. MARILYN L. HUFF United States District Judge 21 22 23 24 25 26 27 28 K:\COMMON\EVERYONE\_EFILE-PROSE\H\07-1319-FAC.wpd, 9217 -6- 07cv1319
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
