Ayala v. Fermon et al

Filing 4

ORDER: (1) Granting 3 Motion for Leave to Proceed in forma pauperis; and (2) Dismissing Complaint for Failing to State a Claim. Plaintiff is Granted forty five (45) days leave to file a First Amended Complaint. 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 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). Signed by Judge Gonzalo P. Curiel on 9/3/2014. (Order electronically transmitted to Secretary of CDCR) (Plaintiff mailed a court approved civil rights complaint form) (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JONATHAN AYALA,
CDCR #F-25736,
Plaintiff,

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Civil No.

vs.

AND

W. FERMON; W.L. MONTGOMERY,

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Defendants.

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ORDER:
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[Doc. No. 3]

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

Jonathan Ayala (“Plaintiff”), a state prisoner currently incarcerated at Calipatria

21 State Prison (“CAL”) located in Calipatria, California, and proceeding pro se, has filed
22 a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (Doc. No. 1).
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Plaintiff has not prepaid the civil filing fee; instead he has filed a Motion to

24 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No. 3).
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I.

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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

28 United States, except an application for writ of habeas corpus, must pay a filing fee of
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1 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to
2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
3 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a
4 prisoner granted leave to proceed IFP remains obligated to pay the entire fee in
5 installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C.
6 § 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

8 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of the
9 trust fund account statement (or institutional equivalent) for the prisoner for the six10 month period immediately preceding the filing of the complaint.”

28 U.S.C.

11 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
12 trust account statement, the Court assesses an initial payment of 20% of (a) the average
13 monthly deposits in the account for the past six months, or (b) the average monthly
14 balance in the account for the past six months, whichever is greater, unless the prisoner
15 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution
16 having custody of the prisoner then collects subsequent payments, assessed at 20% of
17 the preceding month’s income, in any month in which the prisoner’s account exceeds
18 $10, and forwards those payments to the Court until the entire filing fee is paid. See 28
19 U.S.C. § 1915(b)(2).
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In support of his IFP Motion, Plaintiff has submitted a certified copies of his trust

21 account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2.
22 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement,
23 as well as the prison certificate issued by an accounting clerk at CAL verifying his
24 available balances, and has determined that he has no money in his account, and no
25 monthly deposits or balance in his account during the 6-month period preceding the
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In addition to
$350 statutory fee, all parties
civil actions on or after
27 May 1, 2013, must pay theadditional administrative fee offiling See 28 U.S.C. § 1914(a)
an
$50.
Conference Schedule of
District Court
28 (JudicialHowever, the additional Fees, administrative Misc. Fee Schedule) (eff. May 1,
2013).
$50
fee is waived if the plaintiff is
granted leave to proceed IFP. Id.
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1 filing of this action. Therefore, Plaintiff has no available funds from which to pay an
2 initial partial filing fee at this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no
3 event shall a prisoner be prohibited from bringing a civil action or appealing a civil
4 action or criminal judgment for the reason that the prisoner has no assets and no means
5 by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28
6 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case
7 based solely on a “failure to pay . . . due to the lack of funds available to him when
8 payment is ordered.”).
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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 3) and

10 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350
11 balance of the filing fees mandated will be collected by the CDCR and forwarded to the
12 Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C.
13 § 1915(b)(1).
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II.

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

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A.

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Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the

Standard of Review

18 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP
19 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and]
20 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the
21 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as
22 soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under
23 these statutes, the Court must sua sponte dismiss complaints, or any portions thereof,
24 which are frivolous, malicious, fail to state a claim, or which seek damages from
25 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v.
26 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v.
27 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

2 the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are
3 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
4 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
5 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining
6 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that
7 requires the reviewing court to draw on its judicial experience and common sense.” Id.
8 The “mere possibility of misconduct” falls short of meeting this plausibility standard.
9 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

11 veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
12 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
13 (“[W]hen determining whether a complaint states a claim, a court must accept as true all
14 allegations of material fact and must construe those facts in the light most favorable to
15 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that
16 § 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,

18 particularly in civil rights cases, to construe the pleadings liberally and to afford the
19 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
20 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not
21 “supply essential elements of claims that were not initially pled.” Ivey v. Board of
22 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
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B.

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Plaintiff’s Complaint contains very few factual allegations but he does allege that

Plaintiff’s Complaint

25 Defendant Ferman used excessive force against him when he used “his state issued
26 40mm launcher” by “negligently discharging a round and effectively impacting my upper
27 eye brow on my right side, I lost consciousness.” (Compl. at 1.)
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Any physical application of force against a person in custody, whether it be

2 through brute strength, chemical or other weaponry, or mechanical restraint, may not be
3 excessive. See Whitley v. Albers, 475 U.S. 312 (1986) (prison shooting); Hudson v.
4 McMillian, 503 U.S. 1 (1992) (prison beating); LeMaire v. Maass, 12 F.3d 1444, 14505 53, 1457, 1460 (9th Cir. 1993) (prison’s use of in-shower and in-cell leg and waist
6 restraints). “That is not to say that every malevolent touch by a prison guard gives rise
7 to a federal cause of action.” Hudson, 503 U.S. at 10 (citing Johnson v. Glick, 481 F.2d
8 1028, 1033 (2d Cir. 1973) (“Not every push or shove, even if it may later seem
9 unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional
10 rights”). In order to violate the Eighth Amendment, the Defendant must use force which
11 is “unnecessary” and “wanton.” Whitley, 475 U.S. at 319. “It is obduracy and
12 wantonness, not inadvertence or error in good faith, that characterize the conduct
13 prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs
14 in connection with establishing conditions of confinement, supplying medical needs, or
15 restoring official control over a tumultuous cellblock.” Id.
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Thus, a constitutional violation can only be established if force was used

17 “maliciously and sadistically for the purpose of causing harm.” Id.; see also Wilson v.
18 Seiter, 501 U.S. 294, 298 (1991) (claims that an official has inflicted cruel and unusual
19 punishment contain both an objective component as well as a subjective “inquiry into the
20 prison official’s state of mind”). Here, the Court finds that Plaintiff’s claims, due in part
21 to a lack of sufficient factual allegations, fail to rise to the level of an Eighth Amendment
22 violation. There are no factual allegations, other than a claim of negligence, from which
23 the Court could find that any of the named Defendants acted with malicious or sadistic
24 intent.
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Accordingly, the Court finds that Plaintiff has failed to state an Eighth Amendment

26 against any of the named Defendants, and that these claims must be dismissed pursuant
27 to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 1126-27; Resnick,
28 213 F.3d at 446.
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Because Plaintiff is proceeding pro se, however, the Court having now provided

2 him with “notice of the deficiencies in his complaint,” will also grant him an opportunity
3 to “effectively” amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing
4 Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).
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III.

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CONCLUSION AND ORDER

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Good cause appearing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF

9 Doc. No. 3) is GRANTED.
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2.

The Secretary of the California Department of Corrections and

11 Rehabilitation, or his designee, shall collect from Plaintiff’s prison trust account the $350
12 filing fee owed in this case by collecting monthly payments from the account in an
13 amount equal to twenty percent (20%) of the preceding month’s income and forward
14 payments to the Clerk of the Court each time the amount in the account exceeds $10 in
15 accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY
16 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

18 A. Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. Box
19 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

22 a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is
23 GRANTED forty five (45) days leave from the date this Order is entered into the Court’s
24 docket in which to file a First Amended Complaint which cures all the deficiencies of
25 pleading noted above. Plaintiff’s Amended Complaint must be complete in itself without
26 reference to his original pleading. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc.
27 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended
28 pleading supersedes the original.”); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)
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1 (citation omitted) (“All causes of action alleged in an original complaint which are not
2 alleged in an amended complaint are waived.”).
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5.

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

4 complaint form.
5 DATED: September 3, 2014
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HON. GONZALO P. CURIEL
United States District Judge

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