Deere v. Brown et al

Filing 4

ORDER (1) Granting Motion To Proceed In Forma Pauperis, Imposing No Initial Partial Filing Fee, Garnishing $350.00 Balance From Prisoner's Trust Account (Re Doc. 2 ); And (2) Dismissing Complaint For Failure To State A Claim Pursuant To 28 U.S.C. Sections 1915(e)(2) And 1915A(b): The Secretary CDCR, or his designee, shall collect from Plaintiff's prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the account in an am ount equal to 20% of the preceding month's 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. Section 1915(b)(2). Plaintiff is granted 45 days leave from t he date this Order is "Filed" in which to file a First Amended Complaint which cures all the deficiencies of pleading noted. Signed by Judge William Q. Hayes on 8/15/2011. (Order electronically transmitted to Matthew Cate, Secretary CDCR; all non-registered users served via U.S. Mail Service; per Order, a blank 1983 First Amended Complaint form also was mailed to Plaintiff.) (mdc)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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ARTHUR RAY DEERE, SR,
CDCR #F-94040,

Civil No.

Plaintiff,

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

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vs.

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11cv1579 WQH (JMA)

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

EDMUND G. BROWN, Governor of
California; MATTHEW CATES, Secretary
of California Dep’t of Corrections and
Rehabilitation; BRIAN OLIVER, CEO of
Global Tell Link;
Defendants.

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Arthur Ray Deere, Jr. (“Plaintiff”), a state prisoner currently incarcerated at Calipatria

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State Prison located in Calipatria, California, and proceeding pro se, has submitted a civil action

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pursuant to 42 U.S.C. § 1983. 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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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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A.

Eighth Amendment Claims

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Plaintiff claims that his Eighth Amendment rights have been violated due to

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overcrowding at Calipatria State Prison. However, these claims are subject to sua sponte

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dismissal pursuant to 28 U.S.C. § 1915A(b)(1) because they appear to be duplicative of claims

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brought in another action Plaintiff is already litigating. Plaintiff’s Complaint contains identical

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claims that are found in Deere v. Calipatria State Prison Medical Staff, et al., S.D. Cal. Civil

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Case No. 11cv0506 JLS (POR). A court “may take notice of proceedings in other courts, both

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within and without the federal judicial system, if those proceedings have a direct relation to

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matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971

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F.2d 244, 248 (9th Cir. 1992).

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A prisoner’s complaint is considered frivolous under 28 U.S.C. § 1915A(b)(1) if it

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“merely repeats pending or previously litigated claims.” Cato v. United States, 70 F.3d 1103,

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1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal

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quotations omitted). Because Plaintiff has already litigated the same claims presented in the

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instant action in Deere v. Calipatria State Prison Medical Staff, et al., S.D. Cal. Civil Case No.

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11cv0506 JLS (POR), the Court hereby DISMISSES Plaintiff’s Eighth Amendment claims from

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this action pursuant to 28 U.S.C. § 1915A(b)(1) without leave to amend. See Cato, 70 F.3d at

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1105 n.2; Resnick, 213 F.3d at 446 n.1.

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B.

Claims against Private Parties

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Plaintiff also seeks to hold liable the CEO of a telephone company because he claims that

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he has been unable to call his mother since he has been incarcerated. However, Plaintiff fails

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to allege any actions on the part of Defendant Oliver which were taken “under color of state

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law.” See 42 U.S.C. § 1983, 28 U.S.C. § 1915(e)(2)(B)(ii). Private parties do not generally act

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under color of state law; thus, “purely private conduct, no matter how wrongful, is not within

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the protective orbit of section 1983.” Ouzts v. Maryland Nat’l Ins. Co., 505 F.2d 547, 550 (9th

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Cir. 1974); see also Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). While a plaintiff

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may seek to hold a private actor liable under section 1983, he must allege facts that show some

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“state involvement which directly or indirectly promoted the challenged conduct.” Ouzts, 505

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F.2d at 553; West v. Atkins, 457 U.S. 42, 49, 54 (1988); Johnson v. Knowles, 113 F.3d 1114,

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1118-1120 (9th Cir. 1997). In other words, Plaintiff must show that the private actor’s conduct

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is “fairly attributable” to the government. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982); see

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also Vincent v. Trend Western Technical Corp., 828 F.2d 563, 567 (9th Cir. 1987).

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Here, Plaintiff’s Complaint fails to allege facts sufficient to show that this Defendant

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acted on behalf of, or in any way attributable to, the state. Thus, without more, Plaintiff’s

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allegations against this Defendant fails to satisfy the first prong of a § 1983 claim. See Haygood,

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769 F.2d at 1354.

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C.

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Plaintiff names CDCR Matthew Cates and Governor Jerry Brown as Defendants in this

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matter but fails to set forth any factual allegations with regard to these Defendants in the body

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of Plaintiff’s Complaint. Thus, it appears that Plaintiff seeks to hold these Defendants liable in

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their supervisory capacity. However, there is no respondeat superior liability under 42 U.S.C.

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§ 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, “[t]he inquiry into

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causation must be individualized and focus on the duties and responsibilities of each individual

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defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer

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v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71

Respondeat Superior claims

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(1976)). In order to avoid the respondeat superior bar, Plaintiff must allege personal acts by each

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individual Defendant which have a direct causal connection to the constitutional violation at

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issue. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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Supervisory prison officials may only be held liable for the allegedly unconstitutional

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violations of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what

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extent they personally participated in or directed a subordinate’s actions, and (2) in either acting

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or failing to act, they were an actual and proximate cause of the deprivation of Plaintiff’s

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constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded,

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however, Plaintiff’s Complaint fails to set forth facts which might be liberally construed to

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support an individualized constitutional claim against Defendants Cates or Brown.

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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 that:

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1.

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

GRANTED.
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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.

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3.

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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4.

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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IT IS SO ORDERED.

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The Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff.

DATED: August 15, 2011

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WILLIAM Q. HAYES
United States District Judge

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