Landroche v. California Parole Board (BPH) et al

Filing 3

ORDER (1) Granting 2 Motion for Leave to Proceed in forma pauperis, ImposingNo Initial Partial Filing Fee, Garnishing $350 from Prisoner's Trust Account; and (2) Sua Sponte Dismissing Complaint Without Prejudice For Seeking Monetary Dama ges Against Immune Defendants Pursuant 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 m onthly 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). (Order electronically transmitted to Secretary of CDCR). Plaintiff is Granted forty-five (45) days to file a First Amended Complaint. Signed by Judge Gonzalo P. Curiel on 11/18/2013. (approved form § 1983 civil rights 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 8 9 10 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA TRAYTON LANDROCHE, CDCR #V-75384, Civil No. Plaintiff, 12 vs. 15 16 17 18 (2) SUA SPONTE DISMISSING COMPLAINT FOR SEEKING MONETARY DAMAGES AGAINST IMMUNE DEFENDANTS PURSUANT TO 28 U.S.C. §§ 1915(e)(2) and 1915A(b) CALIFORNIA PAROLE BOARD; KEITH BAKER; ALEXANDRA FLORES, 19 20 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE, GARNISHING $350 FROM PRISONER’S TRUST ACCOUNT [ECF No. 2]; and 13 14 13cv2644 GPC (MDD) Defendants. 21 22 23 24 Plaintiff, Trayton Landroche, a state prisoner currently incarcerated at the California 25 Rehabilitation Center located in Norco, California and proceeding pro se, has filed a civil rights 26 action filed pursuant to 42 U.S.C. § 1983. Plaintiff alleges that his constitutional rights were 27 violated when he was arrested for parole violations and housed in the San Diego Central Jail in 28 2012. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, C:\Users\lc1curiel\AppData\Local\Temp\notes8BFA41\13cv2644-grt IFP & dsm.wpd, 111813 -1- 13cv2644 GPC (MDD) 1 he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) 2 [ECF No. 2]. 3 I. Motion to Proceed IFP [ECF No. 2] 4 All parties instituting any civil action, suit or proceeding in a district court of the United 5 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 6 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee 7 only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). 8 Section 1915, as amended by the Prison Litigation Reform Act (“PLRA”), further 9 requires that each prisoner seeking leave to proceed IFP submit a “certified copy of [his] trust 10 fund account statement (or institutional equivalent) ... for the six-month period immediately 11 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). Using these certified trust 12 account statements, the Court must assess an initial payment of 20% of (a) the average monthly 13 deposit, or (b) the average monthly balance in the account for the past six months, whichever is 14 greater, and collect that amount as the prisoner’s initial partial filing fee, unless he has no current 15 assets with which to pay. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). Thereafter, the 16 institution having custody of the prisoner must collect subsequent payments, assessed at 20% 17 of the preceding month’s income, in any month in which his account exceeds $10, and forward 18 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 19 The Court finds that Plaintiff has submitted an affidavit that complies with 28 U.S.C. 20 § 1915(a)(1) [ECF No. 2] as well as a certified copy of his prison trust account statement 21 pursuant to 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3.2. Plaintiff’s trust account statement 22 shows he has insufficient funds from which to pay an initial partial filing fee. 23 Accordingly, the Court hereby GRANTS Plaintiff’s Motion to Proceed IFP [ECF No. 2], 24 and assesses no initial partial filing fee at this time. See 28 U.S.C. § 1915(b)(1). However, 25 Plaintiff is required to pay the full $350 filing fee mandated by 28 U.S.C. §§ 1914(a) and 26 1915(b)(1), by subjecting any future funds credited to his prison trust account to the installment 27 payment provisions set forth in 28 U.S.C. § 1915(b)(2). 28 /// C:\Users\lc1curiel\AppData\Local\Temp\notes8BFA41\13cv2644-grt IFP & dsm.wpd, 111813 -2- 13cv2644 GPC (MDD) 1 II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A 2 The PLRA also obligates the Court to review complaints filed by all persons proceeding 3 IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 4 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 5 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 6 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 7 provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion 8 thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from 9 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 10 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 11 446 (9th Cir. 2000) (§ 1915A). 12 A. Constitutional Claims 13 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person 14 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived 15 the claimant of some right, privilege, or immunity protected by the Constitution or laws of the 16 United States. See 42 U.S.C. § 1983. 17 B. Application to Plaintiff’s Complaint 18 To the extent Plaintiff seeks money damages against the California Parole Board (“CPB”) 19 for alleged constitutional violations, the Court finds the constitutional claims against this 20 Defendant must be dismissed for seeking damages against defendants who are immune pursuant 21 to 28 U.S.C. § 1915(e)(2)(B)(ii) & (iii). The State of California, and the CPB, an agency of the 22 State of California, are not “persons” subject to suit under § 1983 and are instead, entitled to 23 absolute immunity from monetary damages actions under the Eleventh Amendment. See 24 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53-54 (1996); Pennhurst State School & 25 Hosp. v. Halderman, 465 U.S. 89, 106 (1984); see also Hale v. State of Arizona, 993 F.2d 1387, 26 1398-99 (9th Cir. 1993). 27 /// 28 /// C:\Users\lc1curiel\AppData\Local\Temp\notes8BFA41\13cv2644-grt IFP & dsm.wpd, 111813 -3- 13cv2644 GPC (MDD) 1 Plaintiff also seeks to hold Keith Baker, Commissioner of the Board of Parole Hearings, 2 liable for monetary damages for his role in presiding over Plaintiff’s parole revocation hearing. 3 (See Compl. at 2, 5.) However, state parole officials are immune from damages actions based 4 on any decision to “‘grant, deny, or revoke parole’ because those tasks are ‘functionally 5 comparable’ to tasks performed by judges.” See Swift v. California, 834 F.3d 1184, 1189 (9th 6 Cir. 2004) (citations omitted.). 7 III. Conclusion and Order 8 Good cause appearing therefore, IT IS HEREBY ORDERED that: 9 1. 10 11 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, or his 12 designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee 13 owed in this case by collecting monthly payments from the account in an amount equal to twenty 14 percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court 15 each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). 16 ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 17 ASSIGNED TO THIS ACTION. 18 3. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey Beard, 19 Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, 20 Sacramento, California 95814. 21 IT IS FURTHER ORDERED that: 22 4. Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. 23 §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave 24 from the date this Order is “Filed” in which to file a First Amended Complaint which cures all 25 the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete in 26 itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants 27 not named and all claims not re-alleged in the Amended Complaint will be deemed to have been 28 waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). C:\Users\lc1curiel\AppData\Local\Temp\notes8BFA41\13cv2644-grt IFP & dsm.wpd, 111813 -4- 13cv2644 GPC (MDD) 1 2 5. The Clerk of Court is directed to mail Plaintiff a copy of a Court approved civil rights complaint form. 3 IT IS SO ORDERED. 4 DATED: November 18, 2013 5 HON. GONZALO P. CURIEL United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C:\Users\lc1curiel\AppData\Local\Temp\notes8BFA41\13cv2644-grt IFP & dsm.wpd, 111813 -5- 13cv2644 GPC (MDD)

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