Johns v. Janda et al

Filing 3

ORDER: Granting 2 Motion for Leave to Proceed in forma pauperis; DISMISSING Action Without Prejudice For Failing to State a Claim Pursuant to 28 USC §§ 1915(e)(2)(B) & 1915A(b). The Secretary CDCR, or his designee, is ordered to co llect 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). Plaintiff is Granted forty-five (45) days to file a First Amended Complaint. (Order electronically transmitted to Secretary of CDCR) (approved form § 1983 complaint mailed to Plaintiff). Signed by Judge Michael M. Anello on 9/10/2013. (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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GERRY JOHNS,
CDCR # C-38404
Plaintiff,

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(1) GRANTING MOTION TO
PROCEED IN FORMA
PAUPERIS;

vs.

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[Doc. No. 2]

G.J. JANDA; D. HJERPE;
J. ZAMORA,
Defendants.

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Civil
13cv1934 MMA (KSC)
No.
ORDER:

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

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Plaintiff, a state inmate currently incarcerated at Calipatria State Prison located in

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Calipatria, California, and proceeding pro se, has filed a civil rights Complaint pursuant

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to 42 U.S.C. § 1983. Plaintiff has also filed a Motion to Proceed In Forma Pauperis

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(“IFP”) pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2.

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I.

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 party’s failure to pay

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only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See
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Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d

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1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however, remain

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

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ultimately dismissed for any reason. See 28 U.S.C. § 1915(b)(1) & (2).

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The Court finds that Plaintiff has submitted an affidavit which complies with 28

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U.S.C. § 1915(a)(1), and that he has attached a certified copy of his trust account

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statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff’s trust

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account statement shows that he has insufficient funds from which to pay an initial partial

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filing fee.

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Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP [Doc. No. 2]

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and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the Court

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further orders the Secretary of the California Department of Corrections and

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Rehabilitation (“CDCR”) to garnish the entire $350 balance of the filing fees owed in this

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case, collect and forward them to the Clerk of the Court pursuant to the installment

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payment provisions set forth in 28 U.S.C. § 1915(b)(1).

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II.

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

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The Prison Litigation Reform Act (“PLRA”)’s amendments to 28 U.S.C. § 1915

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also obligate the Court to review complaints filed by all persons proceeding IFP and by

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those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of,

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sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or

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conditions of parole, probation, pretrial release, or diversionary program,” “as soon as

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practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these

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provisions, the Court must sua sponte dismiss any prisoner civil action and all other IFP

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complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim,

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or which seek damages from defendants who are immune.

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§§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en

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banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (9th Cir. 2000) (§ 1915A).

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To state a claim under § 1983, Plaintiff must allege that: (1) the conduct he
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See 28 U.S.C.

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complains of was committed by a person acting under color of state law; and (2) that

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conduct violated a right secured by the Constitution and laws of the United States.

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Humphries v. County of Los Angeles, 554 F.3d 1170, 1184 (9th Cir. 2009) (citing West

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v. Atkins, 487 U.S. 42, 48 (1988)).

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Here, the first page of Plaintiff’s Complaint indicates an intent to sue Defendants

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Janda, Hjerpe and Zamora, who are all purported to be prison officials at Calipatria State

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Prison, pursuant to 42 U.S.C. § 1983. However, the remaining pages filed by Plaintiff

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only contain pages for a Petition for Writ of Habeas Corpus and exhibits pertaining to

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Plaintiff’s disciplinary action while incarcerated at Kern Valley State Prison. The papers

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filed by Plaintiff, other than the first page, fail to address any claims against Defendants

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Janda, Hjerpe or Zamora or any allegations relating to Plaintiff’s conditions of

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confinement. Accordingly, the Court DISMISSES the entire action for failing to state a

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claim pursuant to 42 U.S.C. § 1983.

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The Court will grant Plaintiff leave to file an Amended Complaint but he must

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present factual allegations relating to alleged constitutional violations arising from his

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incarceration at Calipatria State Prison.

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III.

CONCLUSION AND ORDER

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Good cause appearing,

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1.

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The Court GRANTS Plaintiff’s Motion to proceed IFP pursuant to 28

U.S.C. § 1915(a) [Doc. No. 2].
2.

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

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S Street, Suite 502, Sacramento, California 95814.

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The Court DISMISSES Plaintiff’s Complaint without prejudice pursuant

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to 28 U.S.C. § 1915(e)(2)(b) and § 1915A(b). However, the Court GRANTS Plaintiff

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forty five (45) days leave from the date this Order is “Filed” in which to file a First

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Amended Complaint which cures 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

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pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants not named and all claims not re-

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alleged in the Amended Complaint will be deemed to have been waived. See King v.

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Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
5.

The Clerk of Court is directed to mail Plaintiff a copy of a Court approved

civil rights complaint form.
IT IS SO ORDERED.
DATED: September 10, 2013
Hon. Michael M. Anello
United States District Judge

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