Van Batenburg v. Paramo et al, No. 3:2017cv02214 - Document 20 (S.D. Cal. 2018)
Court Description: ORDER granting Plaintiff's 14 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). Court dismisses Plaintiff's Complaint for failure to state a claim upon which 1983 relief can be granted pursuant to 28 USC 1915(e)(2)(B)(ii) and 1915A(b)(1). Plaintiff granted 30 days leave from the date of this Order to file an Amended Complaint. Plaintiff may file an Amended Complaint by 1/29/2018. Signed by Judge Cynthia Bashant on 1/2/2018. (Order electronically transmitted to Secretary of CDCR) (Blank Amended 1983 Complaint form t/w copy of this Order mailed to Plaintiff) (All non-registered users served via U.S. Mail Service) (jah)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM VAN BATENBURG, Plaintiff, 12 15 ORDER: v. 13 14 Case No.: 17-cv-2214-BAS-KSC DANIEL PARAMO; B. SELF; R. OLIVARRIA; DEPUTY SHERIFF YORK; LUKASIC; ZUK; HERRERA, 16 Defendants. 17 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND 19 2) DISMISSING CIVIL ACTION FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§1915(e)(2) AND 1915A 20 On November 25, 2016, William Van Batenburg (“Plaintiff”), who was previously 21 incarcerated at the Richard J. Donovan Correctional Facility1 (“RJD”) in San Diego, 22 California, proceeding pro se, and in forma pauperis (“IFP”), filed this civil rights action 23 pursuant to 42 U.S.C. §1983 in the Northern District of California. On April 6, 2017, 24 United States District Judge William H. Orrick determined that the “bulk of [Plaintiff’s] 25 allegations are based on events that occurred at [RJD].” (ECF No. 16 at 1.) Therefore, this 18 26 27 1 28 Plaintiff is currently incarcerated at the California Medical Facility located in Vacaville, California. (ECF No. 19.) 1 17cv2214 1 matter was ordered to be transferred to the Southern District of California. (Id.) However, 2 District Judge Orrick dismissed all the claims that were based on events which “occurred 3 in the Northern District” prior to transferring this matter. (Id.) This Court received the 4 transferred action on October 31, 2017. (ECF No. 17.) The Court now considers Plaintiff’s 5 motion to proceed IFP, his request for appointment of counsel, and conducts a mandatory 6 screening of the Complaint. 7 I. MOTION TO PROCEED IN FORMA PAUPERIS 8 All parties instituting any civil action, suit or proceeding in a district court of the 9 United States, except an application for writ of habeas corpus, must pay a filing fee of 10 $400.2 See 28 U.S.C. §1914(a). The action may proceed despite a plaintiff’s failure to 11 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 12 §1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 13 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 14 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 15 Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 16 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 17 §1915(b)(1) & (2); Taylor v. Delatoore, 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. §1915(a)(2); 21 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 22 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 23 in the account for the past six months, or (b) the average monthly balance in the account 24 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 25 26 2 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 17cv2214 1 U.S.C. §1915(b)(1); 28 U.S.C. §1915(b)(4). The institution having custody of the prisoner 2 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 3 any month in which his account exceeds $10, and forwards those payments to the Court 4 until the entire filing fee is paid. See 28 U.S.C. §1915(b)(2); Bruce, 136 S. Ct. at 629. 5 In support of his request to proceed IFP, Plaintiff has submitted a prison certificate 6 authorized by an RJD accounting official and a copy of his CDCR Inmate Statement 7 Report. See ECF No. 14 at 8–9; 28 U.S.C. §1915(a)(2); Civ. L.R. 3.2; Andrews, 398 F.3d 8 at 1119. These documents show that Plaintiff had no monthly deposits in his account during 9 the 6-month period immediately preceding the filing of his Complaint, and an available 10 balance of zero at the time of filing. See ECF No. 14 at 8–9. Based on this accounting, the 11 Court grants Plaintiff’s request to proceed IFP, and will assess no initial partial filing fee 12 pursuant to 28 U.S.C. §1915(b)(1). See 28 U.S.C. §1915(b)(4) (providing that “[i]n no 13 event shall a prisoner be prohibited from bringing a civil action or appealing a civil action 14 or criminal judgment for the reason that the prisoner has no assets and no means by which 15 to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 16 (finding that 28 U.S.C. §1915(b)(4) acts as a “safety-valve” preventing dismissal of a 17 prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available 18 to him when payment is ordered.”). The Court will further direct the Secretary of the 19 CDCR, or his designee, to collect the entire $350 balance of the filing fees required by 28 20 U.S.C. §1914 and forward them to the Clerk of the Court pursuant to the installment 21 payment provisions set forth in 28 U.S.C. §1915(b)(1). See id. 22 II. REQUEST FOR APPOINTMENT OF COUNSEL 23 Plaintiff requests that the Court to appoint him counsel “to handle all court 24 proceedings hereafter.” (Compl. at 15.) However, there is no constitutional right to counsel 25 in a civil case. Lassiter v. Dep’t of Soc. Services, 452 U.S. 18, 25 (1981). While under 28 26 U.S.C. §1915(e)(1), district courts have some limited discretion to “request” that an 27 attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 28 1103 (9th Cir. 2004), this discretion is rarely exercised and only under “exceptional 3 17cv2214 1 circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A 2 finding of exceptional circumstances requires “an evaluation of the likelihood of the 3 plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to articulate his 4 claims ‘in light of the complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 5 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Applying these 6 factors to Plaintiff’s case, the Court denies his request for appointment of counsel. The 7 pleadings filed by Plaintiff to date demonstrate that while Plaintiff may not be trained in 8 law, he is capable of legibly articulating the facts and circumstances relevant to his claims, 9 which are typical, straightforward, and not legally “complex.” Agyeman, 390 F.3d at 1103. 10 Therefore, neither the interests of justice nor any exceptional circumstances warrant the 11 appointment of counsel in this case at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th 12 Cir. 1987); Terrell, 935 F.2d at 1017. 13 III. INITIAL SCREENING PER 28 U.S.C. §§1915(E)(2)(B) AND 1915A(B) 14 A. 15 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 16 answer screening pursuant to 28 U.S.C. §1915(e)(2) and §1915A(b). Under these statutes, 17 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 18 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 19 immune. See Williams v. King, __ F.3d __, 2017 WL 5180205, at *2 (9th Cir. Nov. 9, 2017) 20 (discussing 28 U.S.C. §1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th 21 Cir. 2000) (en banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 22 28 U.S.C. §1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of 23 frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 24 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 25 689 F.3d 680, 681 (7th Cir. 2012)). A complaint is “frivolous” if it “lacks an arguable basis 26 either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). Standard of Review 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 17cv2214 1 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 2 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 3 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 to “contain sufficient factual matter, 6 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 7 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Detailed factual allegations 8 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 9 by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Determining 10 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 11 requires the reviewing court to draw on its judicial experience and common sense.” Id. The 12 “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me 13 accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. 14 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Plaintiff’s Allegations 15 B. 16 Plaintiff claims he was sexually abused in 2008 by a cellmate while incarcerated at 17 Pelican Bay State Prison (“PBSP”).3 (See Compl. at 3.) Plaintiff was “immediately 18 transferred” to the California Medical Facility (“CMF”) in Vacaville following this 19 incident. (Id.) Plaintiff submitted a grievance “concerning the incident” and claims that it 20 was rejected because he had to raise the issue with PBSP where the incident occurred. (Id.) 21 Plaintiff was returned to PBSP after being housed at CMF for one year. (See id. at 4.) Two 22 months later, Plaintiff was transferred to Salinas Valley State Prison (“SVSP”). (See id.) 23 Plaintiff alleges that he “raised the issue again concerning his sexual abuse” to Defendant 24 Herrera, his Correctional Counselor. (Id.) Plaintiff claims Herrera “made it very clear” that 25 she was “squashing” Plaintiff’s concerns, “placing [him] in a very grievous state of anxiety 26 27 3 28 The claims arising from periods of time when Plaintiff was housed at institutions located within the Northern District of California have been dismissed from this action. (See ECF No. 16 at 3.) 5 17cv2214 1 and fear toward every cell mate [he] would then receive”. (Id.) 2 Sometime in early 2010, Plaintiff was “attacked by his cellmate John Roberts.” (Id.) 3 Plaintiff claims his cellmate “kicked [Plaintiff] in the face.” (Id. at 5.) Plaintiff also claims 4 he is disabled, uses a walker, and is “blind in one eye.” (Id.) Plaintiff’s cellmate was moved 5 out of Plaintiff’s cell and Plaintiff claims he was traumatized “with renewed fears of any 6 new cellmate he would receive next” as a result of this alleged attack. (Id.) On April 26, 7 2012, Plaintiff was given a Rules Violation Report (“RVR”) for “refusing to accept a cell 8 mate” while housed at SVSP. (Id.) 9 Plaintiff filed a grievance on May 24, 2012 seeking “single-cell status and 10 accommodate his disabilities.” (Id. at 6.) Plaintiff was granted single-cell status on 11 December 28, 2012. (See id.) In 2014, Plaintiff was transferred to RJD. (See id.) Plaintiff 12 was “denied his single-cell housing” and “began to receive cell mates again.” (Id.) Plaintiff 13 claims that as a result he suffered from “recurring psychological trauma and emotional 14 distress.” (Id.) Plaintiff alleges he had “numerous cell mate conflicts” and was told to “deal 15 with it” by correctional officers. (Id.) Plaintiff claims that the California Department of 16 Corrections and Rehabilitation’s (“CDCR”) double cell housing policy is actually an 17 “underground regulation” which violates his constitutional rights. (Id. at 7.) Plaintiff filed 18 a grievance seeking a single cell on January 19, 2016. (See id. at 8.) Defendants Olivarria 19 and Self “rejected” Plaintiff’s grievance “on the grounds of failing to complete the 20 supervisor’s level review of CDCR-22 form.” (Id. at 8–9.) Plaintiff claims Defendant York 21 failed to comply with the grievance regulations by “violating the 7-day supervisor response 22 time.” (Id. at 9.) Plaintiff resubmitted the grievance with this explanation but it was also 23 rejected by Olivarria and Self. (See id.) Plaintiff’s grievance was eventually “cancelled” 24 for failure to comply with the time limits. (Id. at 10–11.) 25 C. 26 The Court construes Plaintiff’s request to reside in a single cell as a claim of failure 27 to protect him from harm by other inmates arising under the Eighth Amendment. Plaintiff 28 claims that the denial of single cell status, while housed at RJD, has caused him to have Failure to Protect claims 6 17cv2214 1 “fears, paranoia, and anxiety.” (Compl. at 13.) The Court finds that Plaintiff’s Eighth 2 Amendment claims must be dismissed for failure to state a claim upon which relief may be 3 granted. 4 Prison officials have a duty under the Eighth Amendment to avoid excessive risks 5 to inmate safety. See, e.g., Farmer v. Brennan, 511 U.S. 825, 834 (1994). To state a claim 6 under the Eighth Amendment, Plaintiff must allege Defendants were “deliberate[ly] 7 indifferen[t]” to “conditions posing a substantial risk of serious harm.” Id. Deliberate 8 indifference is more than mere negligence, but less than purpose or knowledge. See id. at 9 836. A prison official acts with deliberate indifference only if he “knows of and disregards 10 an excessive risk to inmate health and safety; the official must both be aware of facts from 11 which the inference could be drawn that a substantial risk of serious harm exists, and he 12 must also draw the inference.” Id. at 837. 13 The Complaint fails to state an Eighth Amendment claim for which this Court can 14 provide redress. As an initial matter, the only claims the Court can address in this matter 15 involve the time period that Plaintiff was housed at RJD. All other claims have been 16 dismissed without prejudice to be filed in a separate action in the Northern District of 17 California. (See ECF No. 16 at 1.) To the extent that Plaintiff seeks injunctive relief in the 18 form of an order directing Defendants to house him in a single cell, the claims against RJD 19 Defendants are moot in light of his transfer to a different institution. See Dilley v. Gunn, 20 64 F.3rd 1365, 1368 (9th Cir. 1995) (An inmate’s transfer to a different prison while 21 conditions of confinement claims are pending moot any claims for injunctive relief.) The 22 Complaint otherwise fails to show that Plaintiff is entitled to other relief for the conduct he 23 alleges occurred at RJD. Plaintiff cannot recover monetary damages for a “mental or 24 emotional injury” without a “prior showing of physical injury or the commission of a 25 sexual act.” 42 U.S.C. §1997e(e). A review of the Complaint shows that Plaintiff does not 26 provide any factual allegations of suffering a physical injury while incarcerated at RJD. 27 Accordingly, the Court dismisses Plaintiff’s Eighth Amendment claim. 28 7 17cv2214 1 D. 2 Plaintiff alleges multiple failures to properly follow CDCR Title 15 prison 3 regulations governing the processing of his inmate appeals. However, a prison official’s 4 alleged improper processing of an inmate’s grievances or appeals, without more, cannot 5 serve as a basis for Section 1983 liability. See generally Ramirez v. Galaza, 334 F.3d 850, 6 860 (9th Cir. 2003) (prisoners do not have a “separate constitutional entitlement to a 7 specific prison grievance procedure.”) (citation omitted); Mann v. Adams, 855 F.2d 639, 8 640 (9th Cir. 1988) (due process not violated simply because defendant fails properly to 9 process grievances submitted for consideration); see also Shallowhorn v. Molina, 572 Fed. 10 App’x 545, 547 (9th Cir. 2014) (district court properly dismissed section 1983 claims 11 against defendants who “were only involved in the appeals process”) (citing Ramirez, 334 12 F.3d at 860). Therefore, Plaintiff’s Fourteenth Amendment due process claims are 13 dismissed for failure to state a claim upon which relief may be granted. Improper Grievance Processing 14 E. 15 Accordingly, Plaintiff’s entire Complaint is dismissed for failure to state any claim 16 upon which relief may be granted. Because Plaintiff is proceeding pro se and the Court has 17 now provided him with “notice of the deficiencies in his complaint,” the Court will also 18 grant Plaintiff an opportunity to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 19 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 20 IV. Leave to Amend CONCLUSION & ORDER 21 For the foregoing reasons, the Court HEREBY: 22 1. 23 (ECF No. 14). 24 2. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. §1915(a) ORDERS the Secretary of the CDCR, or his designee, to collect from 25 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly 26 payments from the account in an amount equal to twenty percent (20%) of the preceding 27 month’s income and forwarding them to the Clerk of the Court each time the amount in his 28 account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST 8 17cv2214 1 BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 2 ACTION. 3 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott 4 Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 5 942883, Sacramento, California, 94283-0001. 6 4. DISMISSES Plaintiff’s Complaint (ECF No. 1) for failure to state a claim 7 upon which §1983 relief can granted pursuant to 28 U.S.C. §§1915(e)(2)(B)(ii) and 8 1915A(b)(1). 9 5. GRANTS Plaintiff thirty (30) days leave from the date of this Order in which 10 to file an Amended Complaint that cures the deficiencies of pleading described above. Any 11 Amended Complaint must be complete by itself without reference to the original 12 complaint. See Civ. L.R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 13 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”). 14 Plaintiff may file an Amended Complaint no later than January 29, 2018. Should Plaintiff 15 elect not to proceed by filing an Amended Complaint within 30 days, the Court will enter 16 a final Order of dismissal of this civil action for failure to state a claim pursuant to 28 17 U.S.C. §1915(e)(2)(B)(ii) and §1915A(b)(1), and for failure to prosecute in compliance 18 with a court order requiring amendment. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 19 (9th Cir. 1992) (dismissal for failure to prosecute permitted if plaintiff fails to respond to a 20 court’s order requiring amendment of complaint); Lira v. Herrera, 427 F.3d 1164, 1169 21 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his 22 complaint, a district court may convert the dismissal of the complaint into dismissal of the 23 entire action.”). 24 6. 25 26 The Clerk of Court is directed to mail Plaintiff a civil rights form complaint for his use in amending. IT IS SO ORDERED. 27 28 DATED: January 2, 2018 9 17cv2214
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