Roettgen v. Foston et al

Filing 7

ORDER: (1) Granting 6 Motion for Leave to Proceed in forma pauperis; (2) Dismissing Action Without Prejudice for Failing to State a Claim Pursuant to 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). Plaintiff is Granted forty-five (45) days to file a First Amended Complaint. The Secretary 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 t o 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); (Order electronically transmitted to Secretary of CDCR) (approved form § 1983 civil rights complaint mailed to Plaintiff). Signed by Judge Gonzalo P. Curiel on 9/23/2013. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN ROETTGEN,
CDCR #V-05142,

Civil No.
Plaintiff,

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PROCEED IN FORMA PAUPERIS,
IMPOSING NO INITIAL PARTIAL
FILING FEE AND GARNISHING
$350.00 BALANCE FROM INMATE’S
TRUST ACCOUNT; and

vs.

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ORDER:
(1) GRANTING MOTION TO

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D. FOSTON; R. BRIGGS; G. HERNANDEZ;
C. DAVIS; M.L. LEE; PICKET; I. BRAVO;
P. SMITH; MUECA; McDANIELS; J.L.
TOLBERT; C. RAMOS; R. DAVIS; D.
SMITH; L. HINKLE; J. MERCHANT;
E. GARZA; W.J. SULLIVAN; CAPT. T.
KABBAN-MILLER,

(2) DISMISSING ACTION

WITHOUT PREJUDICE FOR
FAILING TO STATE A
CLAIM PURSUANT TO
28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b)

Defendants.

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John Roettgen, (“Plaintiff”), a state prisoner currently incarcerated at the Richard J.

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Donovan Correctional Facility located in San Diego, California, and proceeding pro se, has

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submitted a civil rights Complaint pursuant to 28 U.S.C. § 1983. In addition, Plaintiff has filed

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a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No. 6].

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I.

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MOTION TO PROCEED IFP [ECF No. 6]

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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 party’s failure to prepay the entire fee only

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if that party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however,

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remain obligated to pay the entire fee in installments, regardless of whether their action is

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ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847

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(9th Cir. 2002).

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The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C.

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§ 1915(a)(1), and that he has attached 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. Plaintiff’s trust account statement indicates

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that he has insufficient funds from which to pay filing fees at this time. See 28 U.S.C.

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§ 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil

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action or appealing a civil action or criminal judgment for the reason that the prisoner has no

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assets and no means by which to pay the initial partial filing fee.”). Therefore, the Court

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GRANTS Plaintiff’s Motion to Proceed IFP [ECF No. 6] and assesses no initial partial filing

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

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

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Notwithstanding payment of any filing fee or portion thereof, the Prison Litigation

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Reform Act (“PLRA”) requires courts to review complaints filed by prisoners against officers

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or employees of governmental entities and dismiss those or any portion of those found frivolous,

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

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from a defendant immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez

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v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213

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F.3d 443, 446 (9th Cir. 2000) (§ 1915A).

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Prior to the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only
Lopez, 203 F.3d at 1126, 1130.

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frivolous and malicious claims.

However 28 U.S.C.

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§§ 1915(e)(2) and 1915A now mandate that the court reviewing a prisoner’s suit make and rule

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on its own motion to dismiss before directing that the complaint be served by the U.S. Marshal

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pursuant to FED. R. CIV. P. 4(c)(2). Id. at 1127 (“[S]ection 1915(e) not only permits, but requires

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a district court to dismiss an in forma pauperis complaint that fails to state a claim.”); Barren v.

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Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). The district court should grant leave to

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amend, however, unless it determines that “the pleading could not possibly be cured by the

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allegation of other facts” and if it appears “at all possible that the plaintiff can correct the

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defect.” Lopez, 203 F.3d at 1130-31 (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir.

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1995); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir. 1990)).

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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)”). However, while liberal

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construction is “particularly important in civil rights cases,” Ferdik v. Bonzelet, 963 F.2d 1258,

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1261 (9th Cir. 1992), the court may nevertheless not “supply essential elements of the claim that

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were not 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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As currently pleaded, the Court finds that Plaintiff’s Complaint fails to state a cognizable

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claim under 42 U.S.C. § 1983. Section 1983 imposes two essential proof requirements upon a

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claimant: (1) that a person acting under color of state law committed the conduct at issue, and

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(2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the

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Constitution or laws of the United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S.

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527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986);

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Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).

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A.

Rule 8

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As a preliminary matter, the Court finds that Plaintiff’s Complaint fails to comply with

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Rule 8.

Specifically, Rule 8 provides that in order to state a claim for relief in a pleading it

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must contain “a short and plain statement of the grounds for the court’s jurisdiction” and “a short

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and plain statement of the claim showing that the pleader is entitled to relief.” FED.R.CIV.P.

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8(a)(1) & (2).

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Defendants in which he unnecessarily sets forth legal standards and arguments that are best

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reserved for future motions should this action survive the screening process. If Plaintiff chooses

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to file an Amended Complaint, he need only set forth the causes of action he is pursing, the

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necessary factual allegations to support those causes of action and identify the Defendants he

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seeks to hold liable for each of the alleged constitutional violations.

Plaintiff has filed an eighty one (81) page Complaint against nineteen (19)

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B.

Surviving claims

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The Court does find that some of Plaintiff’s claims survive the sua sponte screening

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process. Specifically, Plaintiff’s Eighth Amendment excessive force claims against Defendants

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C. Davis and M. Lee and his First Amendment retaliation claims against Defendants P. Smith,

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Davis and Bravo. However, the Court finds that as to all the remaining claims, Plaintiff has

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failed to state a claim upon which relief could be granted for the reasons set forth below.

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Plaintiff will be given leave to file an Amended Complaint in which he can re-allege the causes

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of action that the Court found to survive the screening process or he may attempt to correct the

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deficiencies of pleading identified in this Order. Regardless, Plaintiff is once again cautioned

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that he must comply with Rule 8.

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C.

Retaliation Claims

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Plaintiff alleges, in very conclusory terms, that he was retaliated against by a number of

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Defendants. Prisoners have a fundamental “right[s] to file prison grievances,” Bruce v. Ylst, 351

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F.3d 1283, 1288 (9th Cir. 2003), and to “pursue civil rights litigation in the courts.” Schroeder

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v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995). “Without those bedrock constitutional

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guarantees, inmates would be left with no viable mechanism to remedy prison injustices.”

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Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). “And because purely retaliatory actions

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taken against a prisoner for having exercised those rights necessarily undermine those

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protections, such actions violate the Constitution quite apart from any underlying misconduct

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they are designed to shield.” Id. (citing Pratt v. Rowland, 65 F.3d 802, 806 & n.4 (9th Cir.

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1995)); see also Thomas v. Carpenter, 881 F.2d 828, 830 (9th Cir. 1989) (noting that because

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retaliation by prison officials may chill an inmate’s exercise of his legitimate First Amendment

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rights, such conduct is actionable even if it would not otherwise rise to the level of a

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constitutional violation). “[A] viable claim of First Amendment retaliation entails five basic

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elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

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because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.” Rhodes, 408 F.3d at 567-68 (footnote omitted) (citing Resnick v.

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Hayes, 213 F.3d 443, 449 (9th Cir. 2000); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir.

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1994)).

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Plaintiff’s allegations with regard to his specific claims of retaliation are very convoluted

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and often fail to connect any specific Defendant with claims of retaliation. In order to prevail

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on a retaliation claim, Plaintiff must show that his “protected conduct was a ‘substantial’ or

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‘motivating’ factor” behind the defendants conduct.” Soranno’s Gasco, Inc. v. Morgan, 874

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F.2d 1310, 1314 (1989). Here, there are no facts that show retaliatory actions on the part of

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many of the Defendants due to their specific knowledge of Plaintiff’s exercise of his First

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Amendment rights. In addition, Plaintiff’s Complaint lacks clarity as to which Defendants he

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is seeking to hold liable for alleged retaliatory actions. If Plaintiff chooses to file an amended

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pleading alleging retaliatory actions by Defendants other than Smith, Davis and Bravo, he must

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plead facts sufficient to support each element of a retaliatory claim against each Defendant. See

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff

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

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is liable for the misconduct alleged.”). Therefore, the Court must sua sponte dismiss Plaintiff’s

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retaliation claims for failing to state a claim upon which relief can be granted pursuant to 28

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U.S.C. § 1915(e)(2) and § 1915A(b).

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C.

Conspiracy claims

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Throughout Plaintiff’s Complaint, he alleges that Defendants acted in a conspiracy to

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violate his constitutional rights pursuant to 42 U.S.C. § 1985(3). “To state a cause of action

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under § 1985(3), a complaint must allege (1) a conspiracy, (2) to deprive any person or a class

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of persons the equal protection of the laws, or of equal privileges and immunities under the laws,

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(3) an act by one of the conspirators in furtherance of the conspiracy, and (4) a personal injury,

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property damage or a deprivation of any right or privilege of a citizen of the United States.”

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Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980); see also Griffin v. Breckenridge, 403

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U.S. 88, 102-03 (1971); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992).

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“[T]he language requiring intent to deprive equal protection . . . means that there must be some

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racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the

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conspirators’ action.” Griffin, 403 U.S. at 102; see also Sever, 978 F.2d at 1536.

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Here, Plaintiff fails to allege membership in a protected class and fails to allege that any

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Defendant acted with class-based animus, both of which are essential elements of a cause of

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action under 42 U.S.C. § 1985(3). See Griffin, 403 U.S. at 101-02; Schultz v. Sundberg, 759

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F.2d 714, 718 (9th Cir. 1985) (holding that conspiracy plaintiff must show membership in a

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judicially-designated suspect or quasi-suspect class); Portman v. County of Santa Clara, 995

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F.2d 898, 909 (9th Cir. 1993). Therefore, Plaintiff’s conspiracy claims must be dismissed for

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failing to state a claim upon which relief may be granted.

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D.

Fourteenth Amendment claims

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Plaintiff alleges that Defendants violated his right to due process under the Fourteenth

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Amendment when they found him guilty of “resisting staff resulting in the use of force.” (ECF

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No. 58 at 81.) “The requirements of procedural due process apply only to the deprivation of

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interests encompassed by the Fourteenth Amendment’s protection of liberty and property.”

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Board of Regents v. Roth, 408 U.S. 564, 569 (1972). State statutes and prison regulations may

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grant prisoners liberty interests sufficient to invoke due process protections. Meachum v. Fano,

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427 U.S. 215, 223-27 (1976).

However, the Supreme Court has significantly limited the

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instances in which due process can be invoked. Pursuant to Sandin v. Conner, 515 U.S. 472,

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483 (1995), a prisoner can show a liberty interest under the Due Process Clause of the

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Fourteenth Amendment only if he alleges a change in confinement that imposes an “atypical and

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significant hardship . . . in relation to the ordinary incidents of prison life.” Id. at 484 (citations

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omitted); Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997).

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In this case, Plaintiff has failed to establish a liberty interest protected by the Constitution

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because he has not alleged, as he must under Sandin, facts related to the conditions or

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consequences of his disciplinary hearing which show “the type of atypical, significant

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deprivation [that] might conceivably create a liberty interest.” Id. at 486. For example, in

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Sandin, the Supreme Court considered three factors in determining whether the plaintiff

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possessed a liberty interest in avoiding disciplinary segregation: (1) the disciplinary versus

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discretionary nature of the segregation; (2) the restricted conditions of the prisoner’s

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confinement and whether they amounted to a “major disruption in his environment” when

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compared to those shared by prisoners in the general population; and (3) the possibility of

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whether the prisoner’s sentence was lengthened by his restricted custody. Id. at 486-87.

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Therefore, to establish a due process violation, Plaintiff must first show the deprivation

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imposed an atypical and significant hardship on him in relation to the ordinary incidents of

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prison life. Sandin, 515 U.S. at 483-84. Plaintiff has failed to allege any facts from which the

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Court could find there were atypical and significant hardships imposed upon him as a result of

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the Defendants’ actions. Plaintiff must allege “a dramatic departure from the basic conditions”

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of his confinement that would give rise to a liberty interest before he can claim a violation of due

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process. Id. at 485; see also Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996), amended

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by 135 F.3d 1318 (9th Cir. 1998). He has not; therefore the Court finds that Plaintiff has failed

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to allege a liberty interest in remaining free of Ad-seg, and thus, has failed to state a due process

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claim. See May, 109 F.3d at 565; Hewitt, 459 U.S. at 466; Sandin, 515 U.S. at 486 (holding that

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placing an inmate in administrative segregation for thirty days “did not present the type of

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atypical, significant deprivation in which a state might conceivably create a liberty interest.”).

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Accordingly, the Court finds that a majority of Plaintiff’s Complaint fails to state a

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section 1983 claim upon which relief may be granted, and is therefore subject to dismissal

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pursuant to 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). The Court will provide Plaintiff with an

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opportunity to amend his pleading to either plead only those claims the Court found survive the

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sua sponte screening process or he may attempt to also cure the defects set forth above. Plaintiff

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is warned that if his amended complaint fails to address the deficiencies of pleading noted above

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and fails to comply with Rule 8, those claims found deficient may be dismissed with prejudice

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and without leave to amend.

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III.

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CONCLUSION AND ORDER

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Good cause appearing, IT IS HEREBY ORDERED:

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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. 6] is

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

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

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owed in this case by collecting monthly payments from the account in an amount equal to twenty

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percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court

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each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2).

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ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

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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 Beard,

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Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502,

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Sacramento, California 95814.

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IT IS FURTHER ORDERED that:

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4.

Plaintiff’s Complaint is DISMISSED without prejudice for failing to state a claim

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upon which relief could be granted. See 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). However,

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Plaintiff is GRANTED forty five (45) days leave from the date this Order is “Filed” in which

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to file a First Amended Complaint which sets forth only those claims that survive the sua sponte

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screening process or attempts to cure all the deficiencies of pleading noted above. Plaintiff’s

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Amended Complaint must be complete in itself without reference to the superseded pleading.

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See S. D.CAL. CIVLR. 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 (9th Cir.

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1987).

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5.

The Clerk of the Court is directed to mail a form civil rights Complaint to Plaintiff.

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DATED: September 23, 2013

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HON. GONZALO P. CURIEL
United States District Judge

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