Kelly v. Tilton

Filing 3

ORDER granting 2 Motion for Leave to Proceed in forma pauperis, assessing no initial partial filing fee and garnishing $350 balance from prisoner's trust account and sua sponte dismissing complaint for failing to state a claim pursuant to 28U.S.C. § 1915(e)(2)(B) & § 1915A(b). (Copy of order mailed to James Tilton) Signed by Judge Marilyn L. Huff on 09/11/07. (agp) Modified on 9/11/2007 to note that copy of order was mailed (agp).

Kelly v. Tilton

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P l a i n ti f f , an inmate currently incarcerated at Kern Valley State Prison located in Delano, Calif ornia and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff alleges that he is being held against his will by the California D e p a r t m e n t of Corrections and Rehabilitation. (See Compl. at 3.) As a result, Plaintiff seeks an immediate release from custody. (Id. at 7.) -107cv1744

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
R U S S EL L JAMES KELLY, C D C R #K-50742 P l a i n ti f f , Civil No. OR DE R: (1) GRANTING PLAINTIFF'S M O T I O N TO PROCEED IN FORMA P A U P E R I S , ASSESSING NO I N IT I A L PARTIAL FILING FEE A N D GARNISHING $350 BALANCE F R O M PRISONER'S TRUST A C C O U N T [Doc. No. 2]; AND ( 2) SUA SPONTE DISMISSING C O M P L A I N T FOR FAILING TO S T A T E A CLAIM PURSUANT TO 28 U . S. C . § 1915(e)(2)(B) & § 1915A(b). [ D o c . No. 2] De fend ant. 07-1744 H (RBB)

vs.

J A M E S TILTON, Secretary of the C a l i f o rn i a Dep't of Corrections and R e h a b i l it a t io n

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P l a i n ti f f has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a) to c o m m e n c e a civil action; instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursua n t to 28 U.S.C. § 1915(a) [Doc. No. 2]. I. M o t i on to Proceed IFP E f f e c t i v e April 9, 2006, all parties instituting any civil action, suit or proceeding in a d i s tr i c t court of the United States, except an application for writ of habeas corpus, must pay a f i l in g fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to p r e p a y the entire fee only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however, remain obligated to pay the entire fee in installments, regardless of wh ethe r the action is ultimately dismissed for any reason. See 28 U.S.C. § 1915(b)(1) & (2). Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a p r i s o n er seeking leave to proceed IFP must submit a "certified copy of the trust fund account s t a te m e n t (or institutional equivalent) for the prisoner for the six-month period immediately p r e c e d in g the filing of the complaint." 28 U.S.C. § 1915(a)(2). From the certified trust account statem ent, the Court must assess an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). That institution having custody of the prisoner must c o l l ec t subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forward those payments to the Court until the entir e filing fee is paid. See 28 U.S.C. § 1915(b)(2). T h e Court finds that Plaintiff has attached a certified copy of his trust account statement p u r s u a n t to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff's trust account statement s ho w s that he has insufficient funds from which to pay filing fees at this time. See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited from bringing a civil a c t io n or appealing a civil action or criminal judgment for the reason that the prisoner has no a s s e t s and no means by which to pay the initial partial filing fee."); Taylor, 281 F.3d at 850 -2-

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( f i n d in g that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's I F P case based solely on a "failure to pay . . . due to the lack of funds available to him when p a y m e n t is ordered."). Therefore, the Court GRANTS Plaintiff's Motion to Proceed IFP [Doc. N o . 2] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $ 3 5 0 balance of the filing fees mandated shall be collected and forwarded to the Clerk of the Cou rt pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). II. I n i ti a l Screening per 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) A. S t a n d a r d of Review

T h e PLRA also obligates the Court to review complaints filed by all persons proceeding I F P and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused o f , sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or c o n d i t io n s of parole, probation, pretrial release, or diversionary program," "as soon as practic able after docketing." See 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these p r o v i s i o n s , the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion t h e r e o f, which is frivolous, malicious, fails to state a claim, or which seeks damages from defe ndan ts who are immune. See 28 U.S.C. § 1915(e)(2)(B) and § 1915A; Calhoun v. Stahl, 254 F . 3 d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 2 8 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pau peris complaint that fails to state a claim); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 200 0) (§ 1915A). Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte d i s m i ss a l of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is f r i v o lo u s if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 3 2 4 (1989). However, 28 U.S.C. § 1915(e)(2) and § 1915A now mandate that the court r e v i e w i n g an IFP or prisoner's suit make and rule on its own motion to dismiss before effecting s e r v ic e of the Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). See Calhoun, 2 5 4 F.3d at 845; Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, -3-

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6 0 4 - 0 5 (6th Cir. 1997) (stating that sua sponte screening pursuant to § 1915 should occur "befor e service of process is made on the opposing parties"); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing 28 U.S.C. § 1915A). " [ W ] h e n determining whether a complaint states a claim, a court must accept as true all a l l eg a t i o n s of material fact and must construe those facts in the light most favorable to the plain tiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "para llels the language of Federal Rule of Civil Procedure 12(b)(6)"); Andrews, 398 F.3d at 1 1 2 1 . In addition, the Court has a duty to liberally construe a pro se's pleadings, see KarimP a n a h i v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988), which is "particularly i m p o r t a n t in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In g i v i n g liberal interpretation to a pro se civil rights complaint, however, the court may not "sup ply essential elements of claims that were not initially pled." Ivey v. Board of Regents of t h e University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). A s currently pleaded, it is clear that Plaintiff's Complaint fails to state a cognizable claim u n d e r 42 U.S.C. § 1983. Section 1983 imposes two essential proof requirements upon a claim ant: (1) that a person acting under color of state law committed the conduct at issue, and ( 2 ) that the conduct deprived the claimant of some right, privilege, or immunity protected by the C o n s t i tu t i o n or laws of the United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637 , 124 S. Ct. 2117, 2122 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). B. H a b e a s Corpus Relief

In Plaintiff's Complaint, he alleges that he was acquitted by a jury of criminal charges on Febru a ry 27, 1997. (See Compl. at 3.) Despite this acquittal, Plaintiff claims that he was s e n t e n c ed to thirty (30) years to life and remains incarcerated under the control of the California D e p a r t m e n t of Corrections and Rehabilitation ("CDCR"). (Id.) The only form of relief Plaintiff s e e k s is an "injunction from holding Plaintiff against his will in the [CDCR]." (Id. at 8.) //// //// -4-

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H o w ev er, to the extent Plaintiff seeks injunctive relief in the form of a court order g r a n t in g him release from prison, see Compl. at 3-5, such relief is simply not available under 42 U . S. C . § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that "when a state p r i s o n er is challenging the very fact or duration of his physical imprisonment, and the relief he s e e k s is a determination that he is entitled to immediate release . . . his sole federal remedy is a wr it of habeas corpus."). Even if Plaintiff were to amend his Complaint to seek monetary damages, this claim wo uld not yet be cognizable pursuant to Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); R a m i r e z v. Galaza, 334 F.3d 850, 855-56 (9th Cir. 2003) ("Absent such a showing, `[e]ven a p r i s o n er who has fully exhausted available state remedies has no cause of action under § 1983....'") (quoting Heck, 512 U.S. at 489), cert. denied, 124 S. Ct. 2388 (2004). Heck holds t h a t "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or f o r other harm caused by actions whose unlawfulness would render a conviction or sentence i n v a l id , a section 1983 plaintiff must prove that the conviction or sentence has been reversed on d i r e c t appeal, expunged by executive order, declared invalid by a state tribunal authorized to m a k e such determination, or called into question by a federal court's issuance of a writ of habeas cor pus ." Heck, 512 U.S. at 486-87. A claim challenging the legality of a conviction or sentence t h a t has not been so invalidated is not cognizable under § 1983. Id. at 487; Edwards v. Balisok, 5 2 0 U.S. 641, 643 (1997). In his Complaint, Plaintiff admits that he has not yet had his c o n v i c ti o n invalidated and thus, this action is not yet cognizable pursuant to Heck. A cc or di ng ly, the Court finds that Plaintiff's Complaint must be DISMISSED for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2) a n d 1915A. Because it does not appear "at all possible that the plaintiff can correct the defect (s)" of his pleading, further leave to amend is DENIED as futile. See Cahill v. Liberty M ut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an abuse of discretio n where further amendment would be futile). //// //// -5-

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III.

C o n c l u s i o n and Order Go od cause appearing, IT IS HEREBY ORDERED that: (1) (2) P lain tiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) is GRANTED. T h e Secretary of California Department of Corrections and Rehabilitation, or his

d e s i g n e e , is ordered to collect from Plaintiff's prison trust account the $350 balance of the filing f e e owed in this case by collecting monthly payments from the trust account in an amount equal to twenty percent (20%) of the preceding month's income credited to the account and forward payme nts to the Clerk of the Court each time the amount in the account exceeds $10 in a c c o r d a n c e with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY

I D EN T IF IE D BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. (3) The Clerk of the Court is directed to serve a copy of this Order on James Tilton,

Se cr eta ry, California Department of Corrections and Rehabilitation, P.O. Box 942883, S a c r a m e n t o , California, 94283-0001. I T IS FURTHER ORDERED that: (4) P lain tiff's Complaint [Doc. No. 1] is DISMISSED for failing to state a claim and

w i t h o u t further leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. Plaintiff is f u r t h e r notified that this dismissal may later be counted as a "strike" against him pursuant to 28 U.S.C . § 1915(g).1 The Clerk shall close the file. I T IS SO ORDERED. D A T E D : September 11, 2007 M A R I L Y N L. HUFF, District Judge U N I T E D STATES DISTRICT COURT

28 U.S.C. § 1915(g) provides that "[i]n no event shall a prisoner bring a civil action or appeal ... under this section if the prisoner has, on 3 or more occasions, while incarcerated or detained in any facili ty, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g); Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) ("Pursuant to § 1915(g), a prisoner with three strikes," i.e., prior federal cases or appeals, brought while the plaintiff was a prisoner, which were dismissed on grounds that they were frivolous, malicious, or failed to state a claim, "cannot proceed IFP."). -607cv1744

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