Rideau v. Minnick et al

Filing 37

ORDER Sua Sponte Dismissing Third Amended Complaint for Failing to State a Claim Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Leave to amend is denied. Signed by Judge Barry Ted Moskowitz on 6/28/10.(All non-registered users served via U.S. Mail Service)(vet)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
GREGORY SYLVESTER RIDEAU, Jr., CDCR #K-32522, Plaintiff, Civil No. 09cv0296 BTM (WMc)

ORDER SUA SPONTE DISMISSING THIRD AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

vs. L. MINNICK, et al., Defendants.

I.

PROCEDURAL HISTORY On February 17, 2009, Plaintiff, Gregory Sylvester Rideau, Jr., a state inmate currently

incarcerated at Calipatria State Prison and proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983. Before the Court could conduct its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and 1915A(b), Plaintiff filed a First Amended Complaint ("FAC"). The Court dismissed Plaintiff's FAC on August 6, 2009 but permitted him leave to file a Second Amended Complaint in order to correct the deficiencies of pleading identified by the Court.
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See Aug. 6, 2009 Order at 7-8. On September 8, 2009, Plaintiff filed his Second Amended Complaint ("SAC"). The Court, once again, dismissed his SAC for failing to state a claim. See Oct. 26, 2009 Order at 7-8. Plaintiff appealed this Order to the Ninth Circuit Court of Appeals on November 6, 2009. This Appeal was later dismissed because the Order from which Plaintiff appealed was not yet final. On December 18, 2009, this Court dismissed Plaintiff's entire action and entered judgment because Plaintiff had failed to file a Third Amended Complaint. On January 15, 2010, Plaintiff sought leave to reopen the case which was granted by this Court. Plaintiff then requested and received extensions of time to file his Third Amended Complaint. Finally, on June 4, 2010, Plaintiff filed his Third Amended Complaint ("TAC"). II. SUA SPONTE SCREENING PER 28 U.S.C. § 1915(e)(2) and § 1915A A. Standard

As the Court stated in its previous Orders, the Prison Litigation Reform Act (PLRA") obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A). As currently pleaded, the Court finds that Plaintiff's Third Amended Complaint fails to state a cognizable claim under 42 U.S.C. § 1983. Section 1983 imposes two essential proof requirements upon a claimant: (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 Constitution 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).
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In each one of Plaintiff's pleadings from his original Complaint to this Third Amended Complaint, he has sought to challenge the method by which money is garnished from his inmate trust account to pay towards his restitution that was imposed when he was convicted and sentenced in 1996. In his Third Amended Complaint, Plaintiff claims various prison officials used an "accounting fraud scheme" in violation of his Fourteenth Amendment rights to garnish money from his inmate trust account. See TAC at 4. Specifically, Plaintiff claims that prison officials were improperly categorizing monies that he received from his family as "inmate wages." Id. Even if that were the case, the monies that Plaintiff receives from his family, or other sources, and deposited into his inmate trust account can be subjected to garnishment towards the amount of restitution he owes. California law requires a restitution fine to be collected in a manner set forth by Cal. Pen. Code § 2085.5(a) which provides, in part, that: "the Director of Corrections shall deduct a minimum of 20 percent or the balance owing on the fine amount, whichever is less, up to a maximum of 50 percent from the wages and trust account deposits of a prisoner, unless prohibited by federal law, and shall transfer that amount to the California Victim Compensation and Government Claims Board for deposit in the Restitution Fund in the State Treasury." Cal. Pen. Code § 2085.5(a) As the Court previously informed Plaintiff, there are certain exemptions from this garnishment but he must plead facts to show that the monies deposited by his family or friends fall under these exemptions which are as follows:

"Joint Venture Program Deposits, funds designated to pay the costs of a family visit ("family visit funds"), Temporary Community Leave funds, federal disability payments, veteran 21 benefits, any reimbursement to an inmate as a result of a claim for lost or damaged property, or money reimbursed to an inmate due to a failed attempt to purchase merchandise are exempt for 22 fines and direct orders of restitution."
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CAL. CODE REGS. TIT. 15, § 3097(j). Once again, there are no facts alleged that any of the funds deposited in Plaintiff's inmate trust account fall under any of these exemptions. For example, while Plaintiff claims that he receives funds from his family, he does not allege that any of these funds are designated to pay the costs of a family visit, which is one of the exemptions. ///
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In addition, as the Court previously informed Plaintiff, where a prisoner alleges the deprivation of a liberty or property interest caused by the unauthorized negligent or intentional action of a prison official, such as the claims of accounting fraud, the prisoner cannot state a constitutional claim where the state provides an adequate post-deprivation remedy. See Zinermon v. Burch, 494 U.S. 113, 129-32 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984). The California Tort Claims Act ("CTCA") provides an adequate post-deprivation state remedy for the random and unauthorized taking of property. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). Here, Plaintiff claims that his property was fraudulently taken from his inmate trust account and he continues to seek repayment for the alleged destruction of a typewriter. As to both of these claims, Plaintiff has an adequate state post-deprivation remedy and his claims relating to the alleged accounting fraud and loss of his typewriter are not cognizable in this § 1983 action, and must be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1). Plaintiff also alleges that he has been denied access to the courts through "procedural default." TAC at 12. Plaintiff alleges that he could not "exhaust his administrative remedies upon this issue to even file a Board of Control claims." Id. Prisoners do "have a constitutional right to petition the government for redress of their grievances, which includes a reasonable right of access to the courts." O'Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996). To establish a violation of the right to access to the courts, however, a prisoner must allege facts sufficient to show that: (1) a nonfrivolous legal attack on his conviction, sentence, or conditions of confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An "actual injury" is defined as "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim." Id. at 348. To demonstrate an "actual injury" Plaintiff would have to allege facts to show that he has a nonfrivolous legal attack on his conditions of confinement related to the garnishment of a portion of his funds from his inmate trust account. In order to assert an Eighth Amendment claim for deprivation of humane conditions of confinement a prisoner must satisfy two requirements: one objective and one subjective. Farmer v. Brennan, 511 U.S. 825, 834 (1994);
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Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994). Under the objective requirement, the plaintiff must allege facts sufficient to show that "a prison official's acts or omissions . . . result[ed] in the denial of the `minimal civilized measure of life's necessities.'" Farmer, 511 U.S. at 834 (quoting Rhodes, 452 U.S. at 347). This objective component is satisfied so long as the institution "furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety." Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Farmer, 511 U.S. at 534. Here, Plaintiff has not alleged in any of his pleadings that the

garnishment of his inmate trust account has led to the denial of adequate food, clothing, shelter, sanitation, medical care or personal safety. Plaintiff's inability to file a claim for the return of the monies garnished from his trust account or the replacement of his typewriter would not rise to the level of a nonfrivolous attack on the conditions of his confinement. Thus, the Court finds that Plaintiff has failed to allege that "a complaint he prepared was dismissed," or that he was "so stymied" by any individual defendant's actions that "he was unable to even file a complaint," direct appeal or petition for writ of habeas corpus that was not "frivolous." Lewis, 518 U.S. at 351; Christopher, 536 U.S. at 416 Therefore, Plaintiff's access to courts claims must be dismissed for failing to state a claim upon which section 1983 relief can be granted. Plaintiff also brings a number of state law claims in this action. However, because Plaintiff cannot identity a violation of a federal law, the Court exercises its discretion to dismiss Plaintiff's pendent state law claims without prejudice. See 28 U.S.C. § 1367(c)(3) ("The district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if ... the district court has dismissed all claims over which it has original jurisdiction."); United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) ("if the federal claims are dismissed before trial, ... the state claims should be dismissed as well."). III. CONCLUSION AND ORDER Good cause appearing therefor, IT IS HEREBY ORDERED that: Plaintiff's Third Amended Complaint is DISMISSED for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Moreover,
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because the Court finds amendment of Plaintiff's § 1983 claims would be futile at this time, leave to amend is DENIED. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an abuse of discretion where further amendment would be futile); see also Robinson v. California Bd. of Prison Terms, 997 F. Supp. 1303, 1308 (C.D. Cal. 1998) ("Since plaintiff has not, and cannot, state a claim containing an arguable basis in law, this action should be dismissed without leave to amend; any amendment would be futile.") (citing Newland v. Dalton, 81 F.3d 904, 907 (9th Cir. 1996)). The Clerk shall close the file. IT IS SO ORDERED. DATED: June 28, 2010 _________________________________________ HON. BARRY TED MOSKOWITZ United States District Judge

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