Franklin v. Jimenez et al

Filing 3

ORDER granting 2 Motion for Leave to Proceed in forma pauperis, imposing no initial partial filing fee and garnishing $350 balance from prisoner trust account; and dismissing action for failing to state a claim pursuant to 28 USC 1915(e)(2)(B) & 1915A(b). Plaintiff is granted 45 days leave to file a First Amended Complaint. (blank amended complaint form mailed to plaintiff).(Order electronically transmitted to Matthew Cate, Secretary CDCR). Signed by Judge John A. Houston on 10/03/11. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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GREGORY A. FRANKLIN,
CDCR # E-66269

Civil No.

Plaintiff,

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vs.

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J. JIMENEZ; HUGHEY; S. GARCIA;
T. MOLINA; S. RAMOS; J. RODRIGUEZ;
C. MACIEL,

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

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AND

Defendants.

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(2) DISMISSING ACTION FOR
FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C.
§§ 1915(e)(2)(B) & 1915A(b)

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Plaintiff, a state inmate currently incarcerated at Calipatria State Prison located in

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Calipatria, California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42

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U.S.C. § 1983. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a);

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instead, he has filed a certified copy of his inmate trust account statement which the Court

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construes as a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)

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[ECF No. 2].

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I.

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MOTION TO PROCEED IFP

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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 party’s failure to pay only if the party is

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granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493

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F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

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Prisoners granted leave to proceed IFP however, remain obligated to pay the entire fee in

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installments, regardless of whether the action is ultimately dismissed for any reason. See 28

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U.S.C. § 1915(b)(1) & (2).

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The Court finds that Plaintiff has submitted a certified copy of his trust account statement

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pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff’s trust account statement

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shows that he has insufficient funds from which to pay an initial partial filing fee.

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Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP [ECF No. 2] and

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assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the Court further

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orders the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”)

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to garnish the entire $350 balance of the filing fees owed in this case, collect and forward them

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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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SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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The Prison Litigation Reform Act (“PLRA”)’s amendments to 28 U.S.C. § 1915 also

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obligate the Court to review complaints filed by all persons proceeding IFP and by those, like

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Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced for, or

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adjudicated delinquent for, violations of criminal law or the terms or conditions of parole,

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probation, pretrial release, or diversionary program,” “as soon as practicable after docketing.”

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See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these provisions, the Court must sua

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sponte dismiss any prisoner civil action and all other IFP complaints, or any portions thereof,

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which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who

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are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-

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27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (9th Cir.

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2000) (§ 1915A).

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Before amendment by the PLRA, the 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 1126, 1130. However, 28

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U.S.C. § 1915(e)(2) and § 1915A now mandate that the court reviewing an IFP or prisoner’s suit

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make and rule on its own motion to dismiss before directing that the Complaint be served by the

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U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 (“[S]ection 1915(e) not only permits,

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but requires a district court to dismiss an in forma pauperis complaint that fails to state a

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claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing

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§ 1915A).

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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, 213 F.3d at 447; Barren, 152 F.3d at 1194.

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Plaintiff alleges several variations of a claim that he was denied adequate medical care

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by prison officials. Plaintiff alleges that he slipped and fell when trying to get onto the top bunk

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in his cell. (See Compl. at 9.) Plaintiff was taken to the medical clinic where he was examined

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and given pain medication, as well as a sling for his shoulder by Defendant Garcia. (Id. at

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10.)“The unnecessary and wanton infliction of pain upon incarcerated individuals under color

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of law constitutes a violation of the Eighth Amendment.” Toguchi v. Chung, 391 F.3d 1051,

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1056-57 (9th Cir. 2004) (citing McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)). A

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violation of the Eighth Amendment occurs when prison officials are deliberately indifferent to

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a prisoner’s medical needs. Id.; see also Estelle v. Gamble, 429 U.S. 97, 105 (1976).

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To allege an Eighth Amendment violation, a prisoner must “satisfy both the objective

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and subjective components of a two-part test.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.

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2002) (citation omitted). First, he must allege that prison officials deprived him of the “minimal

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civilized measure of life’s necessities.” Id. (citation omitted). Second, he must allege the prison

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official “acted with deliberate indifference in doing so.” Id. (citation and internal quotation

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marks omitted).

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A prison official acts with “deliberate indifference ... only if [he is alleged to] know[] of

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and disregard[] an excessive risk to inmate health and safety.” Gibson v. County of Washoe,

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Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002) (citation and internal quotation marks omitted).

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Under this standard, the official must be alleged to “be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exist[ed],” and must also be alleged to

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also have drawn that inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). “If a [prison

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official] should have been aware of the risk, but was not, then the [official] has not violated the

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Eighth Amendment, no matter how severe the risk.” Gibson, 290 F.3d at 1188 (citation

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omitted). This “subjective approach” focuses only “on what a defendant’s mental attitude

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actually was.” Farmer, 511 U.S. at 839. “Mere negligence in diagnosing or treating a medical

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condition, without more, does not violate a prisoner’s Eighth Amendment rights.” McGuckin,

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974 F.2d at 1059 (alteration and citation omitted).

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Here it is not clear why Plaintiff is seeking to hold Defendant Garcia liable. It appears

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that Defendant Garcia treated Plaintiff’s medical complaints, gave him a sling and provided pain

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medication. (See Compl. at 10.) As to Defendant Molina, he claims that Molina told other

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Defendants that there was “nothing wrong with Plaintiff.” (Id.) A mere “difference of medical

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opinion” between a prisoner and his physicians concerning the appropriate course of treatment

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is “insufficient, as a matter of law, to establish deliberate indifference.” Jackson v. McIntosh,

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90 F.3d 330, 332 (9th Cir. 1996). Instead, to allege deliberate indifference regarding choices

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between alternative courses of treatment, a prisoner must allege that the chosen course of

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treatment “was medically unacceptable under the circumstances,” and was chosen “in conscious

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disregard of an excessive risk to [the prisoner’s] health.” Id. (citation omitted). Plaintiff has

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failed to allege any facts from which the Court could find that any of the named Defendants

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acted with deliberate indifference to his serious medical needs.

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Plaintiff claims, with very little factual allegations, that several of the named Defendants

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retaliated against him because in “March 2007 plaintiff brought suit against 13 employees at

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Calipatria state prison.” (Compl. at 4.)

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must be able to prove the following five factors: “(1) An assertion that a state actor took some

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adverse action against [Plaintiff]; (2) because of (3) [Plaintiff’s] protected conduct, and that such

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action (4) chilled [Plaintiff’s] exercise of his First Amendment rights, and (5) the action did not

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reasonably advance a legitimate correctional goal.” See Rhodes v. Robinson, 408 F.3d 559, 567-

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568 (9th Cir. 2005). (citing Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000); Barnett v.

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Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam)).

In order to prevail on a claim of retaliation, Plaintiff

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Plaintiff makes no connection between this lawsuit that he brought in 2007 and the

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actions allegedly taken by Defendants. For example, Plaintiff alleges in 2009 Defendant Ramos

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ordered Plaintiff to use the top bunk. (See Compl. at 9.) Plaintiff acknowledges that his cellmate

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had a lower bunk chrono but Plaintiff did not. (Id. at 9-10.) Plaintiff has alleged no facts to

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suggest that the actions of Defendants did not reasonably advance a legitimate correctional goal

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nor does Plaintiff allege any facts to show that his First Amendment rights were “chilled.”

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Plaintiff’s claims that the actions by Defendants were directly related to the filing of a lawsuit

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two years prior simply does not contain enough facts for the Court to link the actions. See

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Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937 (2009) (“A claim has facial plausibility when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.”). Therefore, the Court must sua sponte dismiss

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Plaintiff’s retaliation claims for failing to state a claim upon which relief can be granted pursuant

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to 28 U.S.C. § 1915(e)(2) and 1915A(b).

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Finally, Plaintiff claims that his due process rights were violated when he was found

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guilty of a disciplinary infraction and he lost thirty (30) days of good time credits. (See Compl.

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at 14.) As currently pleaded, Plaintiff’s claims must be dismissed because they are premature

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under the doctrine set forth in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Constitutional

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claims involving a prison’s disciplinary or administrative decisions to revoke good-time credits

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are subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b)(1)

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since habeas corpus is the exclusive federal remedy whenever the claim for damages depends

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on a determination that a disciplinary judgment is invalid or the sentence currently being served

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is unconstitutionally long. Edwards v. Balisok, 520 U.S. 641, 643-44 (1997); Heck, 512 U.S.

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at 486-87; Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

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In order to state a claim for damages under section 1983 based on these allegations under

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Heck and Edwards, however, Plaintiff must allege facts in his Complaint sufficient to show that

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Defendants’ decision to remove his credits has already been “reversed on direct appeal,

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expunged by executive order, declared invalid by a state tribunal authorized to make such a

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determination, or called into question by a writ of habeas corpus.” Heck, 512 U.S. at 486-87.

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Plaintiff has failed to do so; therefore, he must sufficiently amend his Complaint to provide such

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a showing before any cause of action for damages accrues under the Civil Rights Act. Id.

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Even if Plaintiff were able to overcome the Heck bar, he has failed to state a Fourteenth

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Amendment due process claim. “The requirements of procedural due process apply only to the

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deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and

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property.” Board of Regents v. Roth, 408 U.S. 564, 569 (1972). State statutes and prison

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regulations may grant prisoners liberty interests sufficient to invoke due process protections.

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Meachum v. Fano, 427 U.S. 215, 223-27 (1976). However, the Supreme Court has significantly

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limited the instances in which due process can be invoked. Pursuant to Sandin v. Conner, 515

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U.S. 472, 483 (1995), a prisoner can show a liberty interest under the Due Process Clause of the

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Fourteenth Amendment only if he alleges a change in confinement that imposes an “atypical and

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significant hardship . . . in relation to the ordinary incidents of prison life.” Id. at 484 (citations

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omitted); Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997).

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In this case, Plaintiff has failed to establish a liberty interest protected by the Constitution

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because he has not alleged, as he must under Sandin, facts related to the conditions or

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consequences of disciplinary conviction which show “the type of atypical, significant

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deprivation [that] might conceivably create a liberty interest.” Id. at 486. For example, in

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Sandin, the Supreme Court considered three factors in determining whether the plaintiff

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possessed a liberty interest in avoiding disciplinary segregation: (1) the disciplinary versus

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discretionary nature of the segregation; (2) the restricted conditions of the prisoner’s

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confinement and whether they amounted to a “major disruption in his environment” when

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compared to those shared by prisoners in the general population; and (3) the possibility of

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whether the prisoner’s sentence was lengthened by his restricted custody. Id. at 486-87.

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Therefore, to establish a due process violation, Plaintiff must first show the deprivation

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imposed an atypical and significant hardship on him in relation to the ordinary incidents of

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prison life. Sandin, 515 U.S. at 483-84. Plaintiff has failed to allege any facts from which the

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Court could find there were atypical and significant hardships imposed upon him as a result of

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the Defendants’ actions. Plaintiff must allege “a dramatic departure from the basic conditions”

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of his confinement that would give rise to a liberty interest before he can claim a violation of due

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process. Id. at 485; see also Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996), amended

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by 135 F.3d 1318 (9th Cir. 1998). He has not; therefore the Court finds that Plaintiff has failed

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to allege a liberty interest in remaining free of Ad-seg, and thus, has failed to state a due process

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claim. See May, 109 F.3d at 565; Hewitt, 459 U.S. at 466; Sandin, 515 U.S. at 486 (holding that

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placing an inmate in administrative segregation for thirty days “did not present the type of

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atypical, significant deprivation in which a state might conceivably create a liberty interest.”).

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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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III.

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CONCLUSION AND ORDER

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Good cause appearing, IT IS HEREBY ORDERED:

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1.

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GRANTED.

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

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2.

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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.
3.

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

Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502,
Sacramento, California 95814.

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IT IS FURTHER ORDERED that:

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Plaintiff’s Complaint is DISMISSED for failing to state a claim upon which relief

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could be granted. See 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). However, Plaintiff is

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GRANTED forty five (45) days leave from the date this Order is “Filed” in which to file a First

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Amended Complaint which cures all the deficiencies of pleading noted above. Plaintiff’s

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Amended Complaint must be complete in itself without reference to the superseded pleading.

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See S. D.CAL. CIVLR. 15.1. Defendants not named and all claims not re-alleged in the Amended

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Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.

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1987).

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Further, if Plaintiff’s Amended Complaint still fails to state a claim upon which relief

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may be granted, it may be dismissed without further leave to amend and may hereafter be

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counted as a “strike” under 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79

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(9th Cir. 1996).

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5.

The Clerk of the Court is directed to mail a form civil rights Complaint to Plaintiff.

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DATED: October 3, 2011

_________________________________________
HON. JOHN A. HOUSTON
United States District Judge

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