Rogers v. Giurbino et al

Filing 3

ORDER granting Plaintiff's 2 Motion for Leave to Proceed in Forma Pauperis. Plaintiff's Request for Appointment of Counsel is denied w/o prejudice. Secy of CA Dept of Corrections and Rehabilitation shall collect from Pla's prison tru sct acct the $350 balance of the filing fee by collecting monthly payments from the acct in an amt equal to 20% of the preceding motion's income and forward to Clerk of Court each time amt in acct exceeds $10 in accordance w/ 28 U SC 1915(b)(2). Pla's Complaint is dismissed w/ prejudice pursuant to 28 USC 1915(e)(2)(b) and 1915A(b). Pla is granted 45 days leave from the date this Order is filed to file a First Amended Complaint. If Pla's Amended Complaint fails to st ate a claim upon which relief may be granted, it may be dismissed w/o further leave to amend and may be counted as a "strike" under 28 USC 1915(g). (Order electronically transmitted to Matthew Cate, Secretary CDCR). Signed by Judge Irma E. Gonzalez on 4/20/2011. (Blank First Amended 1983 Complaint form t/w copy of this mailed to Plaintiff), (Motion for Appointment of Counsel filed as part of Complaint 1 ) (All non-registered users served via U.S. Mail Service) (jah). Modified on 4/20/2011 - Corrected spelling (jah).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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TYRONE ROGERS,
CDCR #V-35389,

Civil No.

Plaintiff,

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ORDER:
(1) GRANTING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS, IMPOSING NO
INITIAL PARTIAL FILING FEE,
GARNISHING $350.00 BALANCE
FROM PRISONER’S TRUST
ACCOUNT [ECF No. 2];

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vs.

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(2) DENYING PLAINTIFF’S
REQUEST FOR APPOINTMENT
OF COUNSEL; and

G.J. GIURBINO; DOMINGO URIBE, Jr.;
UNKNOWN, AGPA; R. BRIGGS;
D. FOSTON;

(3) DISMISSING COMPLAINT
FOR FAILURE TO STATE A
CLAIM PURSUANT TO 28 U.S.C.
§§ 1915(e)(2) AND 1915A(b);

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Defendants.

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Tyrone Rogers, a state prisoner currently incarcerated at Centinela State Prison located

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in Imperial, California, and proceeding pro se, have submitted a civil action pursuant to 42

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U.S.C. § 1983. In his Complaint, Plaintiff has also submitted a request for appointment of

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counsel. (See Compl. at 8.) Additionally, Plaintiff has filed a Motion to Proceed In Forma

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Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No. 2].

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I.

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MOTION TO PROCEED IFP [ECF No. 2]

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All parties instituting any civil action, suit or proceeding in a district court of the United

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States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28

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U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee

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only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See

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Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to

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proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their

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action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d

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844, 847 (9th Cir. 2002).

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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a

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prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account

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statement (or institutional equivalent) for the prisoner for the six-month period immediately

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preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113,

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1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial

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payment of 20% of (a) the average monthly deposits in the account for the past six months, or

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(b) the average monthly balance in the account for the past six months, whichever is greater,

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

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institution having custody of the prisoner must collect subsequent payments, assessed at 20%

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

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forward 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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The Court finds that Plaintiff has no available funds from which to pay filing fees at this

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time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited

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from bringing a civil action or appealing a civil action or criminal judgment for the reason that

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the prisoner has no assets and no means by which to pay the initial partial filing fee.”); Taylor,

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281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing

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dismissal of 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.”). Therefore, the Court GRANTS Plaintiff’s Motion

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to Proceed IFP [ECF No. 2] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1).

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However, the entire $350 balance of the filing fees mandated shall be collected and forwarded

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to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C.

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§ 1915(b)(1).

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II.

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REQUEST FOR APPOINTMENT OF COUNSEL

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Plaintiff also requests the appointment of counsel to assist him in prosecuting this civil

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action. The Constitution provides no right to appointment of counsel in a civil case, however,

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unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v.

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Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1),

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district courts are granted discretion to appoint counsel for indigent persons. This discretion may

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be exercised only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation of both the

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‘likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se

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in light of the complexity of the legal issues involved.’ Neither of these issues is dispositive and

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both must be viewed together before reaching a decision.” Id. (quoting Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986)).

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The Court denies Plaintiff’s request without prejudice, as neither the interests of justice

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nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley,

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827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

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III.

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CLASS ACTION CLAIMS

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As an initial matter, Plaintiff has labeled his Complaint a “class action” and refers to

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himself as “Lead” Plaintiff. (Compl. at 1.) However, because Plaintiff is proceeding pro se,

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he has no authority to represent the legal interest of any other party. See Cato v. United States,

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70 F.3d 1103, 1105 n.1 (9th Cir. 1995); C.E. Pope Equity Trust v. United States, 818 F.2d 696,

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697 (9th Cir. 1987); see also FED.R.CIV.P. 11(a) (“Every pleading, written motion, and other

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paper shall be signed by at least one attorney of record in the attorney’s original name, or if the

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party is not represented by an attorney, shall be signed by the party.”). Here, while Plaintiff

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purports to bring this action on behalf of an unidentified class, he may not do so.

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IV.

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INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1)

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Notwithstanding IFP status or the payment of any partial filing fees, the Court must

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subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening

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and order the sua sponte dismissal of any case it finds “frivolous, malicious, failing to state a

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claim upon which relief may be granted, or seeking monetary relief from a defendant immune

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from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir.

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2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v.

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Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not

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only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that

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fails to state a claim).

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Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte

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dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as

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amended, 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to

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the IFP provisions of section 1915 make and rule on its own motion to dismiss before directing

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the U.S. Marshal to effect service pursuant to FED.R.CIV.P. 4(c)(3). See Calhoun, 254 F.3d at

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845; Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir.

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1997) (stating that sua sponte screening pursuant to § 1915 should occur “before service of

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process is made on the opposing parties”).

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“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to the

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plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren, 152 F.3d at 1194

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(noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”);

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Andrews, 398 F.3d at 1121. In addition, the Court has a duty to liberally construe a pro se’s

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pleadings, see Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988),

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which is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261

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(9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the

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court may not “supply essential elements of claims that were not initially pled.” Ivey v. Board

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of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person

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acting under color of state law committed the conduct at issue, and (2) that the conduct deprived

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the claimant of some right, privilege, or immunity protected by the Constitution or laws of the

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United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122

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(2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).

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Here, Plaintiff makes generalized claims regarding alleged constitutional violations but

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fails to identify any specific factual allegation that would link any of the named Defendants to

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an action that related directly to Plaintiff. “A plaintiff must allege facts, not simply conclusions,

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that show that an individual was personally involved in the deprivation of his civil rights.”

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Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). A person deprives another of a

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constitutional right under section 1983, where that person “‘does an affirmative act, participates

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in another’ s affirmative acts, or omits to perform an act which [that person] is legally required

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to do that causes the deprivation of which complaint is made.’” Preschooler II v. Clark County

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School Bd. of Trustees, 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588

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F.2d 740, 743 (9th Cir. 1978)). The “requisite causal connection may be established” not only

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by some kind of direct personal participation in the deprivation, but also by setting in motion “a

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series of acts by others which the actor knows or reasonably should know would cause others

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to inflict the constitutional injury.” Id. (citing Johnson, 588 F.2d at 743-44).

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Here, Plaintiff fails to allege facts sufficient to show that any of these named Defendants

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were personally involved in the alleged deprivation of his civil rights. Moreover, he appears to

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seek to hold some of these Defendants liable in their supervisory capacity. However, there is

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no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433,

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1437-38 (9th Cir. 1993). Instead, “[t]he inquiry into causation must be individualized and focus

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on the duties and responsibilities of each individual defendant whose acts or omissions are

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alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th

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Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)).

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A.

Religious Claims
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First Amendment and RLUIPA claims

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In his Complaint, Plaintiff alleges that prison officials have “violated Plaintiff’s right to

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attend religious services.” (Compl. at 4.) However, Plaintiff offers no other specific factual

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allegations nor does he clarify whether he intends to bring these claims under the First

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Amendment or pursuant to the Religious Land Use and Institutionalized Persons Act

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(“RLUIPA”).

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As to either Plaintiff’s potential First Amendment or RLUIPA claims, he fails to allege

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facts sufficient to state a claim. “The right to exercise religious practices and beliefs does not

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terminate at the prison door.” McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (per

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curiam). In order to implicate the Free Exercise Clause of the First Amendment, the Plaintiff

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must show that their belief is “sincerely held” and “rooted in religious belief.” See Shakur v.

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Schiro, 514 F.3d 878, 884 (citing Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994).

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In addition to First Amendment protections, the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et. seq., provides:
No government shall impose a substantial burden on the religious exercise
of a person residing in or confined to an institution . . . even if the burden results
from a rule of general applicability, unless the government demonstrates that
imposition of the burden on that person – [¶] (1) is in furtherance of a compelling
governmental interest; and [¶] (2) is the least restrictive means of furthering that
compelling governmental interest.

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42 U.S.C. § 2000cc-1(a) (emphasis added); see also San Jose Christian College v. Morgan Hill,

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360 F.3d 1024, 1033-34 (9th Cir. 2004) (“RLUIPA ‘replaces the void provisions of RFRA’ . . .

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and prohibits the government from imposing ‘substantial burdens’ on ‘religious exercise’ unless

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there exists a compelling governmental interest and the burden is the least restrictive means of

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satisfying the governmental interest.”).

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RLUIPA defines religious exercise to include “any exercise of religion, whether or not

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compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); San Jose

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Christian College, 360 F.3d at 1034. The party alleging a RLUIPA violation carries the initial

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burden of demonstrating that a governmental practice constitutes a substantial burden on his

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religious exercise. See 42 U.S.C. §§ 2000cc-1(a); 2000cc-2(b) (“[T]he plaintiff shall bear the

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burden of persuasion on whether the law (including a regulation) or government practice that is

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challenged by the claim substantially burdens the plaintiff’s exercise of religion.”).).

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Plaintiff has only referenced a failure to attend an unspecified “religious service.” (Compl. at

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4.) Thus, Plaintiff has alleged no facts on which to base either a First Amendment or RLUIPA

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claim.

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B.

Here,

Outdoor Exercise claims

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Plaintiff also appears to allege that he was denied outdoor exercise of a few occasions

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during lockdowns that lasted for only a few days with each occurrence. (See Compl. at 3.)

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“Whatever rights one may lose at the prison gates, ... the full protections of the eighth

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amendment most certainly remain in force. The whole point of the amendment is to protect

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persons convicted of crimes.” Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir. 1979) (citation

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omitted). The Eighth Amendment, however, is not a basis for broad prison reform. It requires

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neither that prisons be comfortable nor that they provide every amenity that one might find

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desirable. Rhodes v. Chapman, 452 U.S. 337, 347, 349 (1981); Hoptowit v. Ray, 682 F.2d 1237,

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1246 (9th Cir. 1981). Rather, the Eighth Amendment proscribes the “unnecessary and wanton

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infliction of pain,” which includes those sanctions that are “so totally without penological

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justification that it results in the gratuitous infliction of suffering.” Gregg v. Georgia, 428 U.S.

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153, 173, 183 (1976); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994); Rhodes, 452 U.S.

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at 347. This includes not only physical torture, but any punishment incompatible with “the

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evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356

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U.S. 86, 101 (1958); see also Estelle v. Gamble, 429 U.S. 97, 102 (1976).

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To assert an Eighth Amendment claim for deprivation of humane conditions of

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confinement, a prisoner must satisfy two requirements: one objective and one subjective.

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Farmer, 511 U.S. at 834; Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994). “Under the

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objective requirement, the prison official’s acts or omissions must deprive an inmate of the

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minimal civilized measure of life’s necessities.” Id. This objective component is satisfied so

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long as the institution “furnishes sentenced prisoners with adequate food, clothing, shelter,

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sanitation, medical care, and personal safety.” Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.

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1982); Farmer, 511 U.S. at 833; Wright v. Rushen, 642 f.2d 1129, 1132-33 (9th Cir. 1981).

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The subjective requirement, relating to the defendants’ state of mind, requires “deliberate

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indifference.” Allen, 48 F.3d at 1087. “Deliberate indifference” exists when a prison official

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“knows of and disregards an excessive risk to inmate health and safety; the official must be both

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aware of facts from which the inference could be drawn that a substantial risk of serious harm

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exists, and he must also draw the inference.” Farmer, 511 U.S. at 835. Finally, the Court must

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analyze each claimed violation in light of these requirements, for Eighth Amendment violations

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may not be based on the “totality of conditions” at a prison. Hoptowit, 682 F.2d at 246-47;

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Wright, 642 F.2d at 1132.

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In Spain, the court stated that “regular outdoor exercise is extremely important to the

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psychological and physical well being of the inmates.” Spain, 600 F.2d at 199. A temporary

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denial of outdoor exercise would not necessarily rise to the level of a constitutional violation.

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See Lopez v, 203 F.3d at 1122 (complete denial of outdoor recreation for six and one half weeks

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was sufficient to satisfy the objective requirement). Here, it appears that the deprivation of

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outdoor exercise only lasted for a few days. In addition, Plaintiff must also allege that

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Defendants acted with “deliberate indifference to an excessive risk to inmate health.” Farmer,

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511 U.S. at 837. Plaintiff has failed to allege that any of the named Defendants acted with

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“deliberate indifference.” In fact, Plaintiff makes no reference to any specific Defendant with

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regard to this Eighth Amendment claim. Thus, if Plaintiff chooses to file an Amended

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Complaint, he must specifically identify those Defendants whom he claims acted with

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“deliberate indifference” to his Eighth Amendment right.

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C.

Access to Courts

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Plaintiff further alleges that he was denied access to the prison’s law library during the

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lockdowns but offers no other specific factual allegations with regard to this claim. Prisoners

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do “have a constitutional right to petition the government for redress of their grievances, which

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includes a reasonable right of access to the courts.” O’Keefe v. Van Boening, 82 F.3d 322, 325

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(9th Cir. 1996); accord Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). In Bounds, 430

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U.S. at 817, the Supreme Court held that “the fundamental constitutional right of access to the

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courts requires prison authorities to assist inmates in the preparation and filing of meaningful

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legal papers by providing prisoners with adequate law libraries or adequate assistance from

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persons who are trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977). To establish

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a violation of the right to access to the courts, however, a prisoner must allege facts sufficient

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to show that: (1) a nonfrivolous legal attack on his conviction, sentence, or conditions of

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confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a result.

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Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An “actual injury” is defined as “actual prejudice

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with respect to contemplated or existing litigation, such as the inability to meet a filing deadline

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or to present a claim.” Id. at 348; see also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 1994);

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Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); Keenan v. Hall, 83 F.3d 1083, 1093 (9th

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Cir. 1996).

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Here, Plaintiff has failed to alleged any actions with any particularity that have precluded

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his pursuit of a non-frivolous direct or collateral attack upon either his criminal conviction or

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sentence or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to

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access to the courts protects only an inmate’s need and ability to “attack [his] sentence[], directly

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or collaterally, and ... to challenge the conditions of [his] confinement.”). In addition, Plaintiff

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must also describe the non-frivolous nature of the “underlying cause of action, whether

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anticipated or lost.” Christopher v. Harbury, 536 U.S. 403, 415 (2002) .

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In short, Plaintiff has not alleged that “a complaint he prepared was dismissed,” or that

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he was “so stymied” by any individual defendant’s actions that “he was unable to even file a

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complaint,” direct appeal or petition for writ of habeas corpus that was not “frivolous.” Lewis,

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518 U.S. at 351; Christopher, 536 U.S. at 416 (“like any other element of an access claim[,] ...

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the predicate claim [must] be described well enough to apply the ‘nonfrivolous’ test and to show

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that the ‘arguable’ nature of the underlying claim is more than hope.”). Therefore, Plaintiff’s

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access to courts claims must be dismissed for failing to state a claim upon which section 1983

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relief can be granted. See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446.

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Accordingly, the Court finds that Plaintiff’s Complaint fails to state a section 1983 claim

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upon which relief may be granted, and is therefore subject to dismissal pursuant to 28 U.S.C.

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§§ 1915(e)(2)(b) & 1915A(b). The Court will provide Plaintiff with an opportunity to amend

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his pleading to cure the defects set forth above. Plaintiff is warned that if his amended complaint

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fails to address the deficiencies of pleading noted above, it may be dismissed with prejudice and

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without leave to amend.

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V.

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CONCLUSION AND ORDER

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Good cause appearing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s request for appointment of counsel is DENIED without prejudice.

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2.

Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is

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GRANTED.
3.

The Secretary of California Department of Corrections and Rehabilitation, or his

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designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee

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owed in this case by collecting monthly payments from the account in an amount equal to twenty

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percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court

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each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2).

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ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

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ASSIGNED TO THIS ACTION.

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4.

The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate,

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Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502,

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Sacramento, California 95814.

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IT IS FURTHER ORDERED that:

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5.

Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C.

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§§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave

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from the date this Order is “Filed” in which to file a First Amended Complaint which cures all

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the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete in

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itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants

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not named and all claims not re-alleged in the Amended Complaint will be deemed to have been

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waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended

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Complaint fails to state a claim upon which relief may be granted, it may be dismissed without

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further leave to amend and may hereafter be counted as a “strike” under 28 U.S.C. § 1915(g).

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See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).

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6.

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Plaintiff.

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IT IS SO ORDERED.
4/20/11
DATED: _______________________

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The Clerk of Court is directed to mail a court approved form § 1983 complaint to

_________________________________________
HON. IRMA E. GONZALEZ, Chief Judge
United States District Court

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C:\Documents and Settings\Lc2gon\Desktop\11cv0560-grt IFP & dsm.wpd, 42011

11

11cv0560 IEG (RBB)