Walsh v. Celaya et al
Filing
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ORDER granting 3 Motion for Leave to Proceed in forma pauperis. 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 the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2); and Dismissi ng complaint for failing to state a claim. However, Plaintiff is GRANTED forty five (45) days leave from the date this Order is Filed in which to file a First Amended Complaint which cures all the deficiencies. Signed by Judge Janis L. Sammartino on 7/30/2012. (Order electronically transmitted to Matthew Cate, Secretary CDCR) (All non-registered users served via U.S. Mail Service)(mtb)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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BENJAMIN A. WALSH,
CDCR #K-35564,
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. 3]; and
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vs.
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(2) DISMISSING COMPLAINT
FOR FAILING TO STATE A
CLAIM PURSUANT TO 28 U.S.C.
§§ 1915(e)(2) AND 1915A(b)
J. CELAYA; P. ALANIZ;
KAREN CRIBBS; N. PANA,
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Defendants.
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Benjamin A. Walsh (“Plaintiff”), a state prisoner currently incarcerated at the Richard
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J. Donovan Correctional Facility located in San Diego, California, and proceeding pro se, has
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submitted a civil action pursuant to 42 U.S.C. § 1983. Additionally, Plaintiff has filed a
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certified copy of his inmate trust account statement which the Court construes as Plaintiff’s
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Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No. 3].
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I.
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MOTION TO PROCEED IFP [ECF No. 3]
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All parties instituting any civil action, suit or proceeding in a district court of the
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United States, except an application for writ of habeas corpus, must pay a filing fee of $350.
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See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the
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entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C.
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§ 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners
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granted leave to proceed IFP remain obligated to pay the entire fee in installments, regardless
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of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v.
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Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”),
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a prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund
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account statement (or institutional equivalent) for the prisoner for the six-month period
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immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.
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King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the
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Court must assess an initial payment of 20% of (a) the average monthly deposits in the
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account for the past six months, or (b) the average monthly balance in the account for the
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past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C.
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§ 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner must
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collect subsequent payments, assessed at 20% of the preceding month’s income, in any
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month in which the prisoner’s account exceeds $10, and forward those payments to the Court
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until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
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The Court finds that Plaintiff has no available funds from which to pay filing fees at
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this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be
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prohibited from bringing a civil action or appealing a civil action or criminal judgment for
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the reason that the prisoner has no assets and no means by which to pay the initial partial
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filing fee”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-
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valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due
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to the lack of funds available to him when payment is ordered.”). Therefore, the Court
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GRANTS Plaintiff’s Motion to Proceed IFP [ECF No. 3] and assesses no initial partial filing
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fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fees mandated
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shall be collected and forwarded to the Clerk of the Court pursuant to the installment
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payment provisions set forth in 28 U.S.C. § 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
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immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845
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(9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to
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prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that
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28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in
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forma pauperis complaint that 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
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to the IFP provisions of § 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
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at 845; Lopez, 203 F.3d at 1127; 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
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all 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
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12(b)(6)”); Andrews, 398 F.3d at 1121. In addition, the Court has a duty to liberally construe
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a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th
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Cir. 1988), which is “particularly important in civil rights cases,” Ferdik v. Bonzelet, 963
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F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights
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complaint, however, the court may not “supply essential elements of claims that were not
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initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th
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Cir. 1982).
Section 1983 imposes two essential proof requirements upon a claimant: (1) that a
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person acting under color of state law committed the conduct at issue, and (2) that the
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conduct deprived the claimant of some right, privilege, or immunity protected by the
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Constitution or laws of the United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 124
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S.Ct. 2117, 2122 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en
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banc).
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A.
Property claims
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In his Complaint, Plaintiff alleges that when he was transferred to various prisons,
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prison officials lost a box of his property. (See Compl. at 3-5.) Where an inmate alleges the
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deprivation of a liberty or property interest caused by the unauthorized negligent or
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intentional action of a prison official, the prisoner cannot state a constitutional claim where
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the state provides an adequate post-deprivation remedy. See Zinermon v. Burch, 494 U.S.
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113, 129-32 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984). The California Tort
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Claims Act provides an adequate post-deprivation state remedy for the random and
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unauthorized taking of property. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994).
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Thus, Plaintiff has an adequate state post-deprivation remedy and his claims relating to the
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loss of his property are not cognizable in this § 1983 action, and must be dismissed pursuant
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to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1).
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B.
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Throughout Plaintiff’s Complaint, he alleges prison officials have failed to process or
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Fourteenth Amendment claims
respond to his administrative grievances adequately. The Fourteenth Amendment provides
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that “[n]o state shall . . . deprive any person of life, liberty, or property, without due process
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of law.” U.S. CONST. amend. XIV, § 1. “The requirements of procedural due process apply
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only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection
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of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569 (1972). State statutes
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and prison regulations may grant prisoners liberty or property interests sufficient to invoke
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due process protection. Meachum v. Fano, 427 U.S. 215, 223-27 (1976). To state a
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procedural due process claim, Plaintiff must allege: “(1) a liberty or property interest
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protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3)
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lack of process.” Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000).
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However, the Ninth Circuit has held that prisoners have no protected property interest
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in an inmate grievance procedure arising directly from the Due Process Clause. See Ramirez
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v. Galaza, 334 F.3d 850, 869 (9th Cir. 2003) (“[I]nmates lack a separate constitutional
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entitlement to a specific prison grievance procedure.”) (citing Mann v. Adams, 855 F.2d 639,
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640 (9th Cir. 1988) (finding that the due process clause of the Fourteenth Amendment creates
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“no legitimate claim of entitlement to a [prison] grievance procedure”)); accord Adams v.
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Rice, 40 F.3d 72, 75 (4th Cir. 1994) (1995); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.
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1993).
In addition, Plaintiff has failed to plead facts sufficient to show that prison official
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deprived him of a protected liberty interest by allegedly failing to respond to his prison
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grievances in a satisfactory manner. While a liberty interest can arise from state law or
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prison regulations, Meachum, 427 U.S. at 223–27, due process protections are implicated
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only if Plaintiff alleges facts to show that Defendants: (1) restrained his freedom in a manner
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not expected from his sentence, and (2) “impose[d] atypical and significant hardship on [him]
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in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484
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(1995); Neal v. Shimoda, 131 F.3d 818, 827–28 (9th Cir. 1997). Plaintiff pleads nothing to
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suggest how the allegedly inadequate review and consideration of his inmate grievances
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resulted in an “atypical” and “significant hardship.” Sandin, 515 U.S. at 483–84.
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//
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Thus, to the extent Plaintiff challenges the procedural adequacy of inmate grievance
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procedures, his Complaint fails to state a due process claim. Consequently, the Court finds
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that Plaintiff’s Complaint must be dismissed sua sponte for failing to state a claim upon
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which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
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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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is GRANTED.
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2.
Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 3]
The Secretary of California Department of Corrections and Rehabilitation, or
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his designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing
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fee owed in this case by collecting monthly payments from the account in an amount equal to
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twenty percent (20%) of the preceding month’s income and forward payments to the Clerk of
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the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C.
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§ 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME
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AND NUMBER 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
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Cate, Secretary, California Department of Corrections and Rehabilitation, 1515 S Street,
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Suite 502, 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
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all the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be
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complete in itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R.
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15.1. Defendants not named and all claims not re-alleged in the Amended Complaint will be
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deemed to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
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Further, if Plaintiff’s Amended Complaint fails to state a claim upon which relief may be
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granted, it may be dismissed without further leave to amend and may hereafter be counted
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as a “strike” under 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th
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Cir. 1996).
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5.
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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: July 30, 2012
Honorable Janis L. Sammartino
United States District Judge
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