Burton v. Paramo et al

Filing 3

ORDER: (1) granting 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 monthly payments fro m 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); (2) sua sponte dismissing complaint for failing to state a claim. Plaintiff is granted forty-five (45) days leave from the date of this Order in which to file a First Amended Complaint (Order electronically transmitted to Secretary of CDCR). Signed by Judge Anthony J. Battaglia on 8/11/14. (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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KEVIN BURTON,
CDCR #P-64954,

Civil
No.
Plaintiff,

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AND

DANIEL PARAMO, Warden, et al.,

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ORDER:
(1) GRANTING PLAINTIFF’S
MOTION TO PROCEED
IN FORMA PAUPERIS
(ECF Doc. No. 2)

vs.

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Defendants.

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(2) SUA SPONTE DISMISSING
COMPLAINT FOR FAILING
TO STATE A CLAIM
PURSUANT TO
28 U.S.C. §§ 1915(e)(2)(B)(ii)
AND 1915A(b)(1)

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Kevin Burton, (“Plaintiff”), currently incarcerated at Richard J. Donovan

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Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed

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a civil action (ECF Doc. No. 1). Plaintiff has not prepaid the civil filing fee; instead he

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has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)

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(ECF Doc. 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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$400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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

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prisoner granted leave to proceed IFP remains obligated to pay the entire fee in

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installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C.

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§ 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 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 the

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

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month period immediately preceding the filing of the complaint.”

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

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trust account statement, the Court must assess an initial payment of 20% of (a) the

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

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

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prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The

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institution having custody of the prisoner must collect subsequent payments, assessed at

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20% of the preceding month’s income, in any month in which the prisoner’s account

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exceeds $10, and forward those payments to the Court until the entire filing fee is paid.

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See 28 U.S.C. § 1915(b)(2).

28 U.S.C.

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

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account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2.

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

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In addition to the $350 statutory fee, all parties filing civil actions on or after
May 1, 2013, must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a)
(Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule) (eff. May 1,
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leave to proceed IFP. Id.
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as well as the attached prison certificate issued by a senior accounting officer at RJD

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verifying his available balances, and has determined that Plaintiff has no available funds

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from which to pay filing fees at this time. See 28 U.S.C. § 1915(b)(4).

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

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

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entire $350 balance of the filing fees mandated will be collected and forwarded to the

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Clerk 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 also

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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 whether

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a complaint states a plausible claim for relief [is] ... a context-specific task that requires

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the reviewing court to draw on its judicial experience and common sense.” Id. The “mere
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possibility of misconduct” falls short of meeting this plausibility standard. Id.

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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. However, while the court “ha[s] an obligation where the

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petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally

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and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342

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& n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)),

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it may not, in so doing, “supply essential elements of claims that were not initially pled.”

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Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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“Vague and conclusory allegations of official participation in civil rights violations are

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not sufficient 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 v.

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Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

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C.

Respondeat Superior and Individual Liability

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Plaintiff names as the only Defendant, Daniel Paramo, the Warden of RJD. See

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Compl. at 1. However, his Complaint contains no factual allegations to show that

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Warden Paramo actually knew of or took part in violating his constitutional rights.

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“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that

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each government-official defendant, through the official’s own individual actions, has

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violated the Constitution.” Iqbal, 556 U.S. at 676; see also Jones v. Community
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Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even

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pro se plaintiff must “allege with at least some degree of particularity overt acts which

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defendants engaged in” in order to state a claim).

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As currently pleaded, it appears Plaintiff seeks to hold the Warden liable based

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only on his general responsibility for all prisoners.

Plaintiff includes no details,

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however, as to what Paramo or any RJD correctional officer specifically did, or failed to

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do, which resulted in a constitutional violation. Iqbal, 556 U.S. at 678 (noting that

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FED.R.CIV.P. 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me

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accusation,” and that “[t]o survive a motion to dismiss, a complaint must contain

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sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on

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its face.’”) (quoting Twombly, 550 U.S. at 555, 570).

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To the extent it appears Plaintiff seeks to hold any person liable for causing him

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harm, his pleading must contain sufficient “factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged,” Iqbal,

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556 U.S. at 678, and include a description of personal acts by each individual defendant

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which show a direct causal connection to a violation of specific constitutional rights.

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor is only liable for the

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constitutional violations of his subordinates if the supervisor participated in or directed

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the violations, or knew of the violations and with deliberate indifference, failed to act to

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prevent them. Wilson v. Seiter, 501 U.S. 294, 303 (1991); Taylor, 880 F.2d at 1045. If

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there is no affirmative link between a defendant’s conduct and the alleged injury, as there

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is none alleged here, there is no violation of the Constitution. Rizzo v. Goode, 423 U.S.

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362, 370 (1976). “Causation is, of course, a required element of a § 1983 claim.” Estate

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of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into

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causation must be individualized and focus on the duties and responsibilities of each

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individual defendant whose acts or omissions are alleged to have caused a constitutional

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deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo, 423 U.S.

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at 370-71).
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Based on these pleading deficiencies, the Court finds Plaintiff has failed to state

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a claim against any person, and his Complaint therefore requires dismissal in its entirety

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pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at

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

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D.

Cruel and Unusual Punishment Claims

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Even if Plaintiff had alleged facts sufficient to show that any individual person

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named as a defendant could be held liable under § 1983, his Complaint stills fails to

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“contain sufficient factual matter, accepted as true, [that] ‘state[s] a claim to relief that is

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plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

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Plaintiff sets forth vague and general allegations that he is not receiving adequate medical

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care for his “degenerative issues.” Compl. at 1.

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“The treatment a prisoner receives in prison and the conditions under which he is

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confined are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511

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U.S. 825, 832 (1994). To plead a violation of this duty, however, the prisoner must allege

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facts sufficient to show that an individual prison official was “deliberately indifferent to

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a serious threat to [his] safety.” Id. at 834. The question under the Eighth Amendment

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is whether the official, acting with deliberate indifference, exposed the plaintiff to a

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sufficiently substantial ‘risk of serious damage to his future health . . . .’” Farmer, 511

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U.S. at 843 (citing Helling, 509 U.S. at 35). The Supreme Court has explained that

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“deliberate indifference entails something more than mere negligence . . . [but] something

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less than acts or omissions for the very purpose of causing harm or with the knowledge

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that harm will result.” Id. at 835. The Court defined this “deliberate indifference”

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standard as equal to “recklessness,” in which “a person disregards a risk of harm of which

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he is aware.” Id. at 836-37.

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Thus, to state an Eighth Amendment claim, Plaintiff’s Complaint must contain not

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just the “labels and conclusions,” but some “further factual enhancement,” Iqbal, 556

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U.S. at 678, to show that each individual person he seeks to hold liable under § 1983

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knew he faced an objectively serious risk to his safety or health, and also “inferred that
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substantial harm might result from the risk.” Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th

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Cir. 1995).

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Without more, however, the Court finds that as currently pleaded, Plaintiff’s Eighth

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Amendment claims contain only the “[t]hreadbare recitals of the elements of a[n Eighth

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Amendment] cause of action,” are “supported by mere conclusory statements,” and

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therefore, “do not suffice” to “state a claim to relief that is plausible on its face.” Iqbal,

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556 U.S. at 678 (citing Twombly, 550 U.S. at 555, 570); Lopez, 203 F.3d at 1126-27;

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Resnick, 213 F.3d at 446. Nonetheless, because Plaintiff is proceeding in pro se, and he

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has now been provided with “notice of the deficiencies in his complaint,” the Court will

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also grant him an opportunity to effectively amend. See Akhtar v. Mesa, 698 F.3d 1202,

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1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

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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, will collect from Plaintiff’s prison trust account the $350

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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 WILL BE CLEARLY

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IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 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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A. Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. Box

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942883, Sacramento, California, 94283-0001.

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IT IS FURTHER ORDERED that:

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4.

Plaintiff’s Complaint is DISMISSED without prejudice for failing to state

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a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1); and
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Plaintiff is GRANTED forty-five (45) days leave from the date of this Order

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in 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 reference

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to his original pleading. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard

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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.”); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation

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omitted) (“All causes of action alleged in an original complaint which are not alleged in

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an amended complaint are waived.”).

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

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action will 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)(B)(ii) and § 1915A(b)(1).

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DATED: August 11, 2014

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Hon. Anthony J. Battaglia
U.S. District Judge

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