-BGS Thornton v. Neotti et al, No. 3:2010cv01677 - Document 3 (S.D. Cal. 2010)
Court Description: ORDER granting plaintiff's 2 motion to proceed in forma pauperis; the Secretary of California Department of Corrections and Rehabilitation, or his designee, shall collect from Plaintiffs prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the account in an amount equal to twenty percent (20%) of the preceding months income and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2); Plaintiffs 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. (Order electronically transmitted to Matthew Cate, Secretary CDCR). Signed by Judge Larry Alan Burns on 8/20/10. (All non-registered users served via U.S. Mail Service)(kaj)
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-BGS Thornton v. Neotti et al Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 WILLIAM CECIL THORNTON, CDCR #V-64547, Civil No. Plaintiff, 13 vs. 16 17 18 ORDER: (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO PARTIAL FILING FEE AND GARNISHING $ 350 BALANCE FROM PRISONER’S TRUST ACCOUNT PURSUANT TO 28 U.S.C. § 1915(a) [Doc. No. 2]; 14 15 10cv1677 LAB (BGS) GEORGE NEOTTI, et al., AND 19 20 Defendants. 21 (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 22 23 William Cecil Thornton (“Plaintiff”), a state prisoner currently incarcerated at the 24 California Correctional Institution located in Tehachapi, California, and proceeding in pro se, 25 has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff has not prepaid the 26 $350 filing fee mandated by 28 U.S.C. § 1914(a); instead he has filed a Motion to Proceed In 27 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. 28 /// K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\10cv1677-grt IFP & dsm.wpd 1 10cv1677 LAB (BGS) Dockets.Justia.com 1 I. M OTION TO P ROCEED IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the United 3 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 4 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee 5 only if the plaintiff 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, prisoners granted leave to 7 proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their 8 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 9 844, 847 (9th Cir. 2002). 10 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a 11 prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account 12 statement (or institutional equivalent) for the prisoner for the six-month period immediately 13 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 14 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 15 payment of 20% of (a) the average monthly deposits in the account for the past six months, or 16 (b) the average monthly balance in the account for the past six months, whichever is greater, 17 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 18 institution having custody of the prisoner must collect subsequent payments, assessed at 20% of 19 the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and 20 forward those payments to the Court until the entire filing fee is paid. 21 § 1915(b)(2). See 28 U.S.C. 22 The Court finds that Plaintiff has no available funds from which to pay filing fees at this 23 time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited 24 from bringing a civil action or appealing a civil action or criminal judgment for the reason that 25 the prisoner has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 26 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 27 dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds 28 available to him when payment is ordered.”). Therefore, the Court GRANTS Plaintiff’s Motion K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\10cv1677-grt IFP & dsm.wpd 2 10cv1677 LAB (BGS) 1 to Proceed IFP [Doc. No. 2] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). 2 However, the entire $350 balance of the filing fees mandated shall be collected and forwarded 3 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 4 § 1915(b)(1). 5 III. 6 S CREENING P URSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 7 The PLRA also obligates the Court to review complaints filed by all persons proceeding 8 IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 9 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 10 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 11 practicable after docketing.” 12 provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, 13 which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who 14 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126- 15 27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) 16 (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing 17 § 1915A). See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 18 “[W]hen determining whether a complaint states a claim, a court must accept as true all 19 allegations of material fact and must construe those facts in the light most favorable to the 20 plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) 21 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s 22 duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept., 23 839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v. 24 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a 25 pro se civil rights complaint, the court may not “supply essential elements of claims that were 26 not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th 27 Cir. 1982). “Vague and conclusory allegations of official participation in civil rights violations 28 are not sufficient to withstand a motion to dismiss.” Id. K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\10cv1677-grt IFP & dsm.wpd 3 10cv1677 LAB (BGS) 1 A. 2 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person 3 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived 4 the claimant of some right, privilege, or immunity protected by the Constitution or laws of the 5 United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117, 2122 6 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). 42 U.S.C. § 1983 Liability 7 B. 8 Plaintiff alleges that, while he was housed at the Richard J. Donovan Correctional Facility 9 (“RJD”), he was denied adequate access to the prison’s law library. (See Compl. at 4-7.) 10 Prisoners do “have a constitutional right to petition the government for redress of their 11 grievances, which includes a reasonable right of access to the courts.” O’Keefe v. Van Boening, 12 82 F.3d 322, 325 (9th Cir. 1996); accord Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). 13 In Bounds, 430 U.S. at 817, the Supreme Court held that “the fundamental constitutional right 14 of access to the courts requires prison authorities to assist inmates in the preparation and filing 15 of meaningful legal papers by providing prisoners with adequate law libraries or adequate 16 assistance from persons who are trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977). 17 To establish a violation of the right to access to the courts, however, a prisoner must allege facts 18 sufficient to show that: (1) a nonfrivolous legal attack on his conviction, sentence, or conditions 19 of confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a 20 result. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An “actual injury” is defined as “actual 21 prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing 22 deadline or to present a claim.” Id. at 348; see also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 23 1994); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); Keenan v. Hall, 83 F.3d 1083, 1093 24 (9th Cir. 1996). Access to Courts claim 25 Here, Plaintiff has failed to alleged any actions with any particularity that have precluded 26 his pursuit of a non-frivolous direct or collateral attack upon either his criminal conviction or 27 sentence or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to 28 access to the courts protects only an inmate’s need and ability to “attack [his] sentence[], directly K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\10cv1677-grt IFP & dsm.wpd 4 10cv1677 LAB (BGS) 1 or collaterally, and ... to challenge the conditions of [his] confinement.”); see also Christopher 2 v. Harbury, 536 U.S. 403, 415 (2002) (the non-frivolous nature of the “underlying cause of 3 action, whether anticipated or lost, is an element that must be described in the complaint, just as 4 much as allegations must describe the official acts frustrating the litigation.”). Moreover, 5 Plaintiff has not alleged facts sufficient to show that he has been actually injured by any specific 6 defendant’s actions. Lewis, 518 U.S. at 351. 7 In short, Plaintiff has not alleged that “a complaint he prepared was dismissed,” or that 8 he was “so stymied” by any individual defendant’s actions that “he was unable to even file a 9 complaint,” direct appeal or petition for writ of habeas corpus that was not “frivolous.” Lewis, 10 518 U.S. at 351; Christopher, 536 U.S. at 416 (“like any other element of an access claim[,] ... 11 the predicate claim [must] be described well enough to apply the ‘nonfrivolous’ test and to show 12 that the ‘arguable’ nature of the underlying claim is more than hope.”). Therefore, Plaintiff’s 13 access to courts claims must be dismissed for failing to state a claim upon which section 1983 14 relief can be granted. See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446. 15 C. 16 Plaintiff names Warden Neotti as a Defendant in this matter but fails to set forth any 17 factual allegations with regard to Defendant Neotti in the body of Plaintiff’s Complaint. Thus, 18 it appears that Plaintiff seeks to hold Defendant Neotti liable in his supervisory capacity. 19 However, there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 20 9 F.3d 1433, 1437-38 (9th Cir. 1993). 21 individualized and focus on the duties and responsibilities of each individual defendant whose 22 acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 23 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). In order 24 to avoid the respondeat superior bar, Plaintiff must allege personal acts by each individual 25 Defendant which have a direct causal connection to the constitutional violation at issue. See 26 Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th 27 Cir. 1989). 28 /// Respondeat Superior K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\10cv1677-grt IFP & dsm.wpd Instead, “[t]he inquiry into causation must be 5 10cv1677 LAB (BGS) 1 Supervisory prison officials may only be held liable for the allegedly unconstitutional 2 violations of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what 3 extent they personally participated in or directed a subordinate’s actions, and (2) in either acting 4 or failing to act, they were an actual and proximate cause of the deprivation of Plaintiff’s 5 constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, 6 however, Plaintiff’s Complaint fails to set forth facts which might be liberally construed to 7 support an individualized constitutional claim against Defendant Neotti. 8 Accordingly, the Court finds that Plaintiff’s Complaint fails to state a section 1983 claim 9 upon which relief may be granted , and is therefore subject to dismissal pursuant to 28 U.S.C. 10 §§ 1915(e)(2)(b) & 1915A(b). The Court will provide Plaintiff with an opportunity to amend 11 his pleading to cure the defects set forth above. Plaintiff is warned that if his amended complaint 12 fails to address the deficiencies of pleading noted above, it may be dismissed with prejudice and 13 without leave to amend. 14 To the extent that Plaintiff chooses to file an Amended Complaint, the Court cautions 15 Plaintiff that his entire action may be subject to dismissal on the grounds that it appears that he 16 failed to exhaust his administrative remedies prior to bringing this action. 17 The PLRA amended 42 U.S.C. § 1997e(a) to provide that “[n]o action shall be brought 18 with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison 19 or other correctional facility until such administrative remedies as are available are exhausted.” 20 42 U.S.C. § 1997e(a). “Once within the discretion of the district court, exhaustion in cases 21 covered by § 1997e(a) is now mandatory.” Porter v. Nussle, 534 U.S. 516 (2002). “The 22 ‘available’ ‘remed[y]’ must be ‘exhausted’ before a complaint under § 1983 may be entertained,” 23 Booth v. Churner, 532 U.S. 731, 738 (2001), and “regardless of the relief offered through 24 administrative procedures.” Id. at 741. Moreover, the Supreme Court held in Woodford v. Ngo, 25 548 U.S. 81, 83-84 (2006) that “[p]roper exhaustion demands compliance with an agency’s 26 deadlines and other critical procedural rules because no adjudicative system can function 27 effectively without imposing some orderly structure on the court of its proceedings.” Id. at 90. 28 The Court further held that “[proper exhaustion] means ... a prisoner must complete the K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\10cv1677-grt IFP & dsm.wpd 6 10cv1677 LAB (BGS) 1 administrative review process in accordance with the applicable procedural rules . . . as a 2 precondition to bring suit in federal court.” Id. 3 The plain language of 42 U.S.C. § 1997e(a) provides that no § 1983 action “shall be 4 brought . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. 5 § 1997e(a) (emphasis added). The Ninth Circuit’s decision in McKinney v. Carey, 311 F.3d 6 1198 (9th Cir. 2002) holds that prisoners who are incarcerated at the time they file a civil action 7 which challenges the conditions of their confinement are required to exhaust “all administrative 8 remedies as are available” as a mandatory precondition to suit. See McKinney, 311 F.3d at 1198; 9 see also Perez v. Wis. Dep’t of Corrections, 182 F.3d 532, 534-35 (7th Cir. 1999) (“Congress 10 could have written a statute making exhaustion a precondition to judgment, but it did not. The 11 actual statute makes exhaustion a precondition to suit.”) (emphasis original). Section 1997e(a) 12 “clearly contemplates exhaustion prior to the commencement of the action as an indispensable 13 requirement. Exhaustion subsequent to the filing of the suit will not suffice.” McKinney, 311 14 F.3d at 1198 (quoting Medina-Claudio v. Rodriquez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002)). 15 III. 16 C ONCLUSION AND O RDER 17 Good cause appearing therefor, IT IS HEREBY ORDERED that: 18 1. 19 20 Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2] is GRANTED. 2. The Secretary of California Department of Corrections and Rehabilitation, or his 21 designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee 22 owed in this case by collecting monthly payments from the account in an amount equal to twenty 23 percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court 24 each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). 25 ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 26 ASSIGNED TO THIS ACTION. 27 28 3. The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate, Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\10cv1677-grt IFP & dsm.wpd 7 10cv1677 LAB (BGS) 1 Sacramento, California 95814. 2 IT IS FURTHER ORDERED that: 3 4. Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. 4 §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave 5 from the date this Order is “Filed” in which to file a First Amended Complaint which cures all 6 the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete in 7 itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants 8 not named and all claims not re-alleged in the Amended Complaint will be deemed to have been 9 waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended 10 Complaint fails to state a claim upon which relief may be granted, it may be dismissed without 11 further leave to amend and may hereafter be counted as a “strike” under 28 U.S.C. § 1915(g). 12 See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996). 13 14 IT IS SO ORDERED. DATED: August 20, 2010 15 16 H ONORABLE L ARRY A LAN B URNS United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\10cv1677-grt IFP & dsm.wpd 8 10cv1677 LAB (BGS)
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