Martin v. Harrinston et al

Filing 3

ORDER: (1) Granting 2 Motion to Proceed in Forma Pauperis; and (2) Sua Sponte Dismissing Complaint for Failing to State a Claim. The Secretary of the CDCR, or his designee, shall collect the $5.51 initial filing fee assessed by this Order from Plaintiff's prison trust account, and forward the remaining $344.49 balance of the full fee owed by collecting monthly payments from Plaintiff's account in an amount equal to twenty percent (20%) of the preceding month's inc ome to the Clerk of the Court each time the amount in Plaintiffs account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). Plaintiff is granted forty-five (45) days leave from the date of this Order in which to file an Amended Complaint. Signed by Judge Roger T. Benitez on 12/18/2014. (mailed copy of Order to Jeffrey A. Beard)(All non-registered users served via U.S. Mail Service)(knb)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

LANCE R. MARTIN,
CDCR # E-17299,

Civil No.
Plaintiff,

13
14

17

ORDER:
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF Doc. No. 2]

vs.

15
16

14cv2914 BEN (PCL)

AND
T. HARRINSTON; L. MILLER;
C. OROZCO,

18

Defendants.

19

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

20
21

Lance R. Martin (“Plaintiff”), a state prisoner currently incarcerated at Richard J.

22

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

23

a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983.

24

Plaintiff has not prepaid the $400 filing fee mandated by 28 U.S.C. § 1914(a);

25

instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28

26

U.S.C. § 1915(a) (ECF Doc. No. 2).

27

///

28

///
-1-

14cv2914 BEN (PCL)

1

I.

2

MOTION TO PROCEED IFP

3

All parties instituting any civil action, suit or proceeding in a district court of the

4

United States, except an application for writ of habeas corpus, must pay a filing fee. See

5

28 U.S.C. § 1914(a).1 An action may proceed despite the plaintiff’s failure to prepay the

6

entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See

7

Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a

8

prisoner and he is granted leave to proceed IFP, he nevertheless remains obligated to pay

9

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

10

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

11

2002).

12

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

13

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

14

of the trust fund account statement (or institutional equivalent) for . . . the six-month

15

period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);

16

Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account

17

statement, the Court assesses an initial payment of 20% of (a) the average monthly

18

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

19

account for the past six months, whichever is greater, unless the prisoner has no assets.

20

See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of

21

the prisoner then collects subsequent payments, assessed at 20% of the preceding

22

month’s income, in any month in which the prisoner’s account exceeds $10, and

23

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

24

In support of his IFP application, Plaintiff has submitted the certified copies of his

25

trust account statements required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2.

26

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),
(b); Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule (eff. May
28 1, 2013). However, the additional $50 administrative fee is waived if the plaintiff is
granted leave to proceed IFP. Id.
1

27

-2-

14cv2914 BEN (PCL)

1

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

2

as well as the attached prison certificate issued by a senior accounting officer at RJD

3

where he is currently incarcerated verifying his account history and available balances.

4

Plaintiff’s statements show an average monthly balance of $27.57, average monthly

5

deposits of $100.00, and an available balance of $5.40 in his account at the time of filing.

6

Based on this financial information, the Court GRANTS Plaintiff’s Motion to Proceed

7

IFP (ECF Doc. No. 2) and assesses an initial partial filing fee of $5.51 pursuant to 28

8

U.S.C. § 1915(b)(1).

9

However, the Secretary of the CDCR, or his designee, shall collect this initial fee

10

only if sufficient funds in Plaintiff’s account are available at the time this Order is

11

executed pursuant to the directions set forth below. See 28 U.S.C. § 1915(b)(4)

12

(providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action

13

or appealing a civil action or criminal judgment for the reason that the prisoner has no

14

assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at

15

850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal

16

of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds

17

available to him when payment is ordered.”). The remaining balance of the $350 total

18

fee owed in this case shall be collected and forwarded to the Clerk of the Court pursuant

19

to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

20

II.

21

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

22

A.

Standard of Review

23

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

24

PLRA also obligates the Court to review complaints filed by all persons proceeding IFP

25

and by those, like Plaintiff, who are “incarcerated or detained in any facility [and]

26

accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the

27

terms or conditions of parole, probation, pretrial release, or diversionary program,” “as

28

soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under
-3-

14cv2914 BEN (PCL)

1

these statutes, the Court must sua sponte dismiss complaints, or any portions thereof,

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

(“[W]hen determining whether a complaint states a claim, a court must accept as true all

19

allegations of material fact and must construe those facts in the light most favorable to

20

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

21

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

22

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

23

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

24

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

25

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

26

“supply essential elements of claims that were not initially pled.” Ivey v. Board of

27

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

28

///
-4-

14cv2914 BEN (PCL)

1

B.

Access to Courts Claims

2

Plaintiff claims that Defendants have delayed in mailing confidential legal mail

3

that he has submitted to them. Prisoners have a constitutional right to access to the

4

courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). The right is limited to the filing of

5

direct criminal appeals, habeas petitions, and civil rights actions. Id. at 354. Claims for

6

denial of access to the courts may arise from the frustration or hindrance of “a litigating

7

opportunity yet to be gained” (forward-looking access claim) or from the loss of a suit

8

that cannot now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S.

9

403, 412-15 (2002); see also Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011)

10

(differentiating “between two types of access to court claims: those involving prisoners’

11

right to affirmative assistance and those involving prisoners’ rights to litigate without

12

active interference.”).

13

However, the plaintiff must allege “actual injury” as the threshold requirement to

14

any access to courts claim. See Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. An

15

“actual injury” is “actual prejudice with respect to contemplated or existing litigation,

16

such as the inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at

17

348; see also Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury

18

as the “inability to file a complaint or defend against a charge”). The failure to allege an

19

actual injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure

20

to show that a ‘non-frivolous legal claim had been frustrated’ is fatal.”) (quoting Lewis,

21

518 U.S. at 353 & n.4).

22

In addition, the prisoner must allege the loss of a “non-frivolous” or “arguable”

23

underlying claim. See Harbury, 536 U.S. at 413-14. The nature and description of the

24

underlying claim must be set forth in the pleading “as if it were being independently

25

pursued.” Id. at 417. Finally, the plaintiff must specifically allege the “remedy that may

26

be awarded as recompense but not otherwise available in some suit that may yet be

27

brought.” Id. at 415.

28
-5-

14cv2914 BEN (PCL)

1

Plaintiff’s Complaint fails to allege the actual injury required to state an access to

2

courts claim. See Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. Specifically, he

3

has failed to allege how the delay in the mailing of legal documents resulted in an “actual

4

prejudice with respect to contemplated or existing litigation, such as the inability to meet

5

a filing deadline or to present a claim.” Lewis, 518 U.S. at 348; Jones, 393 F.3d at 936;

6

Iqbal, 556 U.S. at 678.

7

Moreover, Plaintiff’s Complaint also fails to identify or even nominally describe

8

the non-frivolous or arguable nature of the underlying cause of action he either

9

anticipated or lost as a result of Defendants’ actions. Harbury, 536 U.S. at 416 (“[L]ike

10

any other element of an access claim[,] . . . the predicate claim [must] be described well

11

enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of the

12

underlying claim is more than hope.”).

13

For these reasons, the Court finds Plaintiff’s access to courts claims must be

14

dismissed for failing to state a plausible claim upon which § 1983 relief can be granted.

15

See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678.

16

C.

Grievance claims

17

Plaintiff further alleges that prison officials have not adequately responded to his

18

administrative grievances in violation of his Fourteenth Amendment due process rights.

19

The Fourteenth Amendment provides that: “[n]o state shall ... deprive any person of life,

20

liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. “The

21

requirements of procedural due process apply only to the deprivation of interests

22

encompassed by the Fourteenth Amendment’s protection of liberty and property.” Board

23

of Regents v. Roth, 408 U.S. 564, 569 (1972). State statutes and prison regulations may

24

grant prisoners liberty or property interests sufficient to invoke due process protection.

25

Meachum v. Fano, 427 U.S. 215, 223-27 (1976). To state a procedural due process

26

claim, Plaintiff must allege: “(1) a liberty or property interest protected by the

27

Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of

28

process.” Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000).
-6-

14cv2914 BEN (PCL)

1

However, the Ninth Circuit has held that prisoners have no protected property

2

interest in an inmate grievance procedure arising directly from the Due Process Clause.

3

See Ramirez v. Galaza, 334 F.3d 850, 869 (9th Cir. 2003) (“[I]nmates lack a separate

4

constitutional entitlement to a specific prison grievance procedure”) (citing Mann v.

5

Adams, 855 F.2d 639, 640 (9th Cir. 1988) (finding that the due process clause of the

6

Fourteenth Amendment creates “no legitimate claim of entitlement to a [prison]

7

grievance procedure”)); accord Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (1995);

8

Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).

9

In addition, Plaintiff has failed to plead facts sufficient to show that prison official

10

deprived him of a protected liberty interest by allegedly failing to respond to his prison

11

grievances in a satisfactory manner. While a liberty interest can arise from state law or

12

prison regulations, Meachum, 427 U.S. at 223-27, due process protections are implicated

13

only if Plaintiff alleges facts to show that Defendants: (1) restrained his freedom in a

14

manner not expected from his sentence, and (2) “impose[d] atypical and significant

15

hardship on [him] in relation to the ordinary incidents of prison life.” Sandin v. Conner,

16

515 U.S. 472, 484 (1995); Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997).

17

Plaintiff pleads nothing to suggest how the allegedly inadequate review and

18

consideration of his inmate grievances resulted in an “atypical” and “significant

19

hardship.” Sandin, 515 U.S. at 483-84. Thus, to the extent Plaintiff challenges the

20

procedural adequacy of inmate grievance procedures, these claims must be dismissed for

21

failing to state a plausible claim upon which § 1983 relief can be granted. See 28 U.S.C.

22

§§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678.

23

Because Plaintiff is proceeding without counsel, and it is not “absolutely clear that

24

no amendment can cure” the defects of pleading set forth above, the Court will grant him

25

an opportunity to amend. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995);

26

Lopez, 203 F.3d at 1131; Cervantes, 5 F.3d at 1276-77.

27

///

28

///
-7-

14cv2914 BEN (PCL)

1

III.

2

CONCLUSION AND ORDER

3

Based on the foregoing, IT IS HEREBY ORDERED that:

4

1.

5
6

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

Doc. No. 2) is GRANTED.
2.

The Secretary of the CDCR, or his designee, shall collect the $5.51 initial

7

filing fee assessed by this Order from Plaintiff’s prison trust account, and forward the

8

remaining $344.49 balance of the full fee owed by collecting monthly payments from

9

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

10

income to the Clerk of the Court each time the amount in Plaintiff’s account exceeds $10

11

pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY

12

IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

13
14

3.

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

A. Beard, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.

15

IT IS FURTHER ORDERED that:

16

4.

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

17

relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1).

18

However, Plaintiff is GRANTED forty-five (45) days leave from the date of this Order

19

in which to file an Amended Complaint which cures all the deficiencies of pleading

20

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

21

reference to his original pleading. See S.D. CAL. CIVLR. 15.1. Defendants not named

22

and all claims not re-alleged in the Amended Complaint will be considered waived. See

23

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

24
25
26

DATED: December 18, 2014

27
28

Hon. Roger T. Benitez
United States District Judge
-8-

14cv2914 BEN (PCL)