Rhodes v. California Department of Corrections and Rehabilitation

Filing 3

ORDER (1) granting 2 Motion for Leave to Proceed in forma pauperis; and (2) Dismissing Action for Seeking Monetary Damages Against Defendants who are Immune and as Frivolous: The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of th e Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). Order electronically transmitted to Matthew Cate, Secretary CDCR. Plaintiff is GRANTED 45 days leave from the date this Order is "Filed" in which to file a First Amended Complaint which cures all the deficiencies of pleading. Clerk to send 1983 form. Signed by Judge Janis L. Sammartino on 2/28/12. (All non-registered users served via U.S. Mail Service)(lmt)(form sent)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

8
9
10
11
12

GRANT CHARLES RHODES,
CDCR # V-60392

Civil
No.
Plaintiff,

13

vs.

(2) DISMISSING ACTION FOR
SEEKING MONETARY DAMAGES
AGAINST DEFENDANTS WHO ARE
IMMUNE AND AS FRIVOLOUS
PURSUANT TO 28 U.S.C.
§§ 1915(e)(2)(B) & 1915A(b)

16
17
18

CALIFORNIA DEP’T OF CORRECTIONS
AND REHABILITATION,

19

ORDER:
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS;
AND

14
15

12cv0075 JLS (POR)

Defendant.

20
21
22

Plaintiff, a state inmate currently incarcerated at Centinela State Prison in Imperial,

23

California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C.

24

§ 1983. Plaintiff has also filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28

25

U.S.C. § 1915(a).

26

///

27

///

28

///
1

12cv0075 JLS (POR)

1

I.

MOTION TO PROCEED IFP

2

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

3

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

4

U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay only if the party is

5

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

6

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

7

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

8

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

9

U.S.C. § 1915(b)(1) & (2).

10

The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C.

11

§ 1915(a)(1), and that he has attached a certified copy of his trust account statement pursuant to

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

§ 1915(b)(1).

20

II.

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who
2

12cv0075 JLS (POR)

1

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

2

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

3

2000) (§ 1915A).

4

A.

5

To state a claim under § 1983, Plaintiff must allege that: (1) the conduct he complains

6

of was committed by a person acting under color of state law; and (2) that conduct violated a

7

right secured by the Constitution and laws of the United States. Humphries v. County of Los

8

Angeles, 554 F.3d 1170, 1184 (9th Cir. 2009) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).

9

B.

42 U.S.C. § 1983

Eleventh Amendment

10

First, to the extent Plaintiff seeks money damages against the only named Defendant, the

11

California Department of Corrections and Rehabilitation (“CDCR”), the Court finds the claims

12

against this Defendant must be dismissed for failing to state a claim and for seeking damages

13

against defendants who are immune pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) & (iii). The State

14

of California, and the CDCR, an agency of the State of California, are not “persons” subject

15

to suit under § 1983 and are instead, entitled to absolute immunity from monetary damages

16

actions under the Eleventh Amendment. See Seminole Tribe of Florida v. Florida, 517 U.S. 44,

17

53-54 (1996); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106 (1984); see also

18

Hale v. State of Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (holding that a state department

19

of corrections is not a “person” within the meaning of § 1983). Therefore, Plaintiff’s claims for

20

monetary damages against the CDCR are hereby dismissed pursuant to 28 U.S.C.

21

§ 1915(e)(2)(B)(ii) & (iii) without leave to amend.

22

C.

Claim preclusion

23

Second, Plaintiff’s Complaint is subject to sua sponte dismissal because it appears to be

24

duplicative of a case Plaintiff has filed in the Superior Court of California, County of Monterey.

25

A court “may take notice of proceedings in other courts, both within and without the federal

26

judicial system, if those proceedings have a direct relation to matters at issue.” United States

27

ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

28

See In re Grant Rhodes, Sup. Ct. Ca. County of Monterey, Case No. HC 6851.
3

12cv0075 JLS (POR)

1

“Res judicata, or claim preclusion prohibits lawsuits on ‘any claims that were raised or

2

could have been raised’ in a prior action.” Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir.

3

2002) (citing Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001).

4

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

5

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

6

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

7

quotations omitted). Because Plaintiff is seeking the same forms of injunctive relief that he

8

brought in the State Court action, the Court hereby DISMISSES Plaintiff’s claims for injunctive

9

relief as both issue precluded and frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) &

10

1915A(b)(1) without leave to amend.. See Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at 446

11

n.1.

12

Plaintiff’s entire action is DISMISSED without prejudice for seeking monetary damages

13

against an immune defendant and as frivolous. Plaintiff will be given the opportunity to file an

14

Amended Complaint, however he may only allege claims for money damages against individual

15

defendants. All claims for injunctive relief are dismissed from this action without leave to

16

amend but without prejudice to Plaintiff to seek relief in his State Court action.

17

III.

CONCLUSION AND ORDER

18

Good cause appearing, IT IS HEREBY ORDERED:

19

1.

20

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

GRANTED.
2.

21

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

22

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

23

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

24

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

25

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

26

ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

27

ASSIGNED TO THIS ACTION.

28

///
4

12cv0075 JLS (POR)

1

3.

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

2

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

3

Sacramento, California 95814.

4

IT IS FURTHER ORDERED that:

5

4.

Plaintiff’s Complaint is DISMISSED without prejudice as frivolous and for

6

seeking money damages against an immune defendant pursuant to 28 U.S.C. § 1915(e)(2)(b) and

7

§ 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave from the date this

8

Order is “Filed” in which to file a First Amended Complaint which cures all the deficiencies of

9

pleading noted above. Plaintiff’s Amended Complaint must be complete in itself without

10

reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants not named and

11

all claims not re-alleged in the Amended Complaint will be deemed to have been waived. See

12

King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

13
14
15

5.

The Clerk of Court is directed to mail Plaintiff a copy of a Court approved civil

rights complaint form.
IT IS SO ORDERED.

16
17
18
19

DATED: February 28, 2012
Honorable Janis L. Sammartino
United States District Judge

20
21
22
23
24
25
26
27
28
5

12cv0075 JLS (POR)