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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 11 12 RANDELL HOPKINS, CDCR #V-97737, Civil No. Plaintiff, 13 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 14 15 vs. 16 17 18 (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, 19 20 13cv1153 GPC (PCL) Defendants. 21 22 23 Randell Hopkins (“Plaintiff”), a state prisoner currently incarcerated at the Richard J. 24 Donovan Correctional Facility (“RJD”) located in San Diego, California and proceeding pro se, 25 has submitted a civil action pursuant to 42 U.S.C. § 1983. Additionally, Plaintiff has filed a 26 certified copy of his inmate trust account statement which the Court construes as his Motion to 27 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No. 2]. 28 /// I:\Chambers Curiel\Civil - Odd\13cv1153-grt IFP & dsm.wpd, 62713 1 13cv1153 GPC (PCL) 1 I. 2 MOTION TO PROCEED IFP [ECF No. 2] 3 All parties instituting any civil action, suit or proceeding in a district court of the United 4 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 5 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee 6 only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 7 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to 8 proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their 9 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 10 844, 847 (9th Cir. 2002). 11 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a 12 prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account 13 statement (or institutional equivalent) for the prisoner for the six-month period immediately 14 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 15 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 16 payment of 20% of (a) the average monthly deposits in the account for the past six months, or 17 (b) the average monthly balance in the account for the past six months, whichever is greater, 18 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 19 institution having custody of the prisoner must collect subsequent payments, assessed at 20% 20 of the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and 21 forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 22 § 1915(b)(2). 23 The Court finds that Plaintiff has no available funds from which to pay filing fees at this 24 time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited 25 from bringing a civil action or appealing a civil action or criminal judgment for the reason that 26 the prisoner has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 27 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 28 dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds I:\Chambers Curiel\Civil - Odd\13cv1153-grt IFP & dsm.wpd, 62713 2 13cv1153 GPC (PCL) 1 available to him when payment is ordered.”). Therefore, the Court GRANTS Plaintiff’s Motion 2 to Proceed IFP [ECF No. 2] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). 3 However, the entire $350 balance of the filing fees mandated shall be collected and forwarded 4 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 5 § 1915(b)(1). 6 II. 7 INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1) 8 Notwithstanding IFP status or the payment of any partial filing fees, the Court must 9 subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening 10 and order the sua sponte dismissal of any case it finds “frivolous, malicious, failing to state a 11 claim upon which relief may be granted, or seeking monetary relief from a defendant immune 12 from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 13 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. 14 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not 15 only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that 16 fails to state a claim). 17 Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte 18 dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as 19 amended, 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to 20 the IFP provisions of section 1915 make and rule on its own motion to dismiss before directing 21 the U.S. Marshal to effect service pursuant to FED.R.CIV.P. 4(c)(3). See Calhoun, 254 F.3d at 22 845; Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 23 1997) (stating that sua sponte screening pursuant to § 1915 should occur “before service of 24 process is made on the opposing parties”). 25 “[W]hen determining whether a complaint states a claim, a court must accept as true all 26 allegations of material fact and must construe those facts in the light most favorable to the 27 plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren, 152 F.3d at 1194 28 (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”); I:\Chambers Curiel\Civil - Odd\13cv1153-grt IFP & dsm.wpd, 62713 3 13cv1153 GPC (PCL) 1 Andrews, 398 F.3d at 1121. In addition, the Court has a duty to liberally construe a pro se’s 2 pleadings, see Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988), 3 which is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 4 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the 5 court may not “supply essential elements of claims that were not initially pled.” Ivey v. Board 6 of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 7 A. 1983 standard 8 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person 9 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived 10 the claimant of some right, privilege, or immunity protected by the Constitution or laws of the 11 United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122 12 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). 13 B. Eighth Amendment claims 14 Plaintiff’s first cause of action is titled “Freedom from Discrimination, Torture and 15 Degrading Treatment (per) Exile.” (Compl. at 3.) The Court construes this to be an Eighth 16 Amendment claim. Plaintiff alleges that on May 2, 2013, an “unwarranted anomaly occurred” 17 which caused the deprivation of his constitutional rights. (Id.) Plaintiff’s allegations lack any 18 specific factual content but it appears based on the exhibits attached to his Complaint that he is 19 challenging the lack of sufficient television channels at RJD broadcasting in English. (Id., see 20 also Ex. Inmate/Parolee Appeal dated May 5, 2013.) 21 The Eighth Amendment, which prohibits “cruel and unusual punishments,” imposes a 22 duty on prison officials to provide humane conditions of confinement and to take reasonable 23 measures to guarantee the safety of the inmates. Helling v. McKinney, 509 U.S. 25, 31-33 24 (1993). However, every injury suffered by an inmate does not necessarily translate into 25 constitutional liability for prison officials. Osolinski v. Kane, 92 F.3d 934, 936-37 (9th Cir. 26 1996); Rhodes v. Chapman, 452 U.S. 337, 349 (1981) (noting that the U.S. Constitution “does 27 not mandate comfortable prisons.”). 28 /// I:\Chambers Curiel\Civil - Odd\13cv1153-grt IFP & dsm.wpd, 62713 4 13cv1153 GPC (PCL) 1 Thus, to assert an Eighth Amendment claim for deprivation of humane conditions of 2 confinement a prisoner must satisfy two requirements: one objective and one subjective. 3 Farmer v. Brennan, 511 U.S. 825, 834 (1994); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 4 1994). Under the objective requirement, the plaintiff must allege facts sufficient to show that 5 “a prison official’s acts or omissions . . . result[ed] in the denial of the ‘minimal civilized 6 measure of life’s necessities.’” Farmer, 511 U.S. at 834 (quoting Rhodes, 452 U.S. at 347). 7 This objective component is satisfied so long as the institution “furnishes sentenced prisoners 8 with adequate food, clothing, shelter, sanitation, medical care, and personal safety.” Hoptowit 9 v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Farmer, 511 U.S. at 534; Wright v. Rushen, 642 10 F.2d 1129, 1132-33 (9th Cir. 1981). The subjective requirement, relating to the defendant’s state 11 of mind, requires that the plaintiff allege facts sufficient to show “deliberate indifference.” 12 Allen, 48 F.3d at 1087. “Deliberate indifference” exists when a prison official “knows of and 13 disregards an excessive risk to inmate health and safety; the official must be both aware of facts 14 from which the inference could be drawn that a substantial risk of serious harm exists, and he 15 must also draw the inference.” Farmer, 511 U.S. at 837. 16 Here, the lack of sufficient television channels does not rise to the level of deprivation 17 of “food, clothing, shelter, sanitation, medical care or personal safety.” Hoptowit, 682 F.2d at 18 1246. Accordingly, Plaintiff’s Eighth Amendment claims are dismissed for failing to state a 19 claim upon which § 1983 relief can be granted. 20 C. Fourteenth Amendment Equal Protection 21 In addition, to the extent Plaintiff suggests generally that he is being “discriminated” 22 against or being treated differently than other prisoners, the “Equal Protection Clause of the 23 Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction 24 the equal protection of the laws,’ which is essentially a direction that all persons similarly 25 situated should be treated alike.” City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 26 439 (1985); Shaw v. Reno, 509 U.S. 630 (1993). “The guarantee of equal protection [under the 27 Fifth Amendment] is not a source of substantive rights or liberties, but rather a right to be free 28 from invidious discrimination in statutory classifications and other governmental activity.” I:\Chambers Curiel\Civil - Odd\13cv1153-grt IFP & dsm.wpd, 62713 5 13cv1153 GPC (PCL) 1 Harris v. McRae, 448 U.S. 297, 322 (1980) (citations omitted). However, like claims of 2 conspiracy, conclusory allegations of discrimination are insufficient to state a claim, unless 3 Plaintiff alleges facts which may prove invidious discriminatory intent. Village of Arlington 4 Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977). Therefore, to 5 allege an equal protection violation, Plaintiff must plead facts to show that each Defendant 6 “acted in a discriminatory manner and that the discrimination was intentional.” FDIC. v. 7 Henderson, 940 F.2d 465, 471 (9th Cir. 1991) (citations omitted); Reese v. Jefferson School Dist. 8 No. 14J, 208 F.3d 736, 740 (9th Cir. 2000). “‘Discriminatory purpose’ ... implies more than 9 intent as volition or intent as awareness of consequences. It implies that the decision maker ... 10 selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in 11 spite of,’ its adverse effects upon an identifiable group.” 12 Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). “[P]urely conclusory allegations of alleged 13 discrimination, with no concrete, relevant particulars,” are simply insufficient. Forsberg v. Pac. 14 Northwest Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir. 1988). Here, while Plaintiff has failed 15 to allege that he is a member of a protected class and has failed to allege any “concrete, relevant” 16 facts to show that he was treated differently with a “discriminatory purpose.” City of Cleburne, 17 473 U.S. at 439; Forsberg, 840 F.3d at 1419; Feeney, 442 U.S. at 279. Thus, Plaintiff’s equal 18 protection allegations fail to state a claim upon which relief can be granted. Personnel Administrator of 19 D. Respondeat Superior 20 Finally, to the extent Plaintiff seek to sue Defendants based merely on their supervisory 21 positions, such allegations are insufficient to state a claim against these Defendants because 22 there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 23 1433, 1437-38 (9th Cir. 1993). Instead, “[t]he inquiry into causation must be individualized and 24 focus on the duties and responsibilities of each individual defendant whose acts or omissions are 25 alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th 26 Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). In order to avoid the 27 respondeat superior bar, Plaintiff must allege personal acts by each individual Defendant which 28 have a direct causal connection to the constitutional violation at issue. See Sanders v. Kennedy, I:\Chambers Curiel\Civil - Odd\13cv1153-grt IFP & dsm.wpd, 62713 6 13cv1153 GPC (PCL) 1 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 2 Supervisory prison officials may only be held liable for the allegedly unconstitutional 3 violations of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what 4 extent they personally participated in or directed a subordinate’s actions, and (2) in either acting 5 or failing to act, they were an actual and proximate cause of the deprivation of Plaintiff’s 6 constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, 7 however, Plaintiff’s Complaint fails to set forth facts which might be liberally construed to 8 support an individualized constitutional claim against any named Defendant. 9 Therefore, the Court finds that Plaintiff’s Complaint must be DISMISSED without 10 prejudice for failing to state a claim upon which relief can be granted. See 28 U.S.C. 11 §§ 1915(e)(2) and 1915A(b)(1). 12 III. 13 CONCLUSION AND ORDER 14 Good cause appearing, IT IS HEREBY ORDERED that: 15 1. 16 is GRANTED. 17 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 18 designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee 19 owed in this case by collecting monthly payments from the account in an amount equal to twenty 20 percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court 21 each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). 22 ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 23 ASSIGNED TO THIS ACTION. 3. 24 The Clerk of the Court is directed to serve a copy of this Order on Jeffrey Beard, 25 Ph.D., Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 26 502, Sacramento, California 95814. 27 /// 28 /// I:\Chambers Curiel\Civil - Odd\13cv1153-grt IFP & dsm.wpd, 62713 7 13cv1153 GPC (PCL) 1 IT IS FURTHER ORDERED that: 2 4. Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. 3 §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave 4 from the date this Order is “Filed” in which to file a First Amended Complaint which cures all 5 the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete in 6 itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants 7 not named and all claims not re-alleged in the Amended Complaint will be deemed to have been 8 waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended 9 Complaint fails to state a claim upon which relief may be granted, it may be dismissed without 10 further leave to amend and may hereafter be counted as a “strike” under 28 U.S.C. § 1915(g). 11 See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996). 12 5. 13 form complaint. 14 15 The Clerk of Court is directed to mail Plaintiff a Court approved civil rights § 1983 IT IS SO ORDERED. DATED: June 27, 2013 16 HON. GONZALO P. CURIEL United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 I:\Chambers Curiel\Civil - Odd\13cv1153-grt IFP & dsm.wpd, 62713 8 13cv1153 GPC (PCL)

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