Robinson v. Harris

Filing 5

ORDER 1) Granting Plaintiff's Motion to Proceed in Forma Pauperis, Imposing not Initial Partial Filing Fees, Garnishing $350.00 Balance from Prisoner's Trust Account; and 2) DISMISSING COMPLAINT for Failure to State a Claim. The Court GRANTS Plaintiff 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 of pleading noted above. Signed by Judge Marilyn L. Huff on 2/25/2013.(All non-registered users and Jeffrey A. Beard, Ph.D., Secretary, California Department of Corrections and Rehabilitation served via U.S. Mail Service)(sjt)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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CORVETTE B. ROBINSON
CDCR #J-81217

Civil No.
Plaintiff,

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ORDER:
(1) GRANTING PLAINTIFF’S
MOTION TO PROCEED IN
FORMA PAUPERIS, IMPOSING
NO INITIAL PARTIAL FILING
FEE, GARNISHING $350.00
BALANCE FROM PRISONER’S
TRUST ACCOUNT; AND

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vs.

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M. L. HARRIS,

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

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Defendant.

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Corvette B. Robinson (“Plaintiff”), a state inmate currently incarcerated at the

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Richard J. Donovan Correctional Facility located in San Diego, California, and

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proceeding pro se, has submitted a civil action pursuant to 42 U.S.C. § 1983. Plaintiff

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has also filed a certified copy of his inmate trust account statement which the Court

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liberally construes as Plaintiff’s Motion to Proceed In Forma Pauperis (“IFP”) pursuant

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to 28 U.S.C. § 1915(a).

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I. Motion to Proceed IFP

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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

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$350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to
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prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28

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U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

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

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installments, regardless of whether their action is ultimately dismissed. See 28 U.S.C.

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§ 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act

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(“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of the

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trust fund account statement (or institutional equivalent) for the prisoner for the six-

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month period immediately preceding the filing of the complaint.”

28 U.S.C. §

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1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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trust account statement, the Court must assess an initial payment of 20% of (a) the

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average monthly deposits in the account for the past six months, or (b) the average

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monthly balance in the account for the past six months, whichever is greater, unless the

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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

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20% of the preceding month’s income, in any month in which the prisoner’s account

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exceeds $10, and forward those payments to the Court until the entire filing fee is paid.

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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

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at this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner

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be prohibited from bringing a civil action or appealing a civil action or criminal judgment

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for the reason that the prisoner has no assets and no means by which to pay the initial

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partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as

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a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure

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to pay . . . due to the lack of funds available to him when payment is ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP and assesses no initial

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partial filing fee per 28 U.S.C. § 1915(b)(1). The entire $350 balance of the filing fees

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mandated shall be collected and forwarded to the Clerk of the Court pursuant to the
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installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

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II. 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

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screening and order the sua sponte dismissal of any case it finds “frivolous, malicious,

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failing to state a claim upon which relief may be granted, or seeking monetary relief from

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a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254

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F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not

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limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte

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dismiss an in 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

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sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. As

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amended, 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed

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pursuant to the IFP provisions of section 1915 make and rule on its own motion to

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dismiss before directing the U.S. Marshal to effect service pursuant to Federal Rule of

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Civil Procedure 4(c)(3). See Calhoun, 254 F.3d at 845; Lopez, 203 F.3d at 1127; see also

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McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997) (stating that sua sponte

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screening pursuant to § 1915 should occur “before service of process is made on the

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opposing parties”).

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To survive a motion to dismiss, a complaint “must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

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(2007)); Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) “parallels the language of

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Federal Rule of Civil Procedure 12(b)(6)”). “A claim has facial plausibility when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”
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Iqbal, 556 U.S. at 678. District courts have a duty to liberally construe a pro se’s

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pleadings, see Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir.

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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

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(9th Cir. 1982).

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Here, Plaintiff alleges that Defendant Harris was the correctional officer assigned

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to the food serving line on November 22, 2011. (See Compl. at 3.) On that day, Plaintiff

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alleges that Defendant Harris accused him of trying to get a second meal and cursed at

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Plaintiff. (Id.) Plaintiff alleges that Defendant Harris then grabbed a handful of “hot

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potato tots” and “threw them through the food service window and hit [Plaintiff] in the

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face and eyes with this ‘hot food substance.’” (Id.) Plaintiff alleges that he suffered

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facial burns and an eye injury. (Id.)

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Any physical application of force against a person in custody, whether it be

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through brute strength, chemical or other weaponry, or mechanical restraint, may not be

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excessive. See Whitley v. Albers, 475 U.S. 312 (1986) (prison shooting); Hudson v.

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McMillian, 503 U.S. 1 (1992) (prison beating); LeMaire v. Maass, 12 F.3d 1444, 1450-

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53, 1457, 1460 (9th Cir. 1993) (prison’s use of in-shower and in-cell leg and waist

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restraints). “That is not to say that every malevolent touch by a prison guard gives rise

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to a federal cause of action.” Hudson, 503 U.S. at 10 (citing Johnson v. Glick, 481 F.2d

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1028, 1033 (2d Cir. 1973) (“Not every push or shove, even if it may later seem

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unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional

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rights”). In order to violate the Eighth Amendment, the Defendant must use force which

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is “unnecessary” and “wanton.” Whitley, 475 U.S. at 319. “It is obduracy and

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wantonness, not inadvertence or error in good faith, that characterize the conduct

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prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs

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in connection with establishing conditions of confinement, supplying medical needs, or
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restoring official control over a tumultuous cellblock.” Id.

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Thus, a constitutional violation can only be established if force was used

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“maliciously and sadistically for the purpose of causing harm.” Id.; see also Wilson v.

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Seiter, 501 U.S. 294, 298 (1991) (claims that an official has inflicted cruel and unusual

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punishment contain both an objective component as well as a subjective “inquiry into the

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prison official’s state of mind”). The Supreme Court has also clearly stated that the

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Eighth Amendment’s prohibition of cruel and unusual punishment necessarily excludes

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from constitutional recognition de minimis uses of physical force, provided that the use

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of force is not the sort “repugnant to the conscience of mankind.” Hudson, 503 U.S. at

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10. A use of force is de minimis if it results in no discernible injury. See Wilkins v.

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Gaddy, 559 U.S. 34, 130 S. Ct. 1175, 1178 (2010).

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Here, Plaintiff’s claims fail to rise to the level of an Eighth Amendment violation.

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Plaintiff’s allegations are insufficient to show that Defendant’s alleged use of force was

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used “maliciously and sadistically for the purpose of causing harm.” Whitley, 475 U.S.

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at 319. Further, Plaintiff’s vague allegations of facial burns and eye injuries caused by

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“hot potato tots” are insufficient to support a reasonable inference that Plaintiff suffered

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a discernible injury, Iqbal, 556 U.S. at 678, nor is throwing a handful of food “repugnant

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to the conscience of mankind.” Hudson, 530 U.S. at 10. Accordingly, Plaintiff’s

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Complaint must be dismissed for failing to state a claim upon which relief may be

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granted.
III. Conclusion and Order

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Good cause appearing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) is

GRANTED.
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The Secretary of California Department of Corrections and Rehabilitation,

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

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filing fee owed in this case by collecting monthly payments from the account in an

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amount equal to twenty percent (20%) of the preceding month’s income and forward
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payments to the Clerk of the Court each time the amount in the account exceeds $10 in

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accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY

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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 Jeffrey

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A. Beard, Ph.D., Secretary, California Department of Corrections and Rehabilitation,

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1515 S Street, 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

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U.S.C. §§ 1915(e)(2)(b) and 1915A(b). The Court GRANTS Plaintiff forty five (45)

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days leave from the date this Order is “Filed” in which to file a First Amended Complaint

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which cures all the deficiencies of pleading noted above. Plaintiff’s Amended Complaint

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must be complete in itself without reference to the superseded pleading. See S.D. Cal.

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Civ. L. R. 15.1. Defendants not named and all claims not re-alleged in the Amended

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Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 565, 567

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

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which relief may be granted, it may be dismissed without further leave to amend and

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may hereafter be counted as a “strike” under 28 U.S.C. § 1915(g). See McHenry v.

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Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).

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DATED:

IT IS SO ORDERED.
February 25, 2013

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HON. MARILYN L. HUFF
United States District Judge

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