Hopkins v. Paramo et al

Filing 3

ORDER (1) Granting 2 Motion for Leave to Proceed in forma pauperis; and (2) Dismissing Complaint for Failing to State a Claim Pursuant to to 28 U.S.C. § 1915(e)(2) and 1915A(b). 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 to 20% of the preceding month income credited to the account and forward payments to the Cle rk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). Plaintiff is Granted forty-five (45) days to file a First Amended Complaint. Signed by Judge Gonzalo P. Curiel on 6/27/2013. (Order electronically transmitted to Secretary of CDCR) (approved form § 1983 complaint mailed to Plaintiff) (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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RANDELL HOPKINS,
CDCR #V-97737,

Civil No.

Plaintiff,

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ORDER:
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS,
IMPOSING NO INITIAL PARTIAL
FILING FEE, GARNISHING $350.00
BALANCE FROM PRISONER’S
TRUST ACCOUNT [ECF No. 2]; and

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vs.

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

DANIEL PARAMO; K. SEIBEL;
R. OLSON; J. RAMIREZ,

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Defendants.

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

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Donovan Correctional Facility (“RJD”) located in San Diego, California and proceeding pro se,

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has submitted a civil action pursuant to 42 U.S.C. § 1983. Additionally, Plaintiff has filed a

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certified copy of his inmate trust account statement which the Court construes as his Motion to

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Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No. 2].

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I.

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MOTION TO PROCEED IFP [ECF No. 2]

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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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II.

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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 screening

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and order the sua sponte dismissal of any case it finds “frivolous, malicious, failing to state a

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claim upon which relief may be granted, or seeking monetary relief from a defendant immune

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from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir.

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2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v.

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Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not

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only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that

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fails to state a claim).

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Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte

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

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

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the IFP provisions of section 1915 make and rule on its own motion to dismiss before directing

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the U.S. Marshal to effect service pursuant to FED.R.CIV.P. 4(c)(3). See Calhoun, 254 F.3d at

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845; Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir.

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1997) (stating that sua sponte screening pursuant to § 1915 should occur “before service of

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process is made on the opposing parties”).

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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 v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren, 152 F.3d at 1194

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(noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”);

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Andrews, 398 F.3d at 1121. In addition, the Court has 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. 1988),

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which is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261

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(9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the

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court may not “supply essential elements of claims that were not initially pled.” Ivey v. Board

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of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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A.

1983 standard

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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’s first cause of action is titled “Freedom from Discrimination, Torture and

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Degrading Treatment (per) Exile.” (Compl. at 3.) The Court construes this to be an Eighth

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Amendment claim. Plaintiff alleges that on May 2, 2013, an “unwarranted anomaly occurred”

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which caused the deprivation of his constitutional rights. (Id.) Plaintiff’s allegations lack any

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specific factual content but it appears based on the exhibits attached to his Complaint that he is

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challenging the lack of sufficient television channels at RJD broadcasting in English. (Id., see

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also Ex. Inmate/Parolee Appeal dated May 5, 2013.)

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The Eighth Amendment, which prohibits “cruel and unusual punishments,” imposes a

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duty on prison officials to provide humane conditions of confinement and to take reasonable

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measures to guarantee the safety of the inmates. Helling v. McKinney, 509 U.S. 25, 31-33

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(1993). However, every injury suffered by an inmate does not necessarily translate into

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constitutional liability for prison officials. Osolinski v. Kane, 92 F.3d 934, 936-37 (9th Cir.

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1996); Rhodes v. Chapman, 452 U.S. 337, 349 (1981) (noting that the U.S. Constitution “does

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not mandate comfortable prisons.”).

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Thus, to assert an Eighth Amendment claim for deprivation of humane conditions of

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confinement a prisoner must satisfy two requirements: one objective and one subjective.

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Farmer v. Brennan, 511 U.S. 825, 834 (1994); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir.

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1994). Under the objective requirement, the plaintiff must allege facts sufficient to show that

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“a prison official’s acts or omissions . . . result[ed] in the denial of the ‘minimal civilized

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measure of life’s necessities.’” Farmer, 511 U.S. at 834 (quoting Rhodes, 452 U.S. at 347).

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This objective component is satisfied so long as the institution “furnishes sentenced prisoners

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with adequate food, clothing, shelter, sanitation, medical care, and personal safety.” Hoptowit

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v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Farmer, 511 U.S. at 534; Wright v. Rushen, 642

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F.2d 1129, 1132-33 (9th Cir. 1981). The subjective requirement, relating to the defendant’s state

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of mind, requires that the plaintiff allege facts sufficient to show “deliberate indifference.”

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Allen, 48 F.3d at 1087. “Deliberate indifference” exists when a prison official “knows of and

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disregards an excessive risk to inmate health and safety; the official must be both aware of facts

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from which the inference could be drawn that a substantial risk of serious harm exists, and he

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must also draw the inference.” Farmer, 511 U.S. at 837.

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Here, the lack of sufficient television channels does not rise to the level of deprivation

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of “food, clothing, shelter, sanitation, medical care or personal safety.” Hoptowit, 682 F.2d at

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1246. Accordingly, Plaintiff’s Eighth Amendment claims are dismissed for failing to state a

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claim upon which § 1983 relief can be granted.

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C.

Fourteenth Amendment Equal Protection

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In addition, to the extent Plaintiff suggests generally that he is being “discriminated”

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against or being treated differently than other prisoners, the “Equal Protection Clause of the

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Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction

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the equal protection of the laws,’ which is essentially a direction that all persons similarly

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situated should be treated alike.” City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,

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439 (1985); Shaw v. Reno, 509 U.S. 630 (1993). “The guarantee of equal protection [under the

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Fifth Amendment] is not a source of substantive rights or liberties, but rather a right to be free

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from invidious discrimination in statutory classifications and other governmental activity.”

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Harris v. McRae, 448 U.S. 297, 322 (1980) (citations omitted). However, like claims of

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conspiracy, conclusory allegations of discrimination are insufficient to state a claim, unless

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Plaintiff alleges facts which may prove invidious discriminatory intent. Village of Arlington

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Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977). Therefore, to

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allege an equal protection violation, Plaintiff must plead facts to show that each Defendant

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“acted in a discriminatory manner and that the discrimination was intentional.” FDIC. v.

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Henderson, 940 F.2d 465, 471 (9th Cir. 1991) (citations omitted); Reese v. Jefferson School Dist.

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No. 14J, 208 F.3d 736, 740 (9th Cir. 2000). “‘Discriminatory purpose’ ... implies more than

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intent as volition or intent as awareness of consequences. It implies that the decision maker ...

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selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in

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spite of,’ its adverse effects upon an identifiable group.”

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Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). “[P]urely conclusory allegations of alleged

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discrimination, with no concrete, relevant particulars,” are simply insufficient. Forsberg v. Pac.

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Northwest Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir. 1988). Here, while Plaintiff has failed

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to allege that he is a member of a protected class and has failed to allege any “concrete, relevant”

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facts to show that he was treated differently with a “discriminatory purpose.” City of Cleburne,

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473 U.S. at 439; Forsberg, 840 F.3d at 1419; Feeney, 442 U.S. at 279. Thus, Plaintiff’s equal

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protection allegations fail to state a claim upon which relief can be granted.

Personnel Administrator of

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D.

Respondeat Superior

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Finally, to the extent Plaintiff seek to sue Defendants based merely on their supervisory

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positions, such allegations are insufficient to state a claim against these Defendants because

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there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d

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1433, 1437-38 (9th Cir. 1993). Instead, “[t]he inquiry into causation must be individualized and

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focus on the duties and responsibilities of each individual defendant whose acts or omissions are

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alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th

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Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). In order to avoid the

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respondeat superior bar, Plaintiff must allege personal acts by each individual Defendant which

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have a direct causal connection to the constitutional violation at issue. See Sanders v. Kennedy,

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794 F.2d 478, 483 (9th Cir. 1986); 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 any named Defendant.

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Therefore, the Court finds that Plaintiff’s Complaint must be DISMISSED without

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prejudice for failing to state a claim upon which relief can be granted. See 28 U.S.C.

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§§ 1915(e)(2) and 1915A(b)(1).

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III.

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CONCLUSION AND ORDER

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Good cause appearing, IT IS HEREBY ORDERED that:

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1.

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is GRANTED.

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2.

Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2]

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.
3.

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The Clerk of the Court is directed to serve a copy of this Order on Jeffrey Beard,

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Ph.D., Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite

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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 U.S.C.

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§§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave

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

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the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete in

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itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants

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not named and all claims not re-alleged in the Amended Complaint will be deemed to have been

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waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended

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Complaint fails to state a claim upon which relief may be granted, it may be dismissed without

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further leave to amend and may hereafter be counted as a “strike” under 28 U.S.C. § 1915(g).

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

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5.

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form complaint.

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The Clerk of Court is directed to mail Plaintiff a Court approved civil rights § 1983

IT IS SO ORDERED.
DATED: June 27, 2013

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HON. GONZALO P. CURIEL
United States District Judge

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