Jones v. Tiscornia, No. 3:2018cv00544 - Document 4 (S.D. Cal. 2018)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis; and Dismissing Complaint for Failing to State a Claim. The Court grants Plaintiff thirty (30) days leave to file an Amended Complaint which cures all the deficiencies of pleading described in this Order. The Clerk of Court is directed to mail Plaintiff a court approved form civil rights complaint. Signed by Judge Gonzalo P. Curiel on 3/23/18. (All non-registered users served via U.S. Mail Service; copy of this Order served on Scott Kernan, Secretary, CDCR; court approved form civil rights complaint sent to plaintiff)(dlg)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 GARLAND JONES, CDCR #F-47928 ORDER: 13 14 Case No.: 3:18-cv-00544-GPC-PCL Plaintiff, (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) [Doc. No. 2]; AND vs. 15 16 17 MRS. TISCORNIA, (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) Defendant. 18 19 20 21 22 Garland Jones (“Plaintiff”), a prisoner incarcerated at the Richard J. Donovan 23 Correctional Facility (“RJD”), located in San Diego, California, has filed a pro se civil 24 complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1 at 1. 25 Plaintiff did not prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the 26 time of filing; instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) 27 pursuant to 28 U.S.C. § 1915(a). Doc. No. 2. 28 1 3:18-cv-00544-GPC-PCL 1 I. 2 Plaintiff’s IFP Motion All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 9 Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 10 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 11 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly 18 balance in the account for the past six months, whichever is greater, unless the prisoner 19 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 20 custody of the prisoner then collects subsequent payments, assessed at 20% of the 21 preceding month’s income, in any month in which his account exceeds $10, and forwards 22 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 23 Bruce, 136 S. Ct. at 629. 24 25 26 1 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. Dec. 1, 2014)). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:18-cv-00544-GPC-PCL 1 In support of his IFP motion, Plaintiff has submitted a certified copy of his prison 2 trust account statement, as well as a prison certificate, verified by an accounting officer, 3 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. See Doc. No. 3. These 4 statements shows that Plaintiff had an available balance of zero at the time of filing. 5 Therefore, the Court will not assess an initial partial filing fee at this time. See 28 U.S.C. 6 § 1915(b)(4) (“In no event shall a prisoner be prohibited from bringing a civil action or 7 appealing a civil action or criminal judgment for the reason that the prisoner has no assets 8 and no means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; 9 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 10 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to 11 the lack of funds available to him when payment is ordered.”). 12 Thus, the Court GRANTS Plaintiff’s Motion to Proceed IFP, declines to assess an 13 initial filing fee because his prison certificate shows he “has no means to pay it,” Bruce, 14 136 S. Ct. at 629, and directs the Secretary of the California Department of Corrections 15 and Rehabilitation (“CDCR”), or his designee, to instead collect the entire $350 balance 16 of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the 17 Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 18 See id. 19 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 20 A. 21 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- Standard of Review 22 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 23 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 24 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 25 who are immune. See Williams v. King, 2017 WL 5180205, at *2 (9th Cir. Nov. 9, 2017) 26 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 27 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 28 the targets of frivolous or malicious suits need not bear the expense of responding.’” 3 3:18-cv-00544-GPC-PCL 1 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 2 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). A complaint is “frivolous” if it 3 “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324 4 (1989). 5 “The standard for determining whether a plaintiff has failed to state a claim upon 6 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 7 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 8 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 9 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 10 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 11 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 12 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 13 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 14 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 15 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 16 Id. at 678. “Determining whether a complaint states a plausible claim for relief [is] . . . a 17 context-specific task that requires the reviewing court to draw on its judicial experience 18 and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the 19 defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 20 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Plaintiff’s Allegations 21 B. 22 Plaintiff claims that RJD’s prison law librarian, Defendant Tiscornia, “continues to 23 harass” Plaintiff which “makes Plaintiff’s legal work difficult.” (Compl. at 3.) Plaintiff 24 further alleges that “she seems to want to see every legal paperwork” he is “involved 25 with.” (Id.) In addition, he alleges that Tiscornia “purposely mishandles” the copies that 26 she makes for Plaintiff of his “legal work.” (Id.) Plaintiff seeks relief in the form 27 injunctive relief, as well as compensatory and punitive damages. (Id. at 7.) 28 // 4 3:18-cv-00544-GPC-PCL 1 C. 2 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 42 U.S.C. § 1983 3 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 4 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must 5 allege two essential elements: (1) that a right secured by the Constitution or laws of the 6 United States was violated, and (2) that the alleged violation was committed by a person 7 acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 8 789 F.3d 1030, 1035-36 (9th Cir. 2015). 9 10 D. Duplicative claims Plaintiff has previously raised some of the same claims in a separate action filed 11 with this Court. A court “may take notice of proceedings in other courts, both within and 12 without the federal judicial system, if those proceedings have a direct relation to matters 13 at issue.” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. 14 Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). 15 Here, the Court takes judicial notice of the action Plaintiff has filed in Jones v. 16 Tiscornia, S.D. Cal. Civil Case No. 3:17-cv-01592-BEN (AGS) (Jones I). The claims 17 found in the case before this Court (“Jones II”) are virtually identical to the claims 18 Plaintiff has previously raised in Jones I. However, Plaintiff failed to file an IFP motion 19 or pay the initial civil filing fee in Jones I and the Court did not screen the matter. 20 Therefore, the Court will not dismiss the claims in Jones II as duplicative at this stage of 21 the proceedings. However, Plaintiff is cautioned that he may not continue to file identical 22 actions raising the same claims against the same Defendants. A prisoner’s complaint is 23 considered frivolous under 28 U.S.C. §§ 1915(e)(2) & 1915A(b)(1) if it “merely repeats 24 pending or previously litigated claims.” Cato v. United States, 70 F.3d 1103, 1105 n.2 25 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal quotations 26 omitted). 27 E. 28 Plaintiff alleges that Tiscornia has denied Plaintiff “access to courts.” (Compl. at Access to Courts claim 5 3:18-cv-00544-GPC-PCL 1 3.) Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 2 343, 346 (1996). Claims for denial of access to the courts may arise from the frustration 3 or hindrance of “a litigating opportunity yet to be gained” (forward-looking access claim) 4 or from the loss of a suit that cannot now be tried (backward-looking claim). Christopher 5 v. Harbury, 536 U.S. 403, 412-15 (2002); see also Silva v. Di Vittorio, 658 F.3d 1090, 6 1102 (9th Cir. 2011) (differentiating “between two types of access to court claims: those 7 involving prisoners’ right to affirmative assistance and those involving prisoners’ rights 8 to litigate without active interference.”). 9 However, Plaintiff must allege “actual injury” as the threshold requirement to any 10 access to courts claim. Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. An “actual 11 injury” is “actual prejudice with respect to contemplated or existing litigation, such as the 12 inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at 348; see also 13 Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the 14 “inability to file a complaint or defend against a charge”). The failure to allege an actual 15 injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to 16 show that a ‘non-frivolous legal claim had been frustrated’ is fatal.” (quoting Lewis, 518 17 U.S. at 353 & n.4)). 18 In addition, Plaintiff must allege the loss of a “non-frivolous” or “arguable” 19 underlying claim. Harbury, 536 U.S. at 413-14. The nature and description of the 20 underlying claim must be set forth in the pleading “as if it were being independently 21 pursued.” Id. at 417. Finally, Plaintiff must specifically allege the “remedy that may be 22 awarded as recompense but not otherwise available in some suit that may yet be 23 brought.” Id. at 415. 24 Plaintiff’s Complaint fails to allege the actual injury required to state an access to 25 courts claim. See Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. Plaintiff merely 26 claims that Tiscornia has made it “difficult to complete other legal situations.” (Compl. at 27 3.) Thus, Plaintiff’s Complaint fails to include any “factual matter” to show how or why 28 any of the individual Defendant in this case caused him to suffer any actual prejudice, 6 3:18-cv-00544-GPC-PCL 1 “such as the inability to meet a filing deadline or to present a claim,” with respect to any 2 case. Lewis, 518 U.S. at 348; Jones, 393 F.3d at 936; Iqbal, 556 U.S. at 678. 3 Thus, because Plaintiff has failed to allege facts sufficient to show that Defendant 4 caused him to suffer any “actual injury” with respect to any non-frivolous direct criminal 5 appeal, habeas petition, or civil rights action he may have filed, see Lewis, 518 U.S. at 6 354, the Court finds Plaintiff’s access to courts claims must be dismissed for failing to 7 state a plausible claim upon which § 1983 relief can be granted. See 28 U.S.C. 8 § 1915(e)(2)(B)(ii), § 1915A(b)(1); Iqbal, 556 U.S. at 678. 9 F. 10 Leave to Amend A pro se litigant must be given leave to amend his pleading to state a claim unless 11 it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d 12 at 1130 (noting leave to amend should be granted when a complaint is dismissed under 13 28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can correct the defect”). 14 While the Court finds that Plaintiff’s Complaint fails to state a claim upon which relief 15 can be granted, it will provide him a chance to fix the pleading deficiencies discussed in 16 this Order, if he can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 17 III. Conclusion and Order 18 For all the reasons discussed, the Court: 19 1. 20 (Doc. No. 2). 21 2. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) DIRECTS the Secretary of the CDCR, or his designee, to collect from 22 Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly 23 payments from his account in an amount equal to twenty percent (20%) of the preceding 24 month’s income and forwarding those payments to the Clerk of the Court each time the 25 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 26 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 27 ASSIGNED TO THIS ACTION. 28 7 3:18-cv-00544-GPC-PCL 1 2 3 4 5 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which § 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A; 5. GRANTS Plaintiff thirty (30) days leave to file an Amended Complaint 6 which cures all the deficiencies of pleading described in this Order. Plaintiff is cautioned, 7 however, that should he choose to file an Amended Complaint, it must be complete by 8 itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim not re- 9 alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. 10 Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 11 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 12 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 13 amended pleading may be “considered waived if not repled.”). 14 15 16 6. The Clerk of Court is directed to mail Plaintiff a court approved form civil rights complaint. IT IS SO ORDERED. 17 18 Dated: March 23, 2018 19 20 21 22 23 24 25 26 27 28 8 3:18-cv-00544-GPC-PCL
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