Mullins v. Chatfield et al.

Filing 19

ORDER signed by Magistrate Judge Deborah Barnes on 10/24/2017 GRANTING 2 Motion to Proceed In Forma Pauperis and DISMISSING this action without prejudice. CASE CLOSED. (Hunt, G)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD JULIUS MULLINS, 12 13 14 No. 2:17-cv-0036 DB P Plaintiff, v. ORDER KATY CHATFIELD, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 18 1983. Plaintiff has consented to the jurisdiction of a magistrate judge. Before the court are 19 plaintiff’s motion to proceed in forma pauperis, motions for injunctive relief, motions to amend, 20 motions for the appointment of counsel, and plaintiff’s complaints for screening. For the reasons 21 set forth below, the court grants plaintiff’s motion to proceed in forma pauperis and dismisses this 22 action without prejudice for plaintiff’s failure to exhaust his administrative remedies prior to 23 filing this action. 24 IN FORMA PAUPERIS 25 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 26 27 28 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 1 1 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 2 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 3 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 4 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 5 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 6 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 7 1915(b)(2). 8 BACKGROUND 9 Plaintiff filed his original complaint here on January 9, 2017. (ECF No. 1.) He identified 10 three defendants Katy Chatfield, Joe Lizarraga, and Scott Kernan. Plaintiff complained that 11 defendant Correctional Officer Chatfield authored rules violation reports against him in retaliation 12 for a staff complaint plaintiff filed against another correctional officer. Since then, plaintiff has 13 filed two additional complaints in this case. (ECF Nos. 7, 17.) In addition to Chatfield, Lizarraga 14 and current CDCR Director Allison, plaintiff adds claims against defendants Allen, Knight, and 15 Johnson for the denial of his appeals regarding the rules violations. 16 SCREENING 17 I. Legal Standards 18 The court is required to screen complaints brought by prisoners seeking relief against a 19 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 20 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 21 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 22 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 23 U.S.C. § 1915A(b)(1) & (2). 24 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 25 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 26 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 27 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 28 //// 2 1 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 2 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 3 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 4 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 5 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 6 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 7 However, in order to survive dismissal for failure to state a claim a complaint must contain more 8 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 9 allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 10 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 11 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 12 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 13 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 14 The Civil Rights Act under which this action was filed provides as follows: 15 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 16 17 18 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 19 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 20 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 21 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 22 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 23 omits to perform an act which he is legally required to do that causes the deprivation of which 24 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 25 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 26 their employees under a theory of respondeat superior and, therefore, when a named defendant 27 holds a supervisorial position, the causal link between him and the claimed constitutional 28 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 3 1 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 2 concerning the involvement of official personnel in civil rights violations are not sufficient. See 3 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 4 5 II. Exhaustion of Administrative Remedies Generally “a prisoner must exhaust his administrative remedies for the claims contained 6 within his complaint before that complaint is tendered to the district court.” Rhodes v. Robinson, 7 621 F.3d 1002, 1004 (9th Cir. 2010) (citing McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 8 2002) (per curiam); and Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); 42 U.S.C. § 9 1997e(a). Recently, the United States Supreme Court confirmed that district courts are bound by 10 the PLRA's textual mandate requiring all inmates to exhaust administrative remedies before 11 bringing an action in federal court. See Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016) (refuting 12 a “special circumstance” exception to the rule of exhaustion). 13 “Proper exhaustion demands compliance with an agency’s . . . critical procedural rules,” 14 Woodford v. Ngo, 548 U.S. 81, 90 (2006). Thus, “to properly exhaust administrative remedies, 15 prisoners ‘must complete the administrative review process in accordance with the applicable 16 procedural rules,’ [ ] rules that are defined. . . by the prison grievance process itself.” Jones v. 17 Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88). 18 In California, an inmate may appeal “any policy, decision, action, condition, or omission . . . 19 having a material adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 20 15, § 3084.1(a). Inmates must complete three levels to exhaust the appeal process: (1) formal 21 written appeal on CDCR Form 602; (2) second-level appeal to the institution head or designee; 22 and (3) third-level appeal to the Director of the CDCR. Id. § 3084.7. The third level constitutes 23 the decision of the Secretary of the CDCR and exhausts a prisoner’s administrative remedies. Id. 24 § 3084.7(d)(3). 25 It is clear from plaintiff’s recitation of the facts that his appeals of defendant Chatfield’s three 26 rules violation reports were not resolved until after January 9, 2017 when he filed this action. In 27 his second amended complaint filed August 11, 2017, plaintiff states that he was found guilty by 28 defendant Knight of the first rules violation, a charge of “overfamiliarity,” at a hearing held on 4 1 January 23, 2017. (ECF No. 17 at 7.) Plaintiff appealed the guilty finding on February 3, 2017. 2 (Id. at 9.) Plaintiff states defendant Allen held a hearing on February 11, 2017 and denied his 3 appeal. (Id. at 9-10.) 4 Plaintiff appealed the other two rules violations, which he also refers to as “128 chronos.” 5 (Id. at 8.) He contends that on February 7, 2017, defendant C. Johnson misstated what plaintiff 6 told him during the appeal hearing. Plaintiff describes Johnson’s resolution of plaintiff’s claim as 7 the “first level response” to his appeal. (Id.) 8 9 Because plaintiff did not exhaust his administrative remedies prior to sending his complaint to this court, this court “must dismiss his suit without prejudice.” Vaden, 449 F.3d at 1051 (citing 10 Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.2003)). If plaintiff wishes to pursue these 11 claims, he must file a new action when, and if, he has exhausted his administrative remedies. 12 Accordingly, IT IS HEREBY ORDERED as follows: 13 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted; and 14 2. This action is dismissed without prejudice. 15 Dated: October 24, 2017 16 17 18 19 20 21 DLB:9 DLB1/prisoner-civil rights/mull0036.scrn 22 23 24 25 26 27 28 5

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