Walker v. Becerra et al

Filing 3

ORDER: (1) Granting 2 Plaintiff's Motion to Proceed in Forma Pauperis; and (2) Sua Sponte Dismissing Complaint for Failing to State a Claim Pursuant To 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The Secretary of the California Department of Corrections and Rehabilitation, or his designee, shall collect from Plaintiff's prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the account in an amount equal to twenty percen t (20%) of the preceding month's income and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). Plaintiff is granted forty five (45) days leave fro m the date this Order is "Filed" in which to file a First Amended Complaint. Signed by Judge Roger T. Benitez on 7/21/2014.(cc: Jeffrey Beard)(Sent complaint form to Plaintiff) (All non-registered users served via U.S. Mail Service)(knb)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN WESELEYE WALKER,
CDCR #D-44672,

CASE NO. 14CV1558 BEN (PCL)
Plaintiff,

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(1) GRANTING PLAINTIFF’S
MOTION TO PROCEED
IN FORMA PAUPERIS
[Docket No. 2]; and

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vs.

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ORDER:

M. BECCERA, Correctional Officer;
M.D. CARYIO, Correctional Lieutenant;
J. HATFIELD, Correctional Lieutenant;
S. ANDERSON, Associate Warden,
Defendants.

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

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John Weseleye Walker, (“Plaintiff”), currently incarcerated at Calipatria State

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Prison located in Calipatria, California, and proceeding pro se, has initiated a civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff has not prepaid the civil filing fee; instead

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he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.

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§ 1915(a) (Docket No. 2).

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I.

PLAINTIFF’S 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 plaintiff’s failure to

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prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28

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

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However, “[u]nlike other indigent litigants, prisoners proceeding IFP must pay the full

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amount of filing fees in civil actions and appeals pursuant to the PLRA [Prison Litigation

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Reform Act].” Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As defined by the

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PLRA, a “prisoner” is “any person incarcerated or detained in any facility who is

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accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of

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criminal law or the terms and conditions of parole, probation, pretrial release, or

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diversionary program.” 28 U.S.C. § 1915(h). Because Plaintiff is currently incarcerated,

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he is a prisoner as defined by 28 U.S.C. § 1915(h), and therefore subject to the PLRA’s

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requirements and limitations. Ageyman, 296 F.3d at 886.

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Under 28 U.S.C. § 1915, as amended by the PLRA, a prisoner seeking leave to

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proceed IFP must submit a “certified copy of the trust fund account statement (or

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institutional equivalent) for the prisoner for the six-month period immediately preceding

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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

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an initial payment of 20% of (a) the average monthly deposits in the account for the past

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

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whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28

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U.S.C. § 1915(b)(4). The institution having custody of the prisoner must collect

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

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in 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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Plaintiff has submitted a certified copy of his trust account statement pursuant to

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28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Andrews, 398 F.3d at 1119. The trust

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account statement shows that Plaintiff has insufficient funds to pay an initial partial

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filing fee. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be
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prohibited from bringing a civil action or appealing a civil action or criminal judgment

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for the reason that the prisoner has no assets and no means by which to pay [an] initial

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

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

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to pay ... due to the lack of funds available.”).

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

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

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$350 balance of the filing fees mandated shall be collected and forwarded to the Clerk

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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.

INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) AND 1915A(b)(1)

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A.

Standard of Review

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Notwithstanding IFP status or the payment of any partial filing fees, the PLRA

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also obligates 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) and 1915A(b). Under these

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provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions

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thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from

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defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v.

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

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Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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All complaints must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining
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whether a complaint states a plausible claim for relief [is] ... a context-specific task that

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requires the reviewing court to draw on its judicial experience and common sense.” Id.

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The “mere possibility of misconduct” falls short of meeting this plausibility standard.

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Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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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

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the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

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

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However, while the court “ha[s] an obligation where the petitioner is pro se,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not, in

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so doing, “supply essential elements of claims that were not initially pled.” Ivey v. Bd.

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of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and

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conclusory allegations of official participation in civil rights violations are not sufficient

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to withstand a motion to dismiss.” Id.

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B.

42 U.S.C. § 1983

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“Section 1983 creates a private right of action against individuals who, acting

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under color of state law, violate federal constitutional or statutory rights.” Devereaux v.

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Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks

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and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)

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deprivation of a right secured by the Constitution and laws of the United States, and (2)

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that the deprivation was committed by a person acting under color of state law.” Tsao
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v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

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C.

Due Process

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Plaintiff claims that he was denied a “fair and impartial” disciplinary hearing when

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he was accused of attacking another inmate and the hearing resulted in a “SHU” term.

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(Compl. at 3.) The Due Process Clause protects Plaintiff against the deprivation of

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liberty without the procedural protections to which he is entitled. Wilkinson v. Austin,

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545 U.S. 209, 221 (2005). To state a due process claim, Plaintiff must first identify the

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interest at stake. Id. at 221. Liberty interests may arise from the Due Process Clause

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itself or from state law. Id.

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The Due Process Clause by itself does not confer on inmates a liberty interest in

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avoiding more adverse conditions of confinement, and under state law, the existence of

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a liberty interest created by prison regulations is determined by focusing on the nature

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of the condition of confinement at issue. Id. at 221-23 (citing Sandin v. Conner, 515

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U.S. 472, 481-84 (1995)) (quotation marks omitted). Liberty interests created by prison

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regulations are generally limited to freedom from restraint which imposes “atypical and

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significant hardship” on the inmate “in relation to the ordinary incidents of prison life.”

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Id. at 221 (citing Sandin, 515 U.S. at 484); Myron v. Terhune, 476 F.3d 716, 718 (9th

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Cir. 2007).

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In this case, Plaintiff has failed to establish a liberty interest protected by the

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Constitution because he has not alleged, as he must under Sandin, sufficient facts related

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to the conditions in the “SHU” which show “the type of atypical, significant deprivation

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[that] might conceivably create a liberty interest.” 515 U.S. at 486. For example, in

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Sandin, the Supreme Court considered three factors in determining whether the plaintiff

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possessed a liberty interest in avoiding disciplinary segregation: (1) the disciplinary

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versus discretionary nature of the segregation; (2) the restricted conditions of the

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prisoner’s confinement and whether they amounted to a “major disruption in his

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environment” when compared to those shared by prisoners in the general population; and

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(3) the possibility of whether the prisoner’s sentence was lengthened by his restricted
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custody. Id. at 486-87.

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Therefore, to allege a due process violation, Plaintiff’s Complaint must contain

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sufficient “factual content that allows the court to draw the reasonable inference” that his

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undefined stay in administrative segregation imposed an atypical and significant

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hardship on him in relation to the ordinary incidents of prison life. Iqbal, 556 U.S. at

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678; Sandin, 515 U.S. at 483-84. Plaintiff’s Complaint, however, fails to include any

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“further factual enhancement” which might suggest any major disruption in his

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environment, any comparison to the conditions of his previous confinement in the

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general population, or any mention whatsoever as to its potential effect on the length of

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his sentence. See Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556); Sandin, 515

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U.S. at 486-87. Plaintiff must offer more that “naked assertions devoid of further factual

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enhancement” in order to state a due process claim; and instead must include “sufficient

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factual matter,” id., which demonstrates “a dramatic departure from the basic conditions”

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of his confinement that would give rise to a liberty interest before he can claim a

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violation of due process. Sandin, 515 U.S. at 485; see also Keenan v. Hall, 83 F.3d

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1083, 1088-89 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998). This he has

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failed to do; therefore the Court finds that Plaintiff has failed to allege a liberty interest

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in remaining free of administrative segregation, and thus, has failed to state a due process

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claim. See May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (concluding that prisoners

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have no liberty interest in remaining free from administrative segregation or solitary

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confinement); Toussaint v. McCarthy, 801 F.2d 1080, 1091 (9th Cir.1985) (finding that

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administrative segregation is the type of confinement that should be reasonably

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anticipated by inmates at some point in their incarceration), abrogated in part on other

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grounds by Sandin, 515 U.S. 472; see also Myron, 476 F.3d at 718 (finding no “atypical

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and significant deprivation” where prisoner failed to allege conditions at level IV prison

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differed significantly from those at a level III prison).

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Accordingly, the Court finds Plaintiff’s Complaint also fails to state a due process

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claim as to any named Defendant upon which relief can be granted. See Lopez, 203 F.3d

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at 1126-27; Resnick, 213 F.3d at 446.

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III.

CONCLUSION AND ORDER

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Good cause appearing, 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

Doc. No. 2) is GRANTED.
2.

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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 balance of the filing fee owed in this case by collecting monthly payments from the

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

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and 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). ALL PAYMENTS SHALL BE

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CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS

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ACTION.
3.

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

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Beard, Secretary, California Department of Corrections and Rehabilitation, 1515 S

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Street, Suite 502, Sacramento, California 95814.

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IT IS FURTHER ORDERED that:

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4.

Plaintiff’s Complaint is DISMISSED for failing to state a claim upon which

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relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). However,

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Plaintiff is GRANTED forty five (45) days leave from the date this Order is “Filed” in

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which to file a First Amended Complaint which cures all the deficiencies of pleading

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noted above. Plaintiff’s Amended Complaint must be complete in itself without

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reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants not

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

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been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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If Plaintiff fails to file an Amended Complaint within the time provided, this civil

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action shall remain dismissed without prejudice and without further Order of the Court

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based on Plaintiff’s failure to state a claim upon which relief can be granted pursuant to

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

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5.

The Clerk of Court is directed to mail a court approved civil rights

complaint form to Plaintiff.

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DATED: July 21, 2014

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Hon. Roger T. Benitez
United States District Judge

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