Camillo v. Brown et al, No. 3:2014cv02358 - Document 3 (S.D. Cal. 2014)
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� 39;s Complaint is DISMISSED for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). However, Plaintiff is GRANTED forty-five (45) days leave from the date of this Order in which to file an Amended Complaint. (Order electronically transmitted to Secretary of CDCR). Signed by Judge Larry Alan Burns on 10/10/14. (All non-registered users served via U.S. Mail Service)(form mailed to plaintiff)(kas)
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Camillo v. Brown et al Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 PHIL ELIZALDE CAMILLO, CDCR # AS-4716, Civil No. Plaintiff, 13 14 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF Doc. No. 2] vs. 15 16 14cv2358 LAB (RBB) AND BROWN, et al., 17 18 Defendants. 19 (2) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND 28 U.S.C. § 1915A(b)(1) 20 21 Phil Elizalde Camillo (“Plaintiff”), a state prisoner currently incarcerated at the 22 California Rehabilitation Center located in Norco, California, and proceeding pro se, has 23 filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. 24 Plaintiff has not prepaid the $400 filing fee mandated by 28 U.S.C. § 1914(a); 25 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 26 U.S.C. § 1915(a) (ECF Doc. No. 2). 27 28 I:\Everyone\_EFILE-PROSE\LAB\14cv2358-grt-IFP&dsm.wpd -1- 14cv2358 LAB (RBB) Dockets.Justia.com 1 I. 2 MOTION TO PROCEED IFP 3 All parties instituting any civil action, suit or proceeding in a district court of the United 4 States, except an application for writ of habeas corpus, must pay a filing fee. See 28 5 U.S.C. § 1914(a).1 An action may proceed despite the plaintiff’s failure to prepay the 6 entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 7 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a 8 prisoner and he is granted leave to proceed IFP, he nevertheless remains obligated to pay 9 the entire fee in installments, regardless of whether his action is ultimately dismissed. 10 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 11 2002). 12 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 13 (“PLRA”), a prisoner seeking leave to proceed IFP must also submit a “certified copy 14 of the trust fund account statement (or institutional equivalent) for . . . the six-month 15 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 16 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 17 statement, the Court assesses an initial payment of 20% of (a) the average monthly 18 deposits in the account for the past six months, or (b) the average monthly balance in the 19 account for the past six months, whichever is greater, unless the prisoner has no assets. 20 See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of 21 the prisoner then collects subsequent payments, assessed at 20% of the preceding 22 month’s income, in any month in which the prisoner’s account exceeds $10, and 23 forwards them to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 24 In support of his IFP application, Plaintiff has submitted the certified copies of his 25 trust account statements required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. 26 In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a), (b); Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule (eff. May 28 1, 2013). However, the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id. 1 27 I:\Everyone\_EFILE-PROSE\LAB\14cv2358-grt-IFP&dsm.wpd -2- 14cv2358 LAB (RBB) 1 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statements, 2 as well as the attached prison certificate where he is currently incarcerated verifying his 3 account history and available balances, and has determined that Plaintiff has no available 4 funds from which to pay filing fees at this time. See 28 U.S.C. § 1915(b)(4) (providing 5 that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing 6 a civil action or criminal judgment for the reason that the prisoner has no assets and no 7 means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding 8 that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s 9 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him 10 when payment is ordered.”). 11 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF Doc. No. 12 2) and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the 13 entire $350 balance of the filing fees mandated must be garnished by the California 14 Department of Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of 15 the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 16 § 1915(b)(1). 17 II. 18 INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b) 19 A. Standard of Review 20 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the 21 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP 22 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] 23 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 24 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as 25 soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under 26 these statutes, the Court must sua sponte dismiss complaints, or any portions thereof, 27 which are frivolous, malicious, fail to state a claim, or which seek damages from 28 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. I:\Everyone\_EFILE-PROSE\LAB\14cv2358-grt-IFP&dsm.wpd -3- 14cv2358 LAB (RBB) 1 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. 2 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 3 All complaints must contain “a short and plain statement of the claim showing that 4 the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are 5 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 6 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 7 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 8 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 9 requires the reviewing court to draw on its judicial experience and common sense.” Id. 10 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 11 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 12 “When there are well-pleaded factual allegations, a court should assume their 13 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 14 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 15 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 16 allegations of material fact and must construe those facts in the light most favorable to 17 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 18 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 19 However, while the court “ha[s] an obligation where the petitioner is pro se, 20 particularly in civil rights cases, to construe the pleadings liberally and to afford the 21 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 22 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 23 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 24 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 25 Here, Plaintiff alleges that his constitutional rights were violated when he was 26 subjected to a false arrest in January of 2011. “A claim may be dismissed [for failing to 27 state a claim] on the ground that it is barred by the applicable statute of limitations only 28 when ‘the running of the statute is apparent on the face of the complaint.’” Von Saher I:\Everyone\_EFILE-PROSE\LAB\14cv2358-grt-IFP&dsm.wpd -4- 14cv2358 LAB (RBB) 1 v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting 2 Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). However, “‘[a] 3 complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove 4 no set of facts that would establish the timeliness of the claim.’” Id. (quoting Supermail 5 Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)). Therefore, in a case like this 6 one, where the running of the statute of limitations is apparent on the face of the 7 Complaint, the Court may dismiss it for failure to state a claim, but only after the 8 Plaintiff has been provided an opportunity to allege facts which, if proved, might support 9 tolling. See Cervantes, 5 F.3d at 1276-77; see also Tahoe-Sierra Pres. Council, Inc. v. 10 Tahoe Reg’l Planning Agency, 216 F.3d 764, 788 (9th Cir. 2000) (court may raise the 11 defense of statute of limitations sua sponte); Hughes v. Lott, 350 F.3d 1157, 1163 (11th 12 Cir. 2003) (upholding sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B) of prisoner’s 13 time-barred complaint). 14 Section 1983 contains no specific statute of limitation; therefore, federal courts 15 apply the forum state’s statute of limitations for personal injury actions. Jones, 393 F.3d 16 at 927; Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Fink v. Shedler, 192 17 F.3d 911, 914 (9th Cir. 1999). Before 2003, California’s statute of limitations was one 18 year. Jones, 393 F.3d at 927. Effective January 1, 2003, the limitations period was 19 extended to two years. Id. (citing CAL. CIV. PROC. CODE § 335.1). 20 The law of the forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 21 394 (2007) (citing Hardin v. Straub, 490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 22 927 (noting that in actions where the federal court borrows the state statute of limitation, 23 the federal court also borrows all applicable provisions for tolling the limitations period 24 found in state law). Under California law, the statute of limitations for prisoners serving 25 less than a life sentence is tolled for two years. CAL. CIV. PROC. CODE § 352.1(a); 26 Johnson v. California, 207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 27 543 U.S. 499 (2005). Accordingly, the effective statute of limitations for most California 28 prisoners is three years for claims accruing before January 1, 2003 (one year limitations I:\Everyone\_EFILE-PROSE\LAB\14cv2358-grt-IFP&dsm.wpd -5- 14cv2358 LAB (RBB) 1 period plus two year statutory tolling), and four years for claims accruing thereafter (two 2 year limitations period plus two years statutory tolling). Avery v. Moreno, Civil Case No. 3 2:12-CV-3083 KJN P, 2014 WL 413025 at *10 (E.D. Cal. Jan. 31, 2014). 4 Unlike the length of the limitations period, however, “the accrual date of a § 1983 5 cause of action is a question of federal law that is not resolved by reference to state law.” 6 Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543-44 (federal law governs when a 7 § 1983 cause of action accrues). “Under the traditional rule of accrual . . . the tort cause 8 of action accrues, and the statute of limitation begins to run, when the wrongful act or 9 omission results in damages.” Wallace, 549 U.S. at 391. Put another way, “[u]nder 10 federal law, a claim accrues when the plaintiff knows or has reason to know of the injury 11 which is the basis of the action.” Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174 12 F.3d 987, 991 (9th Cir. 1999). 13 Plaintiff’s Complaint was filed on September 29, 2014, but his claims are alleged 14 to arise in January of 2011. Thus, Plaintiff alleges the wrongful acts that caused him 15 harm occurred more than three years before he initiated this suit. This date of accrual 16 exceeds California’s statute of limitations. Plaintiff may be entitled to tolling during his 17 current incarceration if he was incarcerated prior to January of 2013 when the statute of 18 limitations ran. See CAL. CODE CIV. PROC. § 335.1 (tolling statute of limitations “for a 19 maximum of 2 years” during a prisoner’s incarceration). 20 Therefore, the Court finds Plaintiff’s Complaint is subject to sua sponte dismissal 21 because it is clear from the face of his pleading that his claims are barred by the statute 22 of limitations. See Von Saher, 592 F.3d at 969. 23 Because Plaintiff is proceeding without counsel, and it is not “absolutely clear that 24 no amendment can cure” the defects of pleading set forth above, the Court will grant him 25 an opportunity to amend. See Lucas v. Dept. of Corr., 66 F.3d 245, 248 (9th Cir. 1995); 26 Lopez, 203 F.3d at 1131; Cervantes, 5 F.3d at 1276-77. 27 /// 28 /// I:\Everyone\_EFILE-PROSE\LAB\14cv2358-grt-IFP&dsm.wpd -6- 14cv2358 LAB (RBB) 1 III. 2 CONCLUSION AND ORDER 3 Based on the foregoing, IT IS HEREBY ORDERED that: 4 1. 5 6 Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2) is GRANTED. 2. The Secretary of California Department of Corrections and Rehabilitation, 7 or his designee, shall collect from Plaintiff’s prison trust account the $350 balance of the 8 filing fee owed in this case by collecting monthly payments from the account in an 9 amount equal to twenty percent (20%) of the preceding month’s income and forward 10 payments to the Clerk of the Court each time the amount in the account exceeds $10 in 11 accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY 12 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 13 3. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey 14 Beard, Secretary, California Department of Corrections and Rehabilitation, 1515 S 15 Street, Suite 502, Sacramento, California 95814. 16 IT IS FURTHER ORDERED that: 17 4. Plaintiff’s Complaint is DISMISSED for failing to state a claim upon which 18 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 19 However, Plaintiff is GRANTED forty-five (45) days leave from the date of this Order 20 in which to file an Amended Complaint which cures all the deficiencies of pleading 21 noted above. Plaintiff’s Amended Complaint must be complete in itself without 22 reference to his original pleading. See S.D. CAL. CIVLR. 15.1. Defendants not named 23 and all claims not re-alleged in the Amended Complaint will be considered waived. See 24 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 25 26 5. The Clerk of Court is directed to mail a copy of a form § 1983 complaint. DATED: October 10, 2014 27 28 HONORABLE LARRY ALAN BURNS United States District Judge I:\Everyone\_EFILE-PROSE\LAB\14cv2358-grt-IFP&dsm.wpd -7- 14cv2358 LAB (RBB)
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