McKinley v. Miller et al

Filing 3

ORDER (1) Granting Motion To Proceed In Forma Pauperis (Doc. 2 ) And (2) Sua Sponte Dismissing Complaint For Failing To State A Claim: The Secretary CDCR, or his designee, shall collect from Plaintiff's prison trust account the $350 filing fee owed in this case by collecting monthly payments from the account in an amount equal to 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 accordan ce with 28 USC 1915(b)(2). Plaintiff is granted forty-five (45) days leave from the date of this Order in which to file a First Amended Complaint. If Plaintiff fails to file an Amended Complaint within the time provided, this civil action shall remai n dismissed without prejudice. Signed by Judge William Q. Hayes on 3/5/2015. (All non-registered users served via U.S. Mail Service; per Order, a blank 1983 Complaint form also was mailed to Plaintiff; Order electronically transmitted to Secretary of CDCR; per Order, a copy of the Order was mailed to CDCR Secretary at the indicated mailing address.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TERRY McKINLEY,
CDCR #C-9411 7,

Civil No.

ORDER:

Plaintiff,

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

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vs.

AND

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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 28 U.S.C § 1915A(bJ(1)

AMY MILLER; J.G. JANDA;
R. PREMDAS; B. HUGIE,

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Defendants.

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Terry McKinley ("Plaintiff'), a state prisoner currently incarcerated at California

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Men's Colony West located in San Luis Obispo, California, and proceeding pro se, has

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

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Plaintiff claims Defendants violated his constitutional rights when he was housed

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at Centinela State Prison ("CEN") in 2014. Plaintiff has not prepaid the $400 filing fee

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mandated by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma
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Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No.2).

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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 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).! An action may proceed despite a plaintiffs 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), (b)(4). The institution having

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custody of the prisoner must collect subsequent payments, assessed at 20% of the

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preceding month's income, in any month in which his account exceeds $10, and forward

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those payments to the Court until the entire filing fee is paid. 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. ClvLR 3.2. Andrews, 398 F.3d at 1119. The

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Court has reviewed Plaintiff s trust account statement, as well as the attached prison

28 U.S.C.

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1 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 1,2013). However,
the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP.
Id.
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certificate verifying his available balances, and has determined that Plaintiff has no
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available funds from which to pay filing fees at this time. See 28 U.S.C. § 1915(b)(4)

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

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

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

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8S0 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal

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

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available to him when payment is ordered.").

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Therefore, the Court GRANTS Plaintiff leave to proceed IFP (ECF Doc. 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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$3S0 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.

SUA SPONTE SCREENING PER 28 U.S.C.

§ 1915(e)(2)(B) AND § 1915A(b)

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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

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

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

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or conditions of parole, probation, pretrial release, or diversionary program," "as soon

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as practicable after docketing." See 28 U.S.C. § 1915(e)(2)(B), § 1915A(a), (b). Under

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

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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(b); 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 ofthe 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 ofthe elements ofa cause ofaction, 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)). "Detennining

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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. Us. 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 detennine 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 detennining 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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201 0) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.l (9th Cir. 1985)), it may not

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

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

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conclusory allegations ofofficial 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

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v. 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)

5 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.

Eighth Amendment Failure to Protect Claims

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The Eighth Amendment requires that prison officials take reasonable measures to

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guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825,832 (1994). In

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particular, prison officials have a duty to protect prisoners from violence at the hands of

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other prisoners. See id. at 833; Hoptowit v. Ray 682 F.2d 1237, 1250-51 (9th Cir. 1982)

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("Prison officials have a duty to take reasonable steps to protect inmates from physical

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abuse."). However, a prison official violates the Eighth Amendment only when two

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requirements are met: (1) the deprivation alleged is, obj ecti vely, sufficiently serious; and

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(2) the prison official is, subjectively, deliberately indifferent to inmate safety. Farmer,

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511 U.S. at 834; Berg v. Kincheloe, 794 F.2d 457,459 (9th Cir. 1986). "Deliberate

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indifference" requires that the official knows of and disregards an excessive risk to

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inmate health or safety. Farmer, 511 U.S. at 837. The official must both be aware of

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facts from which the inference could be drawn that a substantial risk of serious harm

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exists, and he must also draw the inference. Id.

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As currently pleaded, the Court finds Plaintiff has failed to allege facts sufficient

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to support a plausible claim for relief under the Eighth Amendment against Defendants

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because he has failed to include "further factual enhancement" from which the Court

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may reasonably infer that any ofthe named Defendants acted, or failed to reasonably act,

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under circumstances which presented a "substantial" or obvious risk" of "imminent"

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harm to Plaintiff. See Iqbal, 556 U.S. at 678; Baze v. Rees, 553 U.S. 35, 50 (2008) (to

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be deliberately indifferent, a prison official must fail to reasonably act under

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circumstances which are '''sure or very likely to cause serious ... and needless
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suffering'" and which "give rise to 'sufficiently imminent dangers. '" (quoting Helling
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v. McKinney, 509 U.S. 25, 33-35 (1993)).

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In Plaintiffs Complaint he generally refers to "prison officials" "intentionally

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creating and spreading false rumors" in which Plaintiff was allegedly labeled an

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informant. (Compl. at 14.) Plaintiff does allege that he was injured by other inmates but

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he fails to identify with any specificity how the named Defendants were personally

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involved in the allegation that he was labeled an informant.

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Thus, as currently pleaded, the Court finds Plaintiffs Eighth Amendment failure

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to protect claims against Defendants are merely "consistent with" their possible liability,

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but, without more are insufficient to "nudge [Plaintiff s] his claim" of cruel and unusual

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punishment "across the line from conceivable to plausible." Iqbal, 556 U.S. at 678,680

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(citing Twombly, 550 U.S. at 557,570).

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Accordingly, Plaintiffs Eighth Amendment failure to protect claims must be

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dismissed sua sponte for failing to state a claim upon which relief can be granted

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pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii) and § 1915A(b)(1), but without prejudice so

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that Plaintiff may attempt to properly amend them in light of the standard of pleading

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outlined above. See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446; Lucas v.

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Dept. of Corr., 66 F .3d 145, 248 (9th Cir. 1995) (per curiam) ("Unless it is absolutely

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clear that no amendment can cure [a pleading] defect ..., a pro se litigant is entitled to

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notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of

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the action.").

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D.

Due Process Claims

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Plaintiff further alleges to have been deprived ofthirty (30) days ofbehavior credit

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as a result of his disciplinary conviction for possessing a controlled substance. (See

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Compl. at 8.) The Court finds this claim must also be dismissed for failing to state a

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claim upon which section 1983 can be granted because a finding in Plaintiff s favor

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would "necessarily imply the invalidity" of his disciplinary conviction. See Heck v.

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Humphrey, 512 U.S. 477,486-87 (1994); Edwards v. Balisok, 520 U.S. 641, 643-44
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(1997).
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Heck and Balisok make clear that constitutional claims involving a prison's

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disciplinary decision to revoke behavioral credits fail to state a claim under section 1983

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since habeas corpus is the exclusive federal remedy whenever a claim for damages

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depends on a determination that a disciplinary judgment is invalid or the sentence

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currently being served is unconstitutionally long. Balisok, 520 U.S. at 643-44; Heck, 512

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U.S. at486-87; see also Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (holding that

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a person in state custody may not use § 1983 to challenge "the very fact or duration of

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... confinement" by seeking "a determination that he is entitled to immediate release or

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a speedier release from that imprisonment."); Nonnette v. Small, 316 F.3d 872, 875 (9th

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Cir. 2002) ("It has been clear for over thirty years that a state prisoner seeking injunctive

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relief against the denial or revocation of good-time credits must proceed in habeas

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corpus, and not under § 1983.").

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Here, Plaintiffs § 1983 claim for money damages necessarily implies the

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invalidity ofhis disciplinary conviction and renders his claim incognizable under Heck.

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B a lis ok, 520 U.S. at 648; see also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005)

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(noting that "a state prisoner's § 1983 action is barred (absent prior invalidation)-no

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matter the relief sought (damages or equitable relief), no matter the target of the

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prisoner's suit (state conduct leading to conviction or internal prison proceedings )-if

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success in that action would necessarily demonstrate the invalidity of confinement or its

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duration.") (emphasis in original).

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Thus, in addition to amending his pleading to state an Eighth Amendment claim,

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Plaintiff must also amend to allege facts sufficient to show that Defendants' decision to

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revoke thirty days of his behavioral credit has already been "reversed on direct appeal,

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expunged by executive order, declared invalid by a state tribunal authorized to make

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such a determination, or called into question by a writ ofhabeas corpus." Heck, 512 U.S.

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at 486-87. Until and unless he can do so, no cause of action will accrue under § 1983.

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Id.

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IV. 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 pursuantto 28 U.S.C. § 1915(a)(Doc. No.

2) is GRANTED.
2.

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 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 SHALL BE CLEARLY

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IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO TillS ACTION.

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3.

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.

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

relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(l).
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Plaintiff is GRANTED forty-five (45) days leave from the date of this

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Order in which to file a First Amended Complaint which cures the deficiencies of

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

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reference to his original pleading. See S.D. CAL. ClvLR 15.1; Hal Roach Studios, Inc.

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

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pleading supersedes the original."); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)

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

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alleged in an amended complaint are waived.").

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

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action shall remain dismissed without prejudice based on Plaintiff's failure to state a

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claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

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§ 1915A(b)(1).

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The Clerk of Court shall mail Plaintiff a court approved civil rights

complaint form.

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DATED:

HON. WILLIAM . HAYES

United States Dist lct Judge

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