Rideau v. Janda et al
Filing
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ORDER: Granting 2 Motion for Leave to Proceed in forma pauperis; and Sua Sponte Dismissing Complaint for Failing to State a Claim Pursuant to 28 USC 1915(e)(2). It is hereby ordered that Plaintiff's Motion to Proceed IFP is Granted. The Secr etary 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). It is further ordered that Plaintiff's Complaint is dismissed for failing to state a claim upon which relief may be granted. Plaintiff is granted 45 days leave from the date this Order is "Filed" in which to file a First Amended Complaint. Signed by Judge Michael M. Anello on 7/9/2013. (Order electronically transmitted to Jeffrey Beard, Secretary of CDCR) (1983 Form Mailed to Plaintiff) (All non-registered users served via U.S. Mail Service)(leh)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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GREGORY S. RIDEAU, JR.,
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Plaintiff,
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(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
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vs.
[ECF No. 2];
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Civil No.
ORDER:
AND
GERALD J. JANDA, et al.,
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Defendants.
(2) SUA SPONTE DISMISSING
COMPLAINT FOR FAILING TO
STATE A CLAIM PURSUANT TO
28 U.S.C. § 1915(e)(2)
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Gregory Rideau (“Plaintiff”), a state inmate currently housed at the California State
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Prison - Los Angeles County, and proceeding pro se, has filed this civil action pursuant
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to 42 U.S.C. § 1983. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C.
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§ 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant
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to 28 U.S.C. § 1915(a) [ECF No. 2].
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///
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///
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///
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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
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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). As defined by the PLRA, a “prisoner” is “any person incarcerated or
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detained in any facility who is accused of, convicted of, sentenced for, or adjudicated
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delinquent for, violations of criminal law or the terms and conditions of parole, probation,
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pretrial release, or diversionary program.” 28 U.S.C. § 1915(h). Because Plaintiff is
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currently incarcerated, he is a prisoner as defined by 28 U.S.C. § 1915(h), and therefore
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subject to the PLRA’s requirements and limitations.
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Plaintiff has submitted a certified copy of his trust account statement pursuant to
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28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. The Court GRANTS Plaintiff’s
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Motion to Proceed IFP (ECF No. 2), and assesses no initial partial filing fee per 28
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U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fees mandated shall
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be collected and forwarded to the Clerk of the Court pursuant to the installment payment
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provisions set forth in 28 U.S.C. § 1915(b)(1).
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II.
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SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)
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The PLRA also obligates the Court to review complaints filed by all persons
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proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained in any
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facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of
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criminal law or the terms or conditions of parole, probation, pretrial release, or
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diversionary program,” “as soon as practicable after docketing.” See 28 U.S.C. §§
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1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court must sua
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sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail
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to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C.
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§§ 1915(e)(2)(B) and 1915A.
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“[W]hen determining whether a complaint states a claim, a court must accept as
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true all allegations of material fact and must construe those facts in the light most
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favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also
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Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2)
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“parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, courts
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“have an obligation where the petitioner is pro se, particularly in civil rights cases, to
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construe the pleadings liberally and to afford the petitioner the benefit of any doubt.”
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Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773
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F.2d 1026, 1027 n.1 (9th Cir. 1985)). The court may not, however, “supply essential
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elements of claims that were not initially pled.” Ivey v. Board of Regents of the
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University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and conclusory
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allegations of official participation in civil rights violations are not sufficient to withstand
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a motion to dismiss.” Id.
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Here, Plaintiff claims that his constitutional rights were violated when prison
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officials at Centinela State Prison applied funds that Plaintiff received from a settlement
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to the restitution amount he owed. Plaintiff seeks recovery of these funds. (See Compl.
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at 11.) However, where a Plaintiff alleges the deprivation of a liberty or property interest
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caused by the unauthorized negligent or intentional action of an official, the Plaintiff
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cannot state a constitutional claim where the state provides an adequate post-deprivation
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remedy. See Zinermon v. Burch, 494 U.S. 113, 129-32 (1990); Hudson v. Palmer, 468
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U.S. 517, 533 (1984). The California Tort Claims Act (“CTCA”) provides an adequate
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post-deprivation state remedy for the random and unauthorized taking of property.
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Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). Thus, Plaintiff has an adequate
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state post-deprivation remedy and his claims relating to the loss of his property are not
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cognizable in this § 1983 action, and must be dismissed pursuant to 28 U.S.C.
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§§ 1915(e)(2).
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Accordingly, the Court must DISMISS Plaintiff’s Complaint for the reason set
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forth above but will provide Plaintiff with the opportunity to amend his Complaint to
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correct the deficiencies of pleading identified by the Court.
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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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1.
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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 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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Beard, 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 for failing to state a claim upon which
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relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). However,
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Plaintiff is GRANTED forty five (45) days leave from the date this Order is “Filed” in
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which to file a First Amended Complaint which cures all the deficiencies of pleading
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noted above. Plaintiff’s Amended Complaint must be complete in itself without
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reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants not
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named and all claims not re-alleged in the Amended Complaint will be deemed to have
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been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if
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Plaintiff’s Amended Complaint fails to state a claim upon which relief may be granted,
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it may be dismissed without further leave to amend and may hereafter be counted as
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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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IT IS SO ORDERED.
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The Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff.
DATED: July 9, 2013
Hon. Michael M. Anello
United States District Judge
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