Thornton v. Neotti et al

Filing 3

ORDER granting plaintiff's 2 motion to proceed in forma pauperis; the Secretary of California Department of Corrections and Rehabilitation, or his designee, shall collect from Plaintiffs prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the account in an amount equal to twenty percent (20%) of the preceding months income and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2); Plaintiffs Complaint is dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is granted forty five (45) days leave from the date this Order is Filed in which to file a First Amended Complaint. (Order electronically transmitted to Matthew Cate, Secretary CDCR). Signed by Judge Larry Alan Burns on 8/20/10. (All non-registered users served via U.S. Mail Service)(kaj)

- B GS Thornton v. Neotti et al

Doc. 3

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 W illia m Cecil Thornton ("Plaintiff"), a state prisoner currently incarcerated at the C a lif o rn ia Correctional Institution located in Tehachapi, California, and proceeding in pro se, h a s filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff has not prepaid the $ 3 5 0 filing fee mandated by 28 U.S.C. § 1914(a); instead he has filed a Motion to Proceed In F o rm a Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. ///
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

WILLIAM CECIL THORNTON, CDCR #V-64547, P la in tif f ,

Civil No. ORDER:

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vs.

G E O R G E NEOTTI, et al.,

( 1 ) GRANTING PLAINTIFF'S M O T IO N TO PROCEED IN FORMA PAUPERIS, IMPOSING NO PARTIAL FILING FEE AND G A R N IS H I N G $ 350 BALANCE F R O M PRISONER'S TRUST A C C O U N T PURSUANT TO 28 U.S.C. § 1915(a) [Doc. No. 2]; AND (2 ) DISMISSING COMPLAINT FOR F A I L I N G TO STATE A CLAIM P U R S U A N T TO 28 U.S.C. § § 1915(e)(2)(B) & 1915A(b)

D e f e n d a n ts .

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I.

M OTION TO PROCEED IFP A ll parties instituting any civil action, suit or proceeding in a district court of the United

S tates , except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U .S .C . § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee o n ly if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See R o d r ig u e z v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to p ro c e e d IFP remain obligated to pay the entire fee in installments, regardless of whether their a c tio n is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 8 4 4 , 847 (9th Cir. 2002). U n d e r 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a p ris o n e r seeking leave to proceed IFP must submit a "certified copy of the trust fund account sta tem e n t (or institutional equivalent) for the prisoner for the six-month period immediately p re c e d in g the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1 1 1 9 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial p a ym e n t 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, u n le s s the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The in s titu tio n having custody of the prisoner must collect subsequent payments, assessed at 20% of th e preceding month's income, in any month in which the prisoner's account exceeds $10, and fo rw ard those payments to the Court until the entire filing fee is paid. § 1915(b)(2). T h e Court finds that Plaintiff has no available funds from which to pay filing fees at this tim e . See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited f ro m bringing a civil action or appealing a civil action or criminal judgment for the reason that th e prisoner has no assets and no means by which to pay the initial partial filing fee."); Taylor, 2 8 1 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing d is m is s a l of a prisoner's IFP case based solely on a "failure to pay ... due to the lack of funds a v a ilab le to him when payment is ordered."). Therefore, the Court GRANTS Plaintiff's Motion 2 See 28 U.S.C.

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to Proceed IFP [Doc. No. 2] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). H o w e v e r, the entire $350 balance of the filing fees mandated shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). I I I. S CREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) T h e PLRA also obligates the Court to review complaints filed by all persons proceeding IF 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 itio n s of parole, probation, pretrial release, or diversionary program," "as soon as p ra c tic a b le after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these

p ro v is io n s of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, w h ic h are frivolous, malicious, fail to state a claim, or which seek damages from defendants who a re immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 11262 7 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A). "[W]hen determining whether a complaint states a claim, a court must accept as true all a lle g a tio n s of material fact and must construe those facts in the light most favorable to the p la in tif f ." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "p ara l lels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's d u ty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., 8 3 9 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. B o n z e le t, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a p ro se civil rights complaint, the court may not "supply essential elements of claims that were n o t initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th C ir. 1982). "Vague and conclusory allegations of official participation in civil rights violations a re not sufficient to withstand a motion to dismiss." Id. 3

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A.

4 2 U.S.C. § 1983 Liability

S e c tio n 1983 imposes two essential proof requirements upon a claimant: (1) that a person a c tin g under color of state law committed the conduct at issue, and (2) that the conduct deprived th e claimant of some right, privilege, or immunity protected by the Constitution or laws of the U n ite d States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117, 2122 (2 0 0 4 ); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). B. A c c e ss to Courts claim

P lain tiff alleges that, while he was housed at the Richard J. Donovan Correctional Facility (" R J D " ), he was denied adequate access to the prison's law library. (See Compl. at 4-7.) P riso n e rs do "have a constitutional right to petition the government for redress of their g rie v a n ce s, which includes a reasonable right of access to the courts." O'Keefe v. Van Boening, 8 2 F.3d 322, 325 (9th Cir. 1996); accord Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). In Bounds, 430 U.S. at 817, the Supreme Court held that "the fundamental constitutional right o f access to the courts requires prison authorities to assist inmates in the preparation and filing o f meaningful legal papers by providing prisoners with adequate law libraries or adequate a ss is ta n c e from persons who are trained in the law." Bounds v. Smith, 430 U.S. 817, 828 (1977). T o establish a violation of the right to access to the courts, however, a prisoner must allege facts s u f f ic ie n t to show that: (1) a nonfrivolous legal attack on his conviction, sentence, or conditions o f confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a re s u lt. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An "actual injury" is defined as "actual p re ju d ic e with respect to contemplated or existing litigation, such as the inability to meet a filing d e a d lin e or to present a claim." Id. at 348; see also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 1 9 9 4 ); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); Keenan v. Hall, 83 F.3d 1083, 1093 (9th Cir. 1996). H e re , Plaintiff has failed to alleged any actions with any particularity that have precluded h is pursuit of a non-frivolous direct or collateral attack upon either his criminal conviction or s e n te n c e or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to a c c e ss to the courts protects only an inmate's need and ability to "attack [his] sentence[], directly 4

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o r collaterally, and ... to challenge the conditions of [his] confinement."); see also Christopher v . Harbury, 536 U.S. 403, 415 (2002) (the non-frivolous nature of the "underlying cause of a c tio n , whether anticipated or lost, is an element that must be described in the complaint, just as m u ch as allegations must describe the official acts frustrating the litigation."). Moreover, P lain tiff has not alleged facts sufficient to show that he has been actually injured by any specific d e f e n d a n t's actions. Lewis, 518 U.S. at 351. In short, Plaintiff has not alleged that "a complaint he prepared was dismissed," or that h e was "so stymied" by any individual defendant's actions that "he was unable to even file a c o m p la in t," direct appeal or petition for writ of habeas corpus that was not "frivolous." Lewis, 5 1 8 U.S. at 351; Christopher, 536 U.S. at 416 ("like any other element of an access claim[,] ... th e predicate claim [must] be described well enough to apply the `nonfrivolous' test and to show t h a t the `arguable' nature of the underlying claim is more than hope."). Therefore, Plaintiff's a c ce ss to courts claims must be dismissed for failing to state a claim upon which section 1983 re lie f can be granted. See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446. C. R e sp o n d e a t Superior

P la in tif f names Warden Neotti as a Defendant in this matter but fails to set forth any f a c tu a l allegations with regard to Defendant Neotti in the body of Plaintiff's Complaint. Thus, it appears that Plaintiff seeks to hold Defendant Neotti liable in his supervisory capacity. However, there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, "[t]he inquiry into causation must be

in d iv i d u a liz e d and focus on the duties and responsibilities of each individual defendant whose a c ts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F .2 d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). In order to avoid the respondeat superior bar, Plaintiff must allege personal acts by each individual D e f e n d a n t which have a direct causal connection to the constitutional violation at issue. See S a n d e rs v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th C ir. 1989). /// 5

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S u p e rv is o ry prison officials may only be held liable for the allegedly unconstitutional v i o l a tio n s of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what e x te n t they personally participated in or directed a subordinate's actions, and (2) in either acting o r failing to act, they were an actual and proximate cause of the deprivation of Plaintiff's c o n s titu tio n a l rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, h o w e v e r, Plaintiff's Complaint fails to set forth facts which might be liberally construed to su p p o rt an individualized constitutional claim against Defendant Neotti. A c c o rd in g ly, the Court finds that Plaintiff's Complaint fails to state a section 1983 claim u p o n which relief may be granted , and is therefore subject to dismissal pursuant to 28 U.S.C. § § 1915(e)(2)(b) & 1915A(b). The Court will provide Plaintiff with an opportunity to amend h is pleading to cure the defects set forth above. Plaintiff is warned that if his amended complaint f a ils to address the deficiencies of pleading noted above, it may be dismissed with prejudice and w ith o u t leave to amend. T o the extent that Plaintiff chooses to file an Amended Complaint, the Court cautions P la in tif f that his entire action may be subject to dismissal on the grounds that it appears that he f a ile d to exhaust his administrative remedies prior to bringing this action. T h e PLRA amended 42 U.S.C. § 1997e(a) to provide that "[n]o action shall be brought w ith respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison o r other correctional facility until such administrative remedies as are available are exhausted." 4 2 U.S.C. § 1997e(a). "Once within the discretion of the district court, exhaustion in cases c o v e re d by § 1997e(a) is now mandatory." Porter v. Nussle, 534 U.S. 516 (2002). "The `a v a ila b le ' `remed[y]' must be `exhausted' before a complaint under § 1983 may be entertained," Booth v. Churner, 532 U.S. 731, 738 (2001), and "regardless of the relief offered through a d m in is tra tiv e procedures." Id. at 741. Moreover, the Supreme Court held in Woodford v. Ngo, 5 4 8 U.S. 81, 83-84 (2006) that "[p]roper exhaustion demands compliance with an agency's d e a d lin e s and other critical procedural rules because no adjudicative system can function e f f e c tiv e ly without imposing some orderly structure on the court of its proceedings." Id. at 90. T h e Court further held that "[proper exhaustion] means ... a prisoner must complete the 6

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a d m in i str a tiv e review process in accordance with the applicable procedural rules . . . as a p re c o n d itio n to bring suit in federal court." Id. T h e plain language of 42 U.S.C. § 1997e(a) provides that no § 1983 action "shall be b r o u g h t . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added). The Ninth Circuit's decision in McKinney v. Carey, 311 F.3d 1 1 9 8 (9th Cir. 2002) holds that prisoners who are incarcerated at the time they file a civil action w h ic h challenges the conditions of their confinement are required to exhaust "all administrative re m e d ie s as are available" as a mandatory precondition to suit. See McKinney, 311 F.3d at 1198; s e e also Perez v. Wis. Dep't of Corrections, 182 F.3d 532, 534-35 (7th Cir. 1999) ("Congress c o u ld have written a statute making exhaustion a precondition to judgment, but it did not. The a c tu a l statute makes exhaustion a precondition to suit.") (emphasis original). Section 1997e(a) " c le a rly contemplates exhaustion prior to the commencement of the action as an indispensable re q u ire m e n t. Exhaustion subsequent to the filing of the suit will not suffice." McKinney, 311 F .3 d at 1198 (quoting Medina-Claudio v. Rodriquez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002)). I I I. C ONCLUSION AND ORDER Good cause appearing therefor, IT IS HEREBY ORDERED that: 1. GRANTED. 2. T h e Secretary of California Department of Corrections and Rehabilitation, or his Plaintiff's Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2] is

d e sig n e e , shall collect from Plaintiff's prison trust account the $350 balance of the filing fee o w e d in this case by collecting monthly payments from the account in an amount equal to twenty p erc en t (20%) of the preceding month's income and forward payments to the Clerk of the Court ea ch time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). A L L PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER A S S IG N E D TO THIS ACTION. 3. The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate,

S e c re ta ry , California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, 7

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S a c ra m e n to , California 95814. I T IS FURTHER ORDERED that: 4. P la in t if f' s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C.

§ § 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave fro m the date this Order is "Filed" in which to file a First Amended Complaint which cures all th e deficiencies of pleading noted above. Plaintiff's Amended Complaint must be complete in its e lf without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants n o t named and all claims not re-alleged in the Amended Complaint will be deemed to have been w a iv e d . See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff's Amended C o m p la in t fails to state a claim upon which relief may be granted, it may be dismissed without furthe r leave to amend and may hereafter be counted as a "strike" under 28 U.S.C. § 1915(g). S e e McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996). IT IS SO ORDERED. D A T E D : August 20, 2010

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

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