Risher v. Libby, et al.

Filing 3

ORDER (1) Granting Motion To Proceed IFP (Dkt # 2 ); (2) Dismissing Defendant; And (3) Transferring Civil Action To The Eastern District of California: The Secretary CDCR, or his designee, is ordered to collect from Plaintiff's trust account th e $350 owed in monthly payments in an amount equal to 20% of the preceding month's income to the Clerk of the Court each time the amount in Plaintiff's account exceeds $10 in accordance with 28 USC 1915(b)(2). The Court dismi sses the claims against Defendant Libby from this action. Signed by Judge William Q. Hayes on 1/18/2017. (All non-registered users served via U.S. Mail Service. Order electronically transmitted to Secretary of CDCR. Per Order, a copy also was mailed to Secretary of CDCR at address on the Order.) (mdc) [Transferred from casd on 1/19/2017.]

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RICHARD RISHER,

Case No.: 3:16-cv-03128-WQH-KSC
Plaintiff,

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ORDER:

v.
DR. LIBBY; DR. EBINOSA; DR.
RASHEED; DR. JACQUES; DR.
CONTRERAS; DR. TREVINO; MS.
PONSE DELEON; DOE 1 THROUGH
10,

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(1) GRANTING MOTION TO
PROCEED IFP;
(2) DISMISSING DEFENDANT FOR
FAILING TO STATE A CLAIM;
AND

Defendant.

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(3) TRANSFERRING CIVIL
ACTION FOR LACK OF PROPER
VENUE TO THE EASTERN
DISTRICT OF CALIFORNIA
PURSUANT TO 28 U.S.C. § 84(b),
28 U.S.C. § 1391(b) AND 28 U.S.C. §
1406(a)

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Richard Risher (“Plaintiff”), who is currently housed at the Substance Abuse

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Treatment Facility (“SATF”) located in Corcoran, California, has filed a civil action

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pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) In addition, Plaintiff has filed a Motion to

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Proceed In Forma Pauperis (“IFP”). (Doc. No. 2.)

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3:16-cv-03128-WQH-KSC

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I.

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Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. §

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1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if a prisoner, like Plaintiff, is

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granted leave to proceed IFP, he remains obligated to pay the entire fee in “increments,”

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see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his

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action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore,

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281 F.3d 844, 847 (9th Cir. 2002).

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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act

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(“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of the

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trust fund account statement (or institutional equivalent) for the prisoner for the six-

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month period immediately preceding the filing of the complaint.” 28 U.S.C.

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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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trust account statement, the Court assesses an initial payment of 20% of (a) the average

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monthly deposits in the account for the past six months, or (b) the average monthly

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balance in the account for the past six months, whichever is greater, unless the prisoner

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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution

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having custody of the prisoner then collects subsequent payments, assessed at 20% of the

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preceding month’s income, in any month in which the prisoner’s account exceeds $10,

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and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C.

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§ 1915(b)(2).

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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) (Judicial Conference Schedule of Fees,
District Court Misc. Fee Schedule) (eff. May 1, 2013). However, the additional $50 administrative fee
is waived if the plaintiff is granted leave to proceed IFP. Id.
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3:16-cv-03128-WQH-KSC

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In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust

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account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. Andrews,

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398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement, which

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shows that he has a current available balance of zero. See 28 U.S.C. § 1915(b)(4)

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(providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action

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or appealing a civil action or criminal judgment for the reason that the prisoner has no

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assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at

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850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of

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a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds

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available to him when payment is ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and

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assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350

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balance of the filing fees mandated will be collected by the California Department of

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Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court

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pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

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II.

Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

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A.

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Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a

Standard of Review

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pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

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statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

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it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

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who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

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2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

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the targets of frivolous or malicious suits need not bear the expense of responding.’”

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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

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Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
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3:16-cv-03128-WQH-KSC

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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

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relief [is] ... a context-specific task that requires the reviewing court to draw on its

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judicial experience and common sense.” Id. The “mere possibility of misconduct” or

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009).

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B.

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Plaintiff raises Eighth Amendment inadequate medical care claims mainly against

Claims against Defendant Libby

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Defendants who are alleged to be medical personnel at Plaintiff’s current place of

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incarceration. (See Compl. 2-3.) The only allegations pertaining to Defendant Libby

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include factual allegations that he performed surgery on Plaintiff related to his diagnosis

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of glaucoma. (Id. at 10.) He further alleges that Dr. Libby “gave ‘specific and direct

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post-surgical orders and instructions’” to prison medical staff at SATF. (Id.) There are

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no allegations or claims that Defendant Libby violated Plaintiff’s Eighth Amendment

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right to adequate medical care or played any role in Plaintiff’s medical treatment

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following his discharge and return to SATF.

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3:16-cv-03128-WQH-KSC

Plaintiff’s Complaint contains no specific factual allegations as to what Defendant

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Libby did, or failed to do, to violate his constitutional rights. Iqbal, 556 U.S. at 678

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(noting that FED. R. CIV. P. 8 “demands more than an unadorned, the-defendant-

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unlawfully-harmed-me accusation,” and that “[t]o survive a motion to dismiss, a

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complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for

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relief that is plausible on its face.’”) (citation omitted). In fact, Plaintiff appears to claim

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that the alleged constitutional violations are the failure to follow the directives given by

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Defendant Libby.

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This is insufficient to state a plausible claim for relief under § 1983. A pleading

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must include sufficient “factual content that allows the court to draw the reasonable

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inference that the [defendant is] liable for the misconduct alleged,” Iqbal, 556 U.S. at

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678, and must describe personal acts by each defendant showing a direct causal

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connection to a violation of specific constitutional rights. Maxwell v. County of San

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Diego, 708 F.3d 1075, 1086 (9th Cir. 2013) (citing Taylor v. List, 880 F.2d 1040, 1045

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(9th Cir. 1989)). “Causation is, of course, a required element of a § 1983 claim.” Estate

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of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into

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causation must be individualized and focus on the duties and responsibilities of each

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individual defendant whose acts or omissions are alleged to have caused a constitutional

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deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode,

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423 U.S. 362, 370-71 (1976)).

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Accordingly, the Court DISMISSES Defendant Libby from this action for failing

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to state a claim upon which relief could be granted and directs the Clerk of Court to

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terminate this Defendant from the docket.

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III.

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Venue
Because the only named Defendant who resides in San Diego is dismissed from

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this action, the Court finds that Plaintiff’s case lacks proper venue. Venue may be raised

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by a court sua sponte where the defendant has not yet filed a responsive pleading and the

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time for doing so has not run. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986).
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3:16-cv-03128-WQH-KSC

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Section 1391(b) of Title 28 of the U.S. Code provides, in pertinent part, that a

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“civil action may be brought in – (1) a judicial district in which any defendant resides, if

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all defendants are residents of the State in which the district is located; [or] (2) a judicial

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district in which a substantial part of the events or omissions giving rise to the claim

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occurred, or a substantial part of property that is the subject of the action is situated[.]”

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28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488. “The district court of a district in which

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is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the

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interests of justice, transfer such case to any district or division in which it could have

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been brought.” 28 U.S.C. § 1406(a).

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Plaintiff alleges that the events giving rise to his action occurred at the Substance

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Abuse Treatment Facility which is located in Kings County. See 28 U.S.C. § 84(b). In

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addition, no remaining Defendant is alleged to reside in San Diego or Imperial Counties.

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Therefore, the Court finds venue is proper in the Eastern District of California, pursuant

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to 28 U.S.C. § 84(b), but not in the Southern District of California pursuant to 28 U.S.C.

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§ 84(d).

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IV.

Conclusion and Order

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Good cause appearing, the Court:

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1.

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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

(ECF No. 2).
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ORDERS the Secretary of the CDCR, or his designee, to collect from

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Plaintiff’s trust account the $350 owed in monthly payments in an amount equal to

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twenty percent (20%) of the preceding month’s income to the Clerk of the Court each

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time the amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2).

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ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND

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NUMBER ASSIGNED TO THIS ACTION.

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3.

DIRECTS the Clerk of the Court to serve a copy of this Order on Scott

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Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box

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942883, Sacramento, California, 94283-0001.
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3:16-cv-03128-WQH-KSC

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4.

DISMISSES the claims against Defendant Libby from this action for failing

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to state a claim upon which relief may be granted pursuant to 28 U.S.C.

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§ 1915(e)(2)(B)(ii) and § 1915A(b)(1). The Clerk of Court is directed to terminate this

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Defendant from the Court’s docket.

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The Clerk of the Court shall transfer this case for lack of proper venue, in

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the interests of justice and for the convenience of all parties, to the docket of the United

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States District Court for the Eastern District of California, pursuant to 28 U.S.C. § 84(b),

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28 U.S.C. § 1391(b) and 28 U.S.C. § 1406(a).

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Dated: January 18, 2017

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