Israel v. Nuno et al

Filing 10

ORDER: (1) granting Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. 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 mo nthly 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 1 915(b)(2). (Order electronically transmitted to Secretary of CDCR) ; and (2) granting Plaintiff's 4 Motion to Amend Complaint. Amended Complaint due 8/4/2014. Signed by Judge Cynthia Bashant on 7/7/14. (All non-registered users served via U.S. Mail Service)(cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GARCIA ISRAEL,

Case No. 14-cv-00243-BAS(BGS)
Plaintiff,

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v.
ANTONIO NUNO, et al.,
Defendants.

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ORDER:
(1) GRANTING PLAINTIFF’S
MOTION TO PROCEED IN
FORMA PAUPERIS
(ECF No. 2)
AND
(2) GRANTING PLAINTIFF’S
MOTION TO AMEND
COMPLAINT
(ECF No. 4)

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Garcia Israel (“Plaintiff”), currently incarcerated at Calipatria State Prison

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(“CAL”), and proceeding pro se, has filed a civil rights complaint pursuant to 42

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U.S.C. § 1983 (ECF No. 1).

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Plaintiff claims that several correctional and medical officials at Richard J.

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Donovan Correctional Facility (“RJD”) violated his Eighth Amendment rights in

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January and February 2013 by failing to ensure his safety, using excessive force

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against him, and denying him adequate medical treatment. See Compl. at 2-7.

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Plaintiff did not prepay the civil filing fee at the time he filed his Complaint;

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instead he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28
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U.S.C. § 1915(a) (ECF No. 2).

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Soon after, Plaintiff also filed a two-page “Motion to Amend” his Complaint

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seeking the Court’s permission to add a claim against Defendant Nuno, and add

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another claim against an newly identified RJD official, “Jane Doe Ms. Ball, Head

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of Medical” (ECF No. 4). This Motion was followed by another, also entitled

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“Motion to Amend,” in which Plaintiff references entirely new allegations of

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“continuing medical problems” at CAL and requests permission to add copies of his

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medical records as exhibits (ECF No. 7). Attached to neither of these documents,

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however, was any proposed Amended Complaint.

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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

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the United States, except an application for writ of habeas corpus, must pay a filing

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fee of $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s

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failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to

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28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

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However, a prisoner granted leave to proceed IFP remains obligated to pay the

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entire fee in installments, regardless of whether his action is ultimately dismissed.

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See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.

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2002).

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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act

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(“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of

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the trust fund account statement (or institutional equivalent) for the prisoner for the

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six-month period immediately preceding the filing of the complaint.” 28 U.S.C. §

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1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the

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certified trust account statement, the Court must assess an initial payment of 20% of

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(a) the average monthly deposits in the account for the past six months, or (b) the

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average monthly balance in the account for the past six months, whichever is

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greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. §
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1915(b)(4). The institution having custody of the prisoner must collect subsequent

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payments, assessed at 20% of the preceding month’s income, in any month in

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which the prisoner’s account exceeds $10, and forward those payments to the Court

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until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

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In support of his IFP Motion, Plaintiff has submitted a certified copy of his

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trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR

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3.2. Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account

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statement, as well as the attached prison certificate issued by a senior accounting

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officer at RJD verifying his available balances, and has determined that Plaintiff has

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no available 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

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bringing a civil action or appealing a civil action or criminal judgment for the

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reason that the prisoner has no assets and no means by which to pay the initial

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partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4)

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acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely

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on a “failure to pay . . . due to the lack of funds available to him when payment is

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ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No.

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

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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

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28 U.S.C. § 1915(b)(1).

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II.

Plaintiff’s Motion to Amend/Correct

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Notwithstanding Plaintiff’s IFP status, the PLRA also obligates the Court to

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review complaints filed by all persons proceeding IFP and by those, like Plaintiff,

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who are “incarcerated or detained in any facility [and] accused of, sentenced for, or

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

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parole, probation, pretrial release, or diversionary program,” “as soon as practicable
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after docketing.”

See 28 U.S.C. §§ 1915(e)(2) and 1915A(b).

Under these

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provisions of the PLRA, the Court must sua sponte screen and dismiss complaints,

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

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which seek damages from defendants who are immune.

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

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2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

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2010) (discussing 28 U.S.C. § 1915A(b)).

See 28 U.S.C. §§

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“The standard for determining whether a plaintiff has failed to state a claim

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upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the

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Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”

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Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). “To survive a motion to

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dismiss, a complaint must contain sufficient factual matter, accepted as true, to

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‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility

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when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544 (2007)). Conclusory statements that merely recite the

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elements of a claim are insufficient for the purpose of 12(b)(6). See Iqbal, 556

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U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported

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by mere conclusory statements, do not suffice.”); Twombly, 550 U.S. at 555 (“a

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plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires

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more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do.”).

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In this case, the Court finds it appropriate to defer screening of Plaintiff’s

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Complaint in light of his Motion to Amend (ECF No. 4), and his subsequent filings

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which indicate he wishes to add additional defendants and claims to his original

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pleading. “Courts have a duty to construe pro se pleadings liberally, including pro

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se motions as well as complaints.” Bernhardt v. Los Angeles Cnty., 339 F.3d 920,
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925 (9th Cir. 2003) (citing Zichko v. Idaho, 247 F.2d 1015, 1020 (9th Cir. 2001)

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(acknowledging court’s duty to construe pro se prisoner motions and pleadings

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liberally); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir.

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1988) (court must construe civil rights cases filed in pro se liberally “and must

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afford plaintiff the benefit of any doubt”); Christensen v. CIR, 786 F.2d 1382, 1384

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(9th Cir. 1986) (construing pro se taxpayer’s motion to “place statements in the

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record” as a motion for leave to amend).

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Under Federal Rule of Civil Procedure 15(a), a party may amend a pleading

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once as a matter of course either before the pleading is served, within 21 days after

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the pleading is served, or–if the pleading is one to which a responsive pleading is

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required–within 21 days after service of the responsive pleading. Fed.R.Civ.P.

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15(a)(1) (“a party may amend its pleading once as a matter of course within: (A)

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21 days after serving it, or . . . .”) (emphasis added). Accordingly, while the

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Court’s permission was not required under the circumstances, it hereby GRANTS

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Plaintiff’s Motion to Amend (ECF No. 4), and shall defer its mandatory screening

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pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) until after Plaintiff has an

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opportunity to present all his claims against each person he seeks to hold liable

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pursuant to 42 U.S.C. § 1983 in one complete amended operative pleading.

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Plaintiff is cautioned, however, that his Amended Complaint will supersede,

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or replace, his original Complaint (ECF No. 1), and that his Amended Complaint

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must, therefore, be complete by itself, name all the parties he intends to sue, and

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include a “short and plain statement” of any and all grounds upon which he claims

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entitlement to relief.

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Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading

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supersedes the original.”); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992). This Court will consider “[a]ll causes of action alleged in an original

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complaint which are not alleged in an amended complaint [as] waived.” King v.

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Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted); see also Lacey v.

See Fed.R.Civ.P. 8(a); Hal Roach Studios, Inc. v. Richard

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Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (en banc) (holding that while

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“claims dismissed with prejudice and without leave to amend” need not be repled to

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preserve them in the event of an eventual appeal, “claims voluntarily dismissed . . .

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will [be] consider[ed] . . . waived if not repled.”).

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Amended Complaint will be subject to the same screening his original Complaint

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would have received pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) had he not

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first sought leave to amend it, Plaintiff should take care to ensure that his Amended

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Complaint identifies all Defendants by name and contains sufficient “factual

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matter” to show: (1) how and why he believes his constitutional rights were

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violated; and (2) what each individual Defendant did to cause him injury. See

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Iqbal, 556 U.S. at 677-78. “Because vicarious liability is inapplicable to . . . § 1983

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suits, a plaintiff must plead that each Government-official defendant, through the

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official’s own actions, has violated the Constitution.” Id. at 676.

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III.

Thus, because Plaintiff’s

Conclusion and Order

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Good cause appearing therefor, IT IS HEREBY ORDERED that:

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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. 2) is GRANTED.
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The Secretary of the California Department of Corrections and

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Rehabilitation, or his designee, shall collect from Plaintiff’s prison trust account the

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$350 filing fee owed in this case by collecting monthly payments from the account

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in an amount equal to twenty percent (20%) of the preceding month’s income and

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forward payments to the Clerk of the Court each time the amount in the account

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exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2).

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SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

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ASSIGNED TO THIS ACTION.

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3.

ALL PAYMENTS

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

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Jeffrey A. Beard, Secretary, California Department of Corrections and

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Rehabilitation, P.O. Box 942883, Sacramento, California, 94283-0001.
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IT IS FURTHER ORDERED that:

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Plaintiff’s Motion to Amend/Correct (ECF No. 4) is GRANTED.

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Plaintiff’s Amended Complaint, should he elect to file one, must be filed with the

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Court no later than Monday, August 4, 2014. If Plaintiff does not file an Amended

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Complaint by that time, the Court will presume he wishes to proceed only with the

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claims already alleged against the Defendants previously identified in his original

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Complaint (ECF No 1), and shall issue conduct its mandatory screening of that

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pleading pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).

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IT IS SO ORDERED.

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DATED: July 7, 2014

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