-RBB Willis v. McEwen et al, No. 3:2011cv01683 - Document 3 (S.D. Cal. 2011)
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). Plaintiff 9;s Complaint is dismissed without prejudice pursuan to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). Plaintiff is granted forty five (45) days leave from the date this Order is stamped "Filed" in which to file a First Amended Complaint. (Order electronically transmitted to Matthew Cate, Secretary CDCR). Signed by Judge Larry Alan Burns on 10/3/11. (All non-registered users served via U.S. Mail Service)(form 1983 complaint also mailed to plaintiff)(kaj)
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-RBB Willis v. McEwen et al Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RACHEE A. WILLIS, CDCR #F-91221, Civil No. Plaintiff, 12 vs. 15 16 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE, GARNISHING $350 FROM PRISONER’S TRUST ACCOUNT [ECF No. 3]; 13 14 11-1683 LAB (RBB) (2) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) and 1915A(b) MS. McEWEN; G.J. JANDA; N.E. LANDERROS; CERROS, 17 Defendant. 18 19 20 21 Plaintiff, Rachee A. Willis, a state prisoner currently incarcerated at Calipatria State 22 Prison located in Calipatria, California and proceeding pro se, has filed a civil rights action filed 23 pursuant to 42 U.S.C. § 1983. Plaintiff has not prepaid the $350 filing fee mandated by 28 24 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 25 to 28 U.S.C. § 1915(a) [ECF No. 2]. 26 /// 27 /// 28 /// K :\C O M M O N \E V E R Y O N E \_ E F I L E - P R O S E \L A B \ 1 1 c v 1 6 8 3 -g r t IP & d is m is s .w p d , 1 0 5 1 1 -1- 11cv1683 LAB (RBB) Dockets.Justia.com 1 I. Motion to Proceed IFP [ECF No. 2] 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 Section 1915, as amended by the Prison Litigation Reform Act (“PLRA”), further 11 requires that each prisoner seeking leave to proceed IFP submit a “certified copy of [his] trust 12 fund account statement (or institutional equivalent) ... for the six-month period immediately 13 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). Using these certified trust 14 account statements, the Court must assess an initial payment of 20% of (a) the average monthly 15 deposit, or (b) the average monthly balance in the account for the past six months, whichever is 16 greater, and collect that amount as the prisoner’s initial partial filing fee, unless he has no current 17 assets with which to pay. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4); Taylor, 281 F.3d 18 at 850. Thereafter, the institution having custody of the prisoner must collect subsequent 19 payments, assessed at 20% of the preceding month’s income, in any month in which his account 20 exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 21 U.S.C. § 1915(b)(2); Taylor, 281 F.3d at 847. 22 The Court finds that Plaintiff has submitted an affidavit that complies with 28 U.S.C. 23 § 1915(a)(1) [ECF No. 2] as well as a certified copy of his prison trust account statement 24 pursuant to 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3.2. 25 indicates that he has insufficient funds from which to pay an initial partial filing fee. Plaintiff’s trust account currently 26 Accordingly, the Court hereby GRANTS Plaintiff’s Motion to Proceed IFP [ECF No. 2], 27 and assesses no initial partial filing fee at this time. See 28 U.S.C. § 1915(b)(1) (court shall 28 assess initial partial filing fee only “when funds exist”); 28 U.S.C. § 1915(b)(4) (“In no event K :\C O M M O N \E V E R Y O N E \_ E F I L E - P R O S E \L A B \ 1 1 c v 1 6 8 3 -g r t IP & d is m is s .w p d , 1 0 5 1 1 -2- 11cv1683 LAB (RBB) 1 shall a prisoner be prohibited from bringing a civil action . . . for the reason that the prisoner has 2 no assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 3 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s 4 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when 5 payment is ordered.”). However, Plaintiff is required to pay the full $350 filing fee mandated 6 by 28 U.S.C. §§ 1914(a) and 1915(b)(1), by subjecting any future funds credited to his prison 7 trust account to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(2). 8 II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A 9 The PLRA also obligates the Court to review complaints filed by all persons proceeding 10 IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 11 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 12 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 13 practicable after docketing.” 14 provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion 15 thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from 16 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 17 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 18 446 (9th Cir. 2000) (§ 1915A). See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 19 Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte 20 dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is 21 frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 22 324 (1989). However 28 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing 23 an IFP or prisoner’s suit make and rule on its own motion to dismiss before effecting service of 24 the Complaint by the U.S. Marshal pursuant to F ED.R.C IV.P. 4(c)(2). Id. at 1127 (“[S]ection 25 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint 26 that fails to state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) 27 (discussing 28 U.S.C. § 1915A). 28 K :\C O M M O N \E V E R Y O N E \_ E F I L E - P R O S E \L A B \ 1 1 c v 1 6 8 3 -g r t IP & d is m is s .w p d , 1 0 5 1 1 -3- 11cv1683 LAB (RBB) 1 “[W]hen determining whether a complaint states a claim, a court must accept as true all 2 allegations of material fact and must construe those facts in the light most favorable to the 3 plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) 4 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s 5 duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept., 6 839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v. 7 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). 8 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person 9 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived 10 the claimant of some right, privilege, or immunity protected by the Constitution or laws of the 11 United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on 12 other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger, 769 F.2d 13 1350, 1354 (9th Cir. 1985) (en banc). 14 In his Complaint, Plaintiff alleges that he suffered from serious injuries when he was 15 involved in a riot between the Black and Hispanic inmates at Calipatria State Prison. (See 16 Compl. at 10-13.) Prison officials have a duty to take reasonable steps to protect inmates from 17 physical abuse. Farmer v. Brennan, 511 U.S. 825, 833 (1994). To establish a violation of this 18 duty, the prisoner must establish that prison officials were “deliberately indifferent” to serious 19 threats to the inmate’s safety. See Farmer, 511 U.S. at 834. To demonstrate a prison official 20 was deliberately indifferent to a serious threat to the inmate’s safety, the prisoner must show that 21 “the official [knew] of and disregard[ed]] an excessive risk to inmate. . . safety; the official must 22 both be aware of facts from which the inference could be drawn that a substantial risk of serious 23 harm exists, and [the official] must also draw the inference.” Id., at 837. To prove knowledge 24 of the risk, however, the prisoner may rely on circumstantial evidence; in fact, the very 25 obviousness of the risk may be sufficient to establish knowledge. See Farmer, 511 at 842. 26 While Plaintiff has alleged some serious allegations, he simply has not provided enough 27 facts from which the Court can determine whether he has stated an Eighth Amendment claim. 28 Specifically, it is not clear to the Court that Plaintiff has alleged sufficient facts to demonstrate K :\C O M M O N \E V E R Y O N E \_ E F I L E - P R O S E \L A B \ 1 1 c v 1 6 8 3 -g r t IP & d is m is s .w p d , 1 0 5 1 1 -4- 11cv1683 LAB (RBB) 1 that any of the named Defendants knew of a serious threat to Plaintiff’s safety. In order for the 2 Court to find “deliberate indifference,” Plaintiff has to show that the named Defendants “[knew] 3 of and disregard[ed]] an excessive risk to inmate. . . safety.” See Farmer, 511 U.S. at 837. 4 Plaintiff does not allege any facts to demonstrate that the Defendants knew that a riot would 5 occur or that Plaintiff would be injured as a result. Plaintiff’s allegations reference negligent 6 behavior on the part of Defendants which does not rise to the level of deliberate indifference. 7 Accordingly, Plaintiff’s Eighth Amendment Failure to Protect claims are dismissed for 8 failing to state a claim upon which § 1983 relief can be granted. 9 Finally, to the extent Plaintiff seek to sue Defendants based merely on their supervisory 10 positions, such allegations are insufficient to state a claim against these Defendants because 11 there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 12 1433, 1437-38 (9th Cir. 1993). Instead, “[t]he inquiry into causation must be individualized and 13 focus on the duties and responsibilities of each individual defendant whose acts or omissions are 14 alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th 15 Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). In order to avoid the 16 respondeat superior bar, Plaintiff must allege personal acts by each individual Defendant which 17 have a direct causal connection to the constitutional violation at issue. See Sanders v. Kennedy, 18 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 19 Supervisory prison officials may only be held liable for the allegedly unconstitutional 20 violations of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what 21 extent they personally participated in or directed a subordinate’s actions, and (2) in either acting 22 or failing to act, they were an actual and proximate cause of the deprivation of Plaintiff’s 23 constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, 24 however, Plaintiff’s Complaint fails to set forth facts which might be liberally construed to 25 support an individualized constitutional claim against Defendants McEwen or Janda. 26 /// 27 /// 28 /// K :\C O M M O N \E V E R Y O N E \_ E F I L E - P R O S E \L A B \ 1 1 c v 1 6 8 3 -g r t IP & d is m is s .w p d , 1 0 5 1 1 -5- 11cv1683 LAB (RBB) 1 For these reasons, the Court finds that Complaint fails to state a section 1983 claim upon 2 which relief may be granted, and is therefore subject to dismissal pursuant to 28 U.S.C. 3 §§ 1915(e)(2)(b) & 1915A(b). The Court will provide Plaintiff with an opportunity to amend 4 his pleading to cure the defects set forth above. 5 III. Conclusion and Order 6 Good cause appearing therefor, IT IS HEREBY ORDERED that: 7 1. 8 9 Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is GRANTED. 2. The Secretary of California Department of Corrections and Rehabilitation, or his 10 designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee 11 owed in this case by collecting monthly payments from the account in an amount equal to twenty 12 percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court 13 each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). 14 ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 15 ASSIGNED TO THIS ACTION. 16 3. The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate, 17 Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, 18 Sacramento, California 95814. 19 IT IS FURTHER ORDERED that: 20 4. Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. 21 §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave 22 from the date this Order is stamped “Filed” in which to file a First Amended Complaint which 23 cures all the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be 24 complete in itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. 25 Defendants not named and all claims not re-alleged in the Amended Complaint will be deemed 26 to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if 27 Plaintiff’s Amended Complaint fails to state a claim upon which relief may be granted, it may 28 K :\C O M M O N \E V E R Y O N E \_ E F I L E - P R O S E \L A B \ 1 1 c v 1 6 8 3 -g r t IP & d is m is s .w p d , 1 0 5 1 1 -6- 11cv1683 LAB (RBB) 1 be dismissed without further leave to amend and may hereafter be counted as a “strike” under 2 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996). 3 5. The Clerk of the Court is directed to mail a form § 1983 complaint to Plaintiff. 4 IT IS SO ORDERED. 5 6 DATED: October 3, 2011 7 8 H ONORABLE L ARRY A LAN B URNS United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K :\C O M M O N \E V E R Y O N E \_ E F I L E - P R O S E \L A B \ 1 1 c v 1 6 8 3 -g r t IP & d is m is s .w p d , 1 0 5 1 1 -7- 11cv1683 LAB (RBB)
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