Helm v. Gore et al

Filing 4

ORDER granting 2 Motion for Leave to Proceed in Forma Pauperis. The Watch Commander, 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 th e 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). Pla's Complaint is dismissed w/o prejudice pursuant to 28 USC 1915(e)(2)(b) and 1915A(b). Pla is granted 45 days from the date this Order is filed to file a First Amended Complaint. Pla's Amended Complaint must be complete itself w/o reference to the superseding pleading. Dfts not named and all claims not re-alleged in the Amended Complaint will be deemed to have been waived. If Pla's Amended Complaint fails to state a claim upon which relief may be granted, it may be dismissed w/o further leave to amend and may be counted as a "strike" under 28 USC 1915(g). Signed by Judge Irma E. Gonzalez on 8/28/2012. (Certified Copy of this Order mailed to Warch Commander, George Bailey Detention Facility) (Blank First Amended Complaint form t/w copy of this Order mailed to Plaintiff)(All non-registered users served via U.S. Mail Service) (jah)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ROBERT JEFFREY HELM, Inmate Booking No. 11188031, Civil No. Plaintiff, 13 vs. 16 17 18 19 ORDER: (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO PARTIAL FILING FEE AND GARNISHING $ 350 BALANCE FROM PRISONER’S TRUST ACCOUNT PURSUANT TO 28 U.S.C. § 1915(a) [ECF No. 2]; 14 15 12cv1835 IEG (RBB) SHERIFF WILLIAM GORE; GEORGE BAILEY DETENTION FACILITY; GOVERNOR JERRY BROWN, (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 20 Defendants. 21 22 23 Robert Jeffrey Helms (“Plaintiff”), an inmate currently incarcerated at the George Bailey 24 Detention Facility located in San Diego, California, and proceeding in pro se, has filed this civil 25 rights action pursuant to 42 U.S.C. § 1983 Plaintiff has not prepaid the $350 filing fee mandated 26 by 28 U.S.C. § 1914(a); instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) 27 pursuant to 28 U.S.C. § 1915(a) [ECF No. 2]. 28 /// 1 12cv1835 IEG (RBB) 1 I. 2 MOTION TO PROCEED IFP 3 All parties instituting any civil action, suit or proceeding in a district court of the United 4 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 5 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee 6 only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 7 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to 8 proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their 9 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 10 844, 847 (9th Cir. 2002). 11 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a 12 prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account 13 statement (or institutional equivalent) for the prisoner for the six-month period immediately 14 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 15 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 16 payment of 20% of (a) the average monthly deposits in the account for the past six months, or 17 (b) the average monthly balance in the account for the past six months, whichever is greater, 18 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 19 institution having custody of the prisoner must collect subsequent payments, assessed at 20% 20 of the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and 21 forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 22 § 1915(b)(2). 23 The Court finds that Plaintiff has no available funds from which to pay filing fees at this 24 time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited 25 from bringing a civil action or appealing a civil action or criminal judgment for the reason that 26 the prisoner has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 27 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 28 dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds 2 12cv1835 IEG (RBB) 1 available to him when payment is ordered.”). Therefore, the Court GRANTS Plaintiff’s Motion 2 to Proceed IFP [ECF No. 2] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). 3 However, the entire $350 balance of the filing fees mandated shall be collected and forwarded 4 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 5 § 1915(b)(1). 6 III. 7 SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 8 The PLRA also obligates the Court to review complaints filed by all persons proceeding 9 IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 10 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 11 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 12 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 13 provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, 14 which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who 15 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126- 16 27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) 17 (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing 18 § 1915A). 19 “[W]hen determining whether a complaint states a claim, a court must accept as true all 20 allegations of material fact and must construe those facts in the light most favorable to the 21 plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) 22 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s 23 duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept., 24 839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v. 25 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a 26 pro se civil rights complaint, the court may not “supply essential elements of claims that were 27 not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th 28 Cir. 1982). “Vague and conclusory allegations of official participation in civil rights violations 3 12cv1835 IEG (RBB) 1 are not sufficient to withstand a motion to dismiss.” Id. 2 A. 42 U.S.C. § 1983 Liability 3 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person 4 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived 5 the claimant of some right, privilege, or immunity protected by the Constitution or laws of the 6 United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117, 2122 7 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). 8 B. Eighth Amendment claims 9 Plaintiff claims that his Eighth Amendment rights have been violated due to 10 overcrowding at George Bailey Detention Facility. 11 conditions of confinement in general terms and rarely provides any specific factual allegation 12 pertaining to Plaintiff as an individual. Plaintiff phrases a majority of his claims as though he 13 is bringing this matter as a class action on behalf of all the inmates housed at Calipatria State 14 Prison. However, because Plaintiff is proceeding pro se, he has no authority to represent the 15 legal interest of any other party. See Cato v. United States, 70 F.3d 1103, 1105 n.1 (9th Cir. 16 1995); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987); see also 17 FED.R.CIV.P. 11(a) (“Every pleading, written motion, and other paper shall be signed by at least 18 one attorney of record in the attorney’s original name, or if the party is not represented by an 19 attorney, shall be signed by the party.”). 20 Plaintiff’s Complaint speaks of his In addition, allegations of overcrowding, without additional facts, are insufficient to state 21 a claim under the Eighth Amendment. See Rhodes v. Chapman, 452 U.S. 337, 348 (1981). 22 “[S]ubjection of a prisoner to lack of sanitation that is severe or prolonged can constitute an 23 infliction of pain within the meaning of the Eighth Amendment.” Anderson v. County of Kern, 24 45 F.3d 1310, 1314 (9th Cir. 1995). Conditions of confinement may, consistent with the 25 Constitution, can be restrictive and harsh. Rhodes, 452 U.S. at 337. 26 Plaintiff also generally alleges that his right to adequate medical care has been violated 27 due to medical staff “poorly administering jail health services.” (Compl. at 14.) “The 28 unnecessary and wanton infliction of pain upon incarcerated individuals under color of law 4 12cv1835 IEG (RBB) 1 constitutes a violation of the Eighth Amendment.” Toguchi v. Chung, 391 F.3d 1051, 1056-57 2 (9th Cir. 2004) (citing McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)). A violation of 3 the Eighth Amendment occurs when prison officials are deliberately indifferent to a prisoner’s 4 medical needs. Id.; see also Estelle v. Gamble, 429 U.S. 97, 105 (1976). 5 To allege an Eighth Amendment violation, a prisoner must “satisfy both the objective and 6 subjective components of a two-part test.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) 7 (citation omitted). 8 civilized measure of life’s necessities.” Id. (citation omitted). Second, he must allege the prison 9 official “acted with deliberate indifference in doing so.” Id. (citation and internal quotation 10 First, he must allege that prison officials deprived him of the “minimal marks omitted). 11 A prison official acts with “deliberate indifference ... only if [he is alleged to] know[] of 12 and disregard[] an excessive risk to inmate health and safety.” Gibson v. County of Washoe, 13 Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002) (citation and internal quotation marks omitted). 14 Under this standard, the official must be alleged to “be aware of facts from which the inference 15 could be drawn that a substantial risk of serious harm exist[ed],” and must also be alleged to 16 also have drawn that inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). “If a [prison 17 official] should have been aware of the risk, but was not, then the [official] has not violated the 18 Eighth Amendment, no matter how severe the risk.” Gibson, 290 F.3d at 1188 (citation omitted). 19 This “subjective approach” focuses only “on what a defendant’s mental attitude actually was.” 20 Farmer, 511 U.S. at 839. “Mere negligence in diagnosing or treating a medical condition, 21 without more, does not violate a prisoner’s Eighth Amendment rights.” McGuckin, 974 F.2d at 22 1059 (alteration and citation omitted). 23 Plaintiff fails to identify a serious medical need and he fails to allege with any specificity 24 how he has been denied adequate medical care. Thus, the Court cannot make a finding that he 25 has sufficiently alleged “deliberate indifference” on the part of any named Defendant. 26 Moreover, Plaintiff fails to indicate how any of the named Defendants failed to adequately treat 27 his medical condition or whether he suffered any harm as a result of the alleged inadequate 28 medical care. 5 12cv1835 IEG (RBB) 1 C. Respondeat Superior claims 2 Plaintiff names Sheriff Gore and Governor Jerry Brown as Defendants in this matter but 3 fails to set forth any specific factual allegations with regard to these Defendants in the body of 4 Plaintiff’s Complaint. Thus, it appears that Plaintiff seeks to hold these Defendants liable in 5 their supervisory capacity. However, there is no respondeat superior liability under 42 U.S.C. 6 § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, “[t]he inquiry into 7 causation must be individualized and focus on the duties and responsibilities of each individual 8 defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer 9 v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 10 (1976)). In order to avoid the respondeat superior bar, Plaintiff must allege personal acts by each 11 individual Defendant which have a direct causal connection to the constitutional violation at 12 issue. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 13 Supervisory prison officials may only be held liable for the allegedly unconstitutional 14 violations of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what 15 extent they personally participated in or directed a subordinate’s actions, and (2) in either acting 16 or failing to act, they were an actual and proximate cause of the deprivation of Plaintiff’s 17 constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, 18 however, Plaintiff’s Complaint fails to set forth facts which might be liberally construed to 19 support an individualized constitutional claim against Defendants Gore or Brown. 20 D. Access to Courts 21 Plaintiff alleges that his right to access to the courts has been denied because jail officials 22 have failed to provide him with adequate time in the law library. (See Compl. at 12-13.) 23 Prisoners do “have a constitutional right to petition the government for redress of their 24 grievances, which includes a reasonable right of access to the courts.” O’Keefe v. Van Boening, 25 82 F.3d 322, 325 (9th Cir. 1996); accord Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). 26 In Bounds, 430 U.S. at 817, the Supreme Court held that “the fundamental constitutional right 27 of access to the courts requires prison authorities to assist inmates in the preparation and filing 28 of meaningful legal papers by providing prisoners with adequate law libraries or adequate 6 12cv1835 IEG (RBB) 1 assistance from persons who are trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977). 2 To establish a violation of the right to access to the courts, however, a prisoner must allege facts 3 sufficient to show that: (1) a nonfrivolous legal attack on his conviction, sentence, or conditions 4 of confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a 5 result. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An “actual injury” is defined as “actual 6 prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing 7 deadline or to present a claim.” Id. at 348; see also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 8 1994); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); Keenan v. Hall, 83 F.3d 1083, 1093 9 (9th Cir. 1996). 10 Here, Plaintiff has failed to alleged any actions with any particularity that have precluded 11 his pursuit of a non-frivolous direct or collateral attack upon either his criminal conviction or 12 sentence or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to 13 access to the courts protects only an inmate’s need and ability to “attack [his] sentence[], directly 14 or collaterally, and ... to challenge the conditions of [his] confinement.”). In addition, Plaintiff 15 must also describe the non-frivolous nature of the “underlying cause of action, whether 16 anticipated or lost.” Christopher v. Harbury, 536 U.S. 403, 415 (2002). 17 In short, Plaintiff has not alleged that “a complaint he prepared was dismissed,” or that 18 he was “so stymied” by any individual defendant’s actions that “he was unable to even file a 19 complaint,” direct appeal or petition for writ of habeas corpus that was not “frivolous.” Lewis, 20 518 U.S. at 351; Christopher, 536 U.S. at 416 (“like any other element of an access claim[,] ... 21 the predicate claim [must] be described well enough to apply the ‘nonfrivolous’ test and to show 22 that the ‘arguable’ nature of the underlying claim is more than hope.”). Therefore, Plaintiff’s 23 access to courts claims must be dismissed for failing to state a claim upon which section 1983 24 relief can be granted. See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446. 25 E. Fourteenth Amendment 26 Plaintiff also claims that the jail’s administrative grievance procedure violates his right 27 to due process under the Fourteenth Amendment. (See Compl. at 10.) The Fourteenth 28 Amendment provides that: “[n]o state shall ... deprive any person of life, liberty, or property, 7 12cv1835 IEG (RBB) 1 without due process of law.” U.S. CONST. amend. XIV, § 1. “The requirements of procedural 2 due process apply only to the deprivation of interests encompassed by the Fourteenth 3 Amendment’s protection of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569 4 (1972). State statutes and prison regulations may grant prisoners liberty or property interests 5 sufficient to invoke due process protection. Meachum v. Fano, 427 U.S. 215, 223-27 (1976). 6 To state a procedural due process claim, Plaintiff must allege: “(1) a liberty or property interest 7 protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack 8 of process.” Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000). 9 However, the Ninth Circuit has held that prisoners have no protected property interest in 10 an inmate grievance procedure arising directly from the Due Process Clause. See Ramirez v. 11 Galaza, 334 F.3d 850, 869 (9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement 12 to a specific prison grievance procedure”) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 13 1988) (finding that the due process clause of the Fourteenth Amendment creates “no legitimate 14 claim of entitlement to a [prison] grievance procedure”)); accord Adams v. Rice, 40 F.3d 72, 75 15 (4th Cir. 1994) (1995); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). 16 In addition, Plaintiff has failed to plead facts sufficient to show that prison official 17 deprived him of a protected liberty interest by allegedly failing to respond to his prison 18 grievances in a satisfactory manner. While a liberty interest can arise from state law or prison 19 regulations, Meachum, 427 U.S. at 223-27, due process protections are implicated only if 20 Plaintiff alleges facts to show that Defendants: (1) restrained his freedom in a manner not 21 expected from his sentence, and (2) “impose[d] atypical and significant hardship on [him] in 22 relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995); 23 Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997). Plaintiff pleads nothing to suggest how 24 the allegedly inadequate review and consideration of his inmate grievances resulted in an 25 “atypical” and “significant hardship.” Sandin, 515 U.S. at 483-84. Thus, to the extent Plaintiff 26 challenges the procedural adequacy of inmate grievance procedures, his Complaint fails to state 27 a due process claim. 28 /// 8 12cv1835 IEG (RBB) 1 Accordingly, the Court finds that Plaintiff’s Complaint fails to state a section 1983 claim 2 upon which relief may be granted, and is therefore subject to dismissal pursuant to 28 U.S.C. 3 §§ 1915(e)(2)(b) & 1915A(b). The Court will provide Plaintiff with an opportunity to amend 4 his pleading to cure the defects set forth above. Plaintiff is warned that if his amended complaint 5 fails to address the deficiencies of pleading noted above, it may be dismissed with prejudice and 6 without leave to amend. 7 III. 8 CONCLUSION AND ORDER 9 10 11 12 Good cause appearing therefor, IT IS HEREBY ORDERED that: 1. Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is GRANTED. 2. The Watch Commander for George Bailey Detention Facility, or his designee, shall 13 collect from Plaintiff’s prison trust account the $350 balance of the filing fee owed in this case by 14 collecting monthly payments from the account in an amount equal to twenty percent (20%) of the 15 preceding month’s income and forward payments to the Clerk of the Court each time the amount in the 16 account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE 17 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 18 19 3. The Clerk of the Court is directed to serve a copy of this Order on Watch Commander, George Bailey Detention Facility, 446 Alta Road, Suite 5300, San Diego, California 92158. 20 IT IS FURTHER ORDERED that: 21 4. Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. 22 §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave from the 23 date this Order is “Filed” in which to file a First Amended Complaint which cures all the deficiencies 24 of pleading noted above. Plaintiff’s Amended Complaint must be complete in itself without reference 25 to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants not named and all claims not re- 26 alleged in the Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 27 565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended Complaint fails to state a claim upon which 28 relief may be granted, it may be dismissed without further leave to amend and may hereafter be 9 12cv1835 IEG (RBB) 1 counted as a “strike” under 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th 2 Cir. 1996). 3 5. The Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff. 4 IT IS SO ORDERED. 5 DATED: August 28, 2012 6 7 _________________________________________ HON. IRMA E. GONZALEZ United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 12cv1835 IEG (RBB)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?