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)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT JEFFREY HELM,
Inmate Booking No. 11188031,

Civil No.

Plaintiff,

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vs.

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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];

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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)

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Defendants.

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Robert Jeffrey Helms (“Plaintiff”), an inmate currently incarcerated at the George Bailey

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Detention Facility located in San Diego, California, and proceeding in pro se, has filed this civil

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rights action pursuant to 42 U.S.C. § 1983 Plaintiff has not prepaid the $350 filing fee mandated

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by 28 U.S.C. § 1914(a); instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a) [ECF No. 2].

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I.

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MOTION TO PROCEED IFP

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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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III.

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

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The PLRA also obligates the Court to review complaints filed by all persons proceeding

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IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused

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of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or

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conditions of parole, probation, pretrial release, or diversionary program,” “as soon as

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practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these

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provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof,

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

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

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

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(§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing

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§ 1915A).

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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, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2)

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“parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s

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duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept.,

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839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v.

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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a

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pro se civil rights complaint, the court may not “supply essential elements of claims that were

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not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th

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Cir. 1982). “Vague and conclusory allegations of official participation in civil rights violations
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are not sufficient to withstand a motion to dismiss.” Id.

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A.

42 U.S.C. § 1983 Liability

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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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B.

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 George Bailey Detention Facility.

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conditions of confinement in general terms and rarely provides any specific factual allegation

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pertaining to Plaintiff as an individual. Plaintiff phrases a majority of his claims as though he

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is bringing this matter as a class action on behalf of all the inmates housed at Calipatria State

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Prison. However, because Plaintiff is proceeding pro se, he has no authority to represent the

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legal interest of any other party. See Cato v. United States, 70 F.3d 1103, 1105 n.1 (9th Cir.

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1995); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987); see also

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FED.R.CIV.P. 11(a) (“Every pleading, written motion, and other paper shall be signed by at least

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one attorney of record in the attorney’s original name, or if the party is not represented by an

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attorney, shall be signed by the party.”).

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Plaintiff’s Complaint speaks of his

In addition, allegations of overcrowding, without additional facts, are insufficient to state

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a claim under the Eighth Amendment. See Rhodes v. Chapman, 452 U.S. 337, 348 (1981).

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“[S]ubjection of a prisoner to lack of sanitation that is severe or prolonged can constitute an

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infliction of pain within the meaning of the Eighth Amendment.” Anderson v. County of Kern,

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45 F.3d 1310, 1314 (9th Cir. 1995). Conditions of confinement may, consistent with the

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Constitution, can be restrictive and harsh. Rhodes, 452 U.S. at 337.

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Plaintiff also generally alleges that his right to adequate medical care has been violated

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due to medical staff “poorly administering jail health services.” (Compl. at 14.) “The

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unnecessary and wanton infliction of pain upon incarcerated individuals under color of law
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constitutes a violation of the Eighth Amendment.” Toguchi v. Chung, 391 F.3d 1051, 1056-57

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(9th Cir. 2004) (citing McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)). A violation of

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the Eighth Amendment occurs when prison officials are deliberately indifferent to a prisoner’s

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medical needs. Id.; see also Estelle v. Gamble, 429 U.S. 97, 105 (1976).

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To allege an Eighth Amendment violation, a prisoner must “satisfy both the objective and

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subjective components of a two-part test.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002)

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(citation omitted).

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civilized measure of life’s necessities.” Id. (citation omitted). Second, he must allege the prison

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official “acted with deliberate indifference in doing so.” Id. (citation and internal quotation

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First, he must allege that prison officials deprived him of the “minimal

marks omitted).

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A prison official acts with “deliberate indifference ... only if [he is alleged to] know[] of

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and disregard[] an excessive risk to inmate health and safety.” Gibson v. County of Washoe,

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Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002) (citation and internal quotation marks omitted).

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Under this standard, the official must be alleged to “be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exist[ed],” and must also be alleged to

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also have drawn that inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). “If a [prison

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official] should have been aware of the risk, but was not, then the [official] has not violated the

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Eighth Amendment, no matter how severe the risk.” Gibson, 290 F.3d at 1188 (citation omitted).

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This “subjective approach” focuses only “on what a defendant’s mental attitude actually was.”

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Farmer, 511 U.S. at 839. “Mere negligence in diagnosing or treating a medical condition,

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without more, does not violate a prisoner’s Eighth Amendment rights.” McGuckin, 974 F.2d at

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1059 (alteration and citation omitted).

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Plaintiff fails to identify a serious medical need and he fails to allege with any specificity

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how he has been denied adequate medical care. Thus, the Court cannot make a finding that he

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has sufficiently alleged “deliberate indifference” on the part of any named Defendant.

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Moreover, Plaintiff fails to indicate how any of the named Defendants failed to adequately treat

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his medical condition or whether he suffered any harm as a result of the alleged inadequate

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medical care.
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C.

Respondeat Superior claims

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Plaintiff names Sheriff Gore and Governor Jerry Brown as Defendants in this matter but

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fails to set forth any specific factual allegations with regard to these Defendants in the body of

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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

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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 Gore or Brown.

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D.

Access to Courts

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Plaintiff alleges that his right to access to the courts has been denied because jail officials

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have failed to provide him with adequate time in the law library. (See Compl. at 12-13.)

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Prisoners do “have a constitutional right to petition the government for redress of their

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grievances, which includes a reasonable right of access to the courts.” O’Keefe v. Van Boening,

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82 F.3d 322, 325 (9th Cir. 1996); accord Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995).

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In Bounds, 430 U.S. at 817, the Supreme Court held that “the fundamental constitutional right

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of access to the courts requires prison authorities to assist inmates in the preparation and filing

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of meaningful legal papers by providing prisoners with adequate law libraries or adequate
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assistance from persons who are trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977).

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To establish a violation of the right to access to the courts, however, a prisoner must allege facts

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sufficient to show that: (1) a nonfrivolous legal attack on his conviction, sentence, or conditions

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of confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a

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result. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An “actual injury” is defined as “actual

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prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing

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deadline or to present a claim.” Id. at 348; see also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir.

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1994); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); Keenan v. Hall, 83 F.3d 1083, 1093

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(9th Cir. 1996).

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Here, Plaintiff has failed to alleged any actions with any particularity that have precluded

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his pursuit of a non-frivolous direct or collateral attack upon either his criminal conviction or

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sentence or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to

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access to the courts protects only an inmate’s need and ability to “attack [his] sentence[], directly

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or collaterally, and ... to challenge the conditions of [his] confinement.”). In addition, Plaintiff

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must also describe the non-frivolous nature of the “underlying cause of action, whether

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anticipated or lost.” Christopher v. Harbury, 536 U.S. 403, 415 (2002).

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In short, Plaintiff has not alleged that “a complaint he prepared was dismissed,” or that

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he was “so stymied” by any individual defendant’s actions that “he was unable to even file a

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complaint,” direct appeal or petition for writ of habeas corpus that was not “frivolous.” Lewis,

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518 U.S. at 351; Christopher, 536 U.S. at 416 (“like any other element of an access claim[,] ...

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the predicate claim [must] be described well enough to apply the ‘nonfrivolous’ test and to show

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that the ‘arguable’ nature of the underlying claim is more than hope.”). Therefore, Plaintiff’s

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access to courts claims must be dismissed for failing to state a claim upon which section 1983

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relief can be granted. See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446.

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E.

Fourteenth Amendment

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Plaintiff also claims that the jail’s administrative grievance procedure violates his right

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to due process under the Fourteenth Amendment. (See Compl. at 10.) The Fourteenth

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Amendment provides that: “[n]o state shall ... deprive any person of life, liberty, or property,
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without due process of law.” U.S. CONST. amend. XIV, § 1. “The requirements of procedural

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due process apply only to the deprivation of interests encompassed by the Fourteenth

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Amendment’s protection of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569

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(1972). State statutes and prison regulations may grant prisoners liberty or property interests

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sufficient to invoke due process protection. Meachum v. Fano, 427 U.S. 215, 223-27 (1976).

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To state a 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) lack

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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 in

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an inmate grievance procedure arising directly from the Due Process Clause. See Ramirez v.

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Galaza, 334 F.3d 850, 869 (9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement

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to a specific prison grievance procedure”) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988) (finding that the due process clause of the Fourteenth Amendment creates “no legitimate

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claim of entitlement to a [prison] grievance procedure”)); accord Adams v. Rice, 40 F.3d 72, 75

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(4th Cir. 1994) (1995); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).

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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 prison

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regulations, Meachum, 427 U.S. at 223-27, due process protections are implicated only if

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Plaintiff alleges facts to show that Defendants: (1) restrained his freedom in a manner not

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expected from his sentence, and (2) “impose[d] atypical and significant hardship on [him] in

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relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995);

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Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997). Plaintiff pleads nothing to suggest how

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the allegedly inadequate review and consideration of his inmate grievances resulted in an

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“atypical” and “significant hardship.” Sandin, 515 U.S. at 483-84. Thus, to the extent Plaintiff

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challenges the procedural adequacy of inmate grievance procedures, his Complaint fails to state

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a due process claim.

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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 therefor, IT IS HEREBY ORDERED that:
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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 Watch Commander for George Bailey Detention Facility, or his designee, shall

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collect from Plaintiff’s prison trust account the $350 balance of the filing fee owed in this case by

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collecting monthly payments from the account in an amount equal to twenty percent (20%) of the

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preceding month’s income and forward payments to the Clerk of the Court each time the amount in the

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account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE

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CLEARLY IDENTIFIED BY THE NAME 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 Watch Commander,

George Bailey Detention Facility, 446 Alta Road, Suite 5300, San Diego, California 92158.

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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 from the

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

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

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to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants not named and all claims not re-

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alleged in the Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d

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565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended Complaint fails to state a claim upon which

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relief may be granted, it may be dismissed without further leave to amend and may hereafter be
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counted 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.

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

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IT IS SO ORDERED.

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DATED: August 28, 2012
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HON. IRMA E. GONZALEZ
United States District Judge

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