Martin v. Culinary Cook Post et al

Filing 6

ORDER: (1) Denying Plaintiff's 3 Motion for Preliminary Injunction; (2) Granting Plaintiff's 2 Motion to Proceed in Forma Pauperis; and (3) Dismissing Complaint as Frivolous and For Failing to State a Claim. Plaintiff is granted forty five (45) days leave from the date this Order is "Filed" in which to file a First Amended Complaint The Secretary of 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 percent (20%) of the preceding months 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). Signed by Judge Roger T. Benitez on 3/16/2015.(Mailed a form § 1983 to Plaintiff) (cc: Jeffrey Beard)(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LANCE R. MARTIN,
CDCR #E-17299,
Plaintiff,

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(1) DENYING PLAINTIFF’S
MOTION FOR PRELIMINARY
INJUNCTION [ECF No. 3];

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vs.

(2) GRANTING PLAINTIFF’S
MOTION TO PROCEED IN
FORMA PAUPERIS, IMPOSING
NO PARTIAL FILING FEE AND
GARNISHING $ 350 BALANCE
FROM PRISONER’S TRUST
ACCOUNT PURSUANT
TO 28 U.S.C. § 1915(a)
[ECF No. 2]; and

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CULINARY COOK POST;
F. RUNAS; SERGEANT RUTLEDGE;
LIEUTENANT ALLAMBY;
K.A. SEIBEL,

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Civil
15cv0472 BEN (JMA)
No.
ORDER:

Defendants.

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(3) DISMISSING COMPLAINT AS
FRIVOLOUS AND FOR FAILING
TO STATE A CLAIM PURSUANT
TO 28 U.S.C. §§ 1915(e)(2)(B) &
1915A(b)

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I.

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PROCEDURAL HISTORY

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Plaintiff, Lance R. Martin, a state prisoner currently incarcerated at the Richard

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J. Donovan Correctional Facility (“RJD”) and proceeding in pro se, has filed a civil
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15cv0427 BEN (JMA)

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rights Complaint pursuant to 42 U.S.C. § 198. (ECF No. 1). Plaintiff has also filed a

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certified copy of his inmate trust account statement, which the Court has liberally

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construed as a Motion to Proceed In Forma Pauperis (“IFP”), pursuant to 28 U.S.C.

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§ 1915(a), along with a Motion for Preliminary Injunction. (ECF No. 3.)

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II.

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MOTION FOR PRELIMINARY INJUNCTION

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Plaintiff has filed a Motion for Preliminary Injunction pursuant to FED.R.CIV.P.

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65(a). Rule 65 of the Federal Rules of Civil Procedure provides that “the court may issue

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a preliminary injunction only on notice to the adverse party.” FED.R.CIV.P. 65(a). As

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a preliminary matter, Plaintiff’s Motion for Injunction does not comply with Rule 65(a)’s

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important procedural notice requirement. Here, Plaintiff has not demonstrated that his

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Complaint, or his Motion have been served on any named Defendant.

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Plaintiff’s Motion does not comply with this elemental procedural requirement of

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Federal Rule of Civil Procedure 65(a). Thus, the Court must DENY, without prejudice,

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Plaintiff’s Motion for Preliminary Injunction (ECF No. 3) pursuant to FED.R.CIV.P.

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65(a).

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Even if Plaintiff had properly served Defendants with notice of this Motion, this

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Motion would be denied. “A preliminary injunction is an extraordinary remedy never

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awarded as of right.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24

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(2008) (citation omitted). “The proper legal standard for preliminary injunctive relief

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requires a party to demonstrate ‘that he is likely to succeed on the merits, that he is likely

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to suffer irreparable harm in the absence of preliminary relief, that the balance of equities

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tips in his favor, and that an injunction is in the public interest.’” Stormans, Inc. v.

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Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter., 555 U.S. at 20). As set

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forth in detail below, the Court finds that dismissal of this action for failing to state a

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claim and as frivolous is appropriate following sua sponte screening. Therefore, Plaintiff

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is unable to show, for purposes of his Motion, that he is “likely to succeed on the merits.”

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Id.
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II.

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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 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez

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v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if a prisoner, like Plaintiff, is

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granted leave to proceed IFP, he remains obligated to pay the entire fee in “increments,”

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see Williams v. Paramo, __ F.3d __, 2015 WL 74144 at *1 (9th Cir. 2015), regardless

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of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor

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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 assesses an initial payment of 20% of (a) the average

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

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

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

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

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the preceding month’s income, in any month in which the prisoner’s account exceeds

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$10, and forwards those payments to the Court until the entire filing fee is paid. See 28

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U.S.C. § 1915(b)(2).

28 U.S.C.

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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)
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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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

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Court has reviewed Plaintiff’s trust account statement, but it shows that he insufficient

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funds from which to pay a partial initial civil filing fee. 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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850 (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’s Motion to Proceed IFP (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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$350 balance of the filing fees mandated will be collected by the California Department

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of Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court

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

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III.

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SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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

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proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained in any

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facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of

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

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diversionary program,” “as soon as practicable after docketing.” See 28 U.S.C. §§

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1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court must sua

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sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail

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to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C.

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§§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)

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(en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A);

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see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing
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§ 1915A).

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

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true all allegations of material fact and must construe those facts in the light most

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favorable to the plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting

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

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In addition, the Court’s duty to liberally construe a pro se’s pleadings, see Karim-Panahi

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v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988), is “particularly important

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in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

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However, in giving liberal interpretation to a pro se civil rights complaint, the court may

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not “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 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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Section 1983 imposes two essential proof requirements upon a claimant: (1) that

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a person acting under color of state law committed the conduct at issue, and (2) that the

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conduct deprived the claimant of some right, privilege, or immunity protected by the

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Constitution or laws of the United States. See 42 U.S.C. § 1983; Nelson v. Campbell,

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541 U.S. 637, 124 S. Ct. 2117, 2122 (2004); Haygood v. Younger, 769 F.2d 1350, 1354

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(9th Cir. 1985) (en banc).

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A.

Rule 8

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Plaintiff’s Complaint is difficult to decipher as many of the claims Plaintiff’s is

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attempting to allege are disjointed and incomprehensible. Rule 8 of the Federal Rules

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of Civil Procedure provides that in order to state a claim for relief in a pleading it must

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contain “a short and plain statement of the grounds for the court’s jurisdiction” and “a

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short and plain statement of the claim showing that the pleader is entitled to relief.”

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FED.R.CIV.P. 8(a)(1) & (2). Here, the Court finds that Plaintiff’s Complaint falls shorts

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of complying with Rule 8.

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B.

Frivolous claims

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Plaintiff’s Complaint also sets forth claims that appear to be delusional. A

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complaint is frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke

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v. Williams, 490 U.S. 319, 325 (1989). Plaintiff claims Defendants are “mingling [his

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food] in liquid rendered grease” and “human waste.” (Compl. at 9.)

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A court “may take notice of proceedings in other courts, both within and without

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the federal judicial system, if those proceedings have a direct relation to matters at

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issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971

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F.2d 244, 248 (9th Cir. 1992). This Court takes judicial notice that Plaintiff has made

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nearly identical food contamination claims in actions arising when he was housed in

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prisons located within the jurisdictional boundary of the Eastern District of California.

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See Martin v. Gonzales, et al., E.D. Cal. Civil Case No. 1:05-cv-00629-AWI-SMS; see

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also Martin v. Cope, et al., E.D. Cal. Civil Case No. 1:09-cv-01617-DLB. Plaintiff also

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alleged these same claims against different Defendants in Martin v. Giurbino, et al. S.D.

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Cal. Civil Case No. 3:13-cv-1430-JAH-BGS. In this matter, the District Court Judge

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also found similar claims to be frivolous and dismissed the action. (Id., ECF No. 19.)

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Plaintiff appealed but the Ninth Circuit Court of Appeals found Plaintiff’s appeal to be

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frivolous as well. (Id., ECF No. 26.)

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Here, the Court finds the claims in Plaintiff’s Complaint to be frivolous because

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they lack even “an arguable basis either in law or in fact,” and appear “fanciful,”

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“fantastic,” or “delusional.” Neitzke, 490 U.S. at 325, 328.

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C.

Eighth Amendment claims

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Plaintiff also claims that Defendants have denied him adequate medical care.

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Where an inmate’s claim is one of inadequate medical care, the inmate must allege “acts

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or omissions sufficiently harmful to evidence deliberate indifference to serious medical

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needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Such a claim has two elements:

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“the seriousness of the prisoner’s medical need and the nature of the defendant’s

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response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991),
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overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.

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1997). A medical need is serious “if the failure to treat the prisoner’s condition could

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result in further significant injury or the ‘unnecessary and wanton infliction of pain.’”

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McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious

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medical need include “the presence of a medical condition that significantly affects an

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individual’s daily activities.” Id. at 1059-60. By establishing the existence of a serious

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medical need, an inmate satisfies the objective requirement for proving an Eighth

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Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

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In general, deliberate indifference may be shown when prison officials deny,

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delay, or intentionally interfere with a prescribed course of medical treatment, or it may

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be shown by the way in which prison medical officials provide necessary care.

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Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said

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that a inmate’s civil rights have been abridged with regard to medical care, however, “the

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indifference to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’

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or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter

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Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). See

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also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).

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Here, Plaintiff’s Complaint contains no comprehensible factual allegations from

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which any of the named Defendants could be found to be deliberately indifferent to his

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serious medical needs. Plaintiff claims that his “cholesterol levels have been unlawfully

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elevated by Defendants” which is now “causing cardiovascular disease.” (Compl. at 10-

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11.) Objectively, cardiovascular disease may be considered a “serious medical need.”

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However, there are no plausible allegations that any of the named Defendants caused

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Plaintiff’s alleged medical condition or failed to provide medical care.
Thus, Plaintiff’s Eighth Amendment

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inadequate medical care claims

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

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are

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IV.

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CONCLUSION AND ORDER

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Good cause appearing therefor, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s Motion for Preliminary Injunction (ECF No. 3) is DENIED.

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2.

Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No.

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2) is GRANTED.
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The Secretary of California Department of Corrections and Rehabilitation,

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or his designee, shall collect from Plaintiff’s prison trust account the $350 balance of the

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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 SHALL BE CLEARLY

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IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

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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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5.

Plaintiff’s Complaint is DISMISSED without prejudice as frivolous and for

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failing to state a claim upon which relief may be granted pursuant to 28 U.S.C.

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§§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days

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leave from the date this Order is “Filed” in which to file a First Amended Complaint

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which cures all the deficiencies of pleading noted above. Plaintiff’s Amended Complaint

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must be complete in itself without reference to the superseded pleading. See S.D. Cal.

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Civ. L. R. 15.1. Defendants not named and all claims not re-alleged in the Amended

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Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 565, 567

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(9th Cir. 1987). Further, if Plaintiff’s Amended Complaint fails to state a claim upon

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which relief may be granted, it may be dismissed without further leave to amend and

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may hereafter be counted as a “strike” under 28 U.S.C. § 1915(g). See McHenry v.
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Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).

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6.

The Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff.

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IT IS SO ORDERED.

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DATED: March 16, 2015

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Hon. Roger T. Benitez
United States District Judge

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