Rideau v. Janda et al

Filing 3

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GREGORY S. RIDEAU, JR., 12 Plaintiff, 13 13cv0609 MMA (KSC) (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS 14 vs. [ECF No. 2]; 15 16 Civil No. ORDER: AND GERALD J. JANDA, et al., 17 18 Defendants. (2) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) 19 20 21 Gregory Rideau (“Plaintiff”), a state inmate currently housed at the California State 22 Prison - Los Angeles County, and proceeding pro se, has filed this civil action pursuant 23 to 42 U.S.C. § 1983. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. 24 § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 25 to 28 U.S.C. § 1915(a) [ECF No. 2]. 26 /// 27 /// 28 /// -1- 13cv0609 MMA (KSC) 1 I. 2 MOTION TO PROCEED IFP 3 All parties instituting any civil action, suit or proceeding in a district court of the 4 United States, except an application for writ of habeas corpus, must pay a filing fee of 5 $350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 6 prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 7 U.S.C. § 1915(a). As defined by the PLRA, a “prisoner” is “any person incarcerated or 8 detained in any facility who is accused of, convicted of, sentenced for, or adjudicated 9 delinquent for, violations of criminal law or the terms and conditions of parole, probation, 10 pretrial release, or diversionary program.” 28 U.S.C. § 1915(h). Because Plaintiff is 11 currently incarcerated, he is a prisoner as defined by 28 U.S.C. § 1915(h), and therefore 12 subject to the PLRA’s requirements and limitations. 13 Plaintiff has submitted a certified copy of his trust account statement pursuant to 14 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. The Court GRANTS Plaintiff’s 15 Motion to Proceed IFP (ECF No. 2), and assesses no initial partial filing fee per 28 16 U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fees mandated shall 17 be collected and forwarded to the Clerk of the Court pursuant to the installment payment 18 provisions set forth in 28 U.S.C. § 1915(b)(1). 19 II. 20 SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 21 The PLRA also obligates the Court to review complaints filed by all persons 22 proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained in any 23 facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of 24 criminal law or the terms or conditions of parole, probation, pretrial release, or 25 diversionary program,” “as soon as practicable after docketing.” See 28 U.S.C. §§ 26 1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court must sua 27 sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail 28 -2- 13cv0609 MMA (KSC) 1 to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. 2 §§ 1915(e)(2)(B) and 1915A. 3 “[W]hen determining whether a complaint states a claim, a court must accept as 4 true all allegations of material fact and must construe those facts in the light most 5 favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also 6 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) 7 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, courts 8 “have an obligation where the petitioner is pro se, particularly in civil rights cases, to 9 construe the pleadings liberally and to afford the petitioner the benefit of any doubt.” 10 Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 11 F.2d 1026, 1027 n.1 (9th Cir. 1985)). The court may not, however, “supply essential 12 elements of claims that were not initially pled.” Ivey v. Board of Regents of the 13 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and conclusory 14 allegations of official participation in civil rights violations are not sufficient to withstand 15 a motion to dismiss.” Id. 16 Here, Plaintiff claims that his constitutional rights were violated when prison 17 officials at Centinela State Prison applied funds that Plaintiff received from a settlement 18 to the restitution amount he owed. Plaintiff seeks recovery of these funds. (See Compl. 19 at 11.) However, where a Plaintiff alleges the deprivation of a liberty or property interest 20 caused by the unauthorized negligent or intentional action of an official, the Plaintiff 21 cannot state a constitutional claim where the state provides an adequate post-deprivation 22 remedy. See Zinermon v. Burch, 494 U.S. 113, 129-32 (1990); Hudson v. Palmer, 468 23 U.S. 517, 533 (1984). The California Tort Claims Act (“CTCA”) provides an adequate 24 post-deprivation state remedy for the random and unauthorized taking of property. 25 Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). Thus, Plaintiff has an adequate 26 state post-deprivation remedy and his claims relating to the loss of his property are not 27 cognizable in this § 1983 action, and must be dismissed pursuant to 28 U.S.C. 28 §§ 1915(e)(2). -3- 13cv0609 MMA (KSC) 1 Accordingly, the Court must DISMISS Plaintiff’s Complaint for the reason set 2 forth above but will provide Plaintiff with the opportunity to amend his Complaint to 3 correct the deficiencies of pleading identified by the Court. 4 III. 5 CONCLUSION AND ORDER 6 Good cause appearing therefor, IT IS HEREBY ORDERED that: 7 1. 8 9 Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2) is GRANTED. 2. The Secretary of California Department of Corrections and Rehabilitation, 10 or his designee, shall collect from Plaintiff’s prison trust account the $350 balance of the 11 filing fee owed in this case by collecting monthly payments from the account in an 12 amount equal to twenty percent (20%) of the preceding month’s income and forward 13 payments to the Clerk of the Court each time the amount in the account exceeds $10 in 14 accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY 15 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 16 3. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey 17 Beard, Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, 18 Suite 502, Sacramento, California 95814. 19 IT IS FURTHER ORDERED that: 20 4. Plaintiff’s Complaint is DISMISSED for failing to state a claim upon which 21 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). However, 22 Plaintiff is GRANTED forty five (45) days leave from the date this Order is “Filed” in 23 which to file a First Amended Complaint which cures all the deficiencies of pleading 24 noted above. Plaintiff’s Amended Complaint must be complete in itself without 25 reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants not 26 named and all claims not re-alleged in the Amended Complaint will be deemed to have 27 been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if 28 Plaintiff’s Amended Complaint fails to state a claim upon which relief may be granted, -4- 13cv0609 MMA (KSC) 1 it may be dismissed without further leave to amend and may hereafter be counted as 2 a “strike” under 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th 3 Cir. 1996). 4 5. 5 IT IS SO ORDERED. 6 7 8 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 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- 13cv0609 MMA (KSC)

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