Deere v. Brown et al

Filing 7

ORDER DISMISSING First Amended Complaint For Failure To State A Claim Pursuant To 28 U.S.C. Sections 1915(e)(2) And 1915A(b): Plaintiff is granted 60 days leave from the date this Order is "Filed" in which to file a Second Amended Complaint which cures all the deficiencies of pleading noted. If Plaintiff's Amended Complaint fails to state a claim upon which relief may be granted, it may be dismissed without further leave to amend and may hereafter be counted as a "strike" under 28 U.S.C. Section 1915(g). Signed by Judge William Q. Hayes on 4/11/2012. (All non-registered users served via U.S. Mail Service; per Order, a blank 1983 Second Amended Complaint form also was mailed to Plaintiff.) (mdc)

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DEPUTY

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

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

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Civil No.

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

Plaintiff,

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vs.

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1lcvl579 WQH (JMA)

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

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Defendants.

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PROCEDURAL HISTORY

On July 15, 2011, Arthur Ray Deere, Jr. ("Plaintiff'), a state prisoner currently

26 II incarcerated at Calipatria State Prison located in Calipatria, California, and proceeding pro se,

2711 submitted a civil action pursuantto 42 U.S.C. § 1983. Additionally, Plaintiff filed a Motion to
2811 Proceed In Forma Pauperis ("IFP") pursuantto 28 U.S.C. § 1915(a). On August 15,2011, this

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fAC.wp:I. 4]'111

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Ilcvl579 WQH (JMA)

1 " Court granted Plaintiffs Motion to Proceed IFP but sua sponte dismissed his Complaint for
2 II failing to state a claim upon which relief could be granted. See Aug. 15, 2011 Order at 6-7.
3 II Plaintiff was granted forty five (45) days leave to file an Amended Complaint in order to correct
4" the deficiencies of pleading identified by the Court. Id. at 7. On February 23, 2012, well after
5 II the deadline to submit an Amended Complaint passed, Plaintiff submitted his First Amended
6 Complaint which the Court pennitted to be filed.

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INITIAL SCREENING PER 28 U.S.C.

§§ 1915(e)(2)(b)(ii) and 1915A(b)(1)

As the Court stated in its previous Order, notwithstanding IFP status or the payment of

10 II any partial filing fees, the Court must subject each civil action commenced pursuant to 28 U.S.C.
11 " § 1915(a) to mandatory screening and order the sua sponte dismissal of any case it finds
12 II "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking
13" monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B);
14" Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C.

15 II § 1915(e)(2)(B) are not limited to prisoners."); Lopezv. Smith, 203 F.3d 1122, 1126-27 (9th Cir.
16" 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only pennits but requires" the court to
17 " sua sponte dismiss an in forma pauperis complaint that fails to state a claim).
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Before its amendment by the PLRA, fonner 28 U.S.C. § 1915(d) pennitted sua sponte

1911 dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as
20 II amended, 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to
21 II the IFP provisions of section 1915 make and rule on its own motion to dismiss before directing
2211 the U.S. Marshal to effect service pursuant to FED.R.Clv.P. 4(c)(3). See Calhoun, 254 F.3d at
23 II 845; Lopez, 203 F.3dat 1127; see also McGore v. Wrigglesworth, 114 F.3d 601,604-05 (6th Cir.
24 II 1997) (stating that sua sponte screening pursuant to § 1915 should occur "before service of
25 II process is made on the opposing parties").
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"[W]hen detennining whether a complaint states a claim, a court must accept as true all

27 II allegations of material fact and must construe those facts in the light most favorable to the
2811 plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren, 152 F.3d at 1194

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llcvl579 WQH (JMA)

1 II (noting that § 1915(e)(2) "parallels the language ofFederal Rule ofCivil Procedure 12(b)(6)");
2 II Andrews, 398 F.3d at 1121. In addition, the Court has a duty to liberally construe a pro se's
3 \I pleadings, see Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621,623 (9th Cir. 1988),
4 II which is "particularly important in civil rights cases." F erdik v. Bonzelet, 963 F.2d 1258, 1261
511 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the
6 II court may not "supply essential elements of claims that were not initially pled." Ivey v. Board
711 o/Regents o/the University 0/Alaska, 673 F.2d 266, 268 (9th Cir. 1982),
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Section 1983 imposes two essential proofrequirements upon a claimant: (1) that a person

9 \I acting under color ofstate law committed the conduct at issue, and (2) that the conduct deprived
10 \I the claimant of some right, privilege, or immunity protected by the Constitution or laws of the
11 \I United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122
121\ (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).
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While not entirely clear, Plaintiff appears to allege that he is not able to make telephone

1411 calls to his mother due to a contract the prison has with a telephone company called "Global Tel
15 II Link." (See FAC at 5.) Plaintiff claims that there is a "State sponsored extortion attempt aimed
1611 at forcing inmates families who don't have Global Tel Link service to switch to Global and/or
17 II pay in advance a deposit." (Id.) "Although prisoners have a First Amendment right to telephone
18 II access, this right is subject to reasonable limitations arising from the legitimate penological and
19 II administrative interests ofthe prison system." Johnson v. State o/California, 207 F.3d 650,656
20 II (9th Cir. 2000) (citation omitted.) Plaintiff claims that the "illegal contract" between the CDCR
21 II and Global Tel and the high rates charged by Global Tel is what has led to inmates creating a
22 II "black market for cellphones." (FAC at 5.) As the Court stated in Johnson, "there is no authority
23 \I for the proposition that prisoners are entitled to a specific rate for their telephone calls." Id.
2411 Accordingly, the Court dismisses Plaintiffs allegations for failing to state a claim upon which
25 II relief may be granted.
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llcvlS79 WQH (JMA)

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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.

Plaintiffs First Amended Complaint is DISMISSED without prejudice pursuant

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to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiffis GRANTED sixty (60) days

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leave from the date this Order is "Filed" in which to file a Second Amended Complaint which

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cures all the deficiencies of pleading noted above. Plaintiffs Amended Complaint must be

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

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Defendants not named and all claims not re-alleged in the Amended Complaint will be deemed

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to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if

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Plaintiff s Amended Complaint fails to state a claim upon which relief may be granted, it may

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be dismissed without further leave to amend and may hereafter be counted as a "strike" under

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28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).

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

ITISSO~D.
DATED:
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HON. WILLIAM~HAYES
United States Dis net Judge

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