Hollingsworth v. Paramo

Filing 5

ORDER (1) Granting Motion To Proceed In Forma Pauperis (Dkt # 2 ) And (2) Dismissing Complaint For Failing To State A Claim: The Secretary CDCR, or his designee, is directed to collect from Plaintiff's prison trust account the $350 filing fee owed in this case by garnishing monthly payments from his account in an amount equal to 20% of the preceding month's income and forwarding those payments to the Clerk of the Court each time the amount in the account exceeds $10 pur suant to 28 USC 1915(b)(2). Plaintiff is granted forty-five (45) days leave to file an Amended Complaint. Signed by Judge William Q. Hayes on 8/5/2016. (All non-registered users served via U.S. Mail Service. A blank 1983 Complaint form also was mailed to plaintiff. Order electronically transmitted to Secretary of CDCR. Copy also mailed to Secretary of CDCR as directed.) (mdc)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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JASON HOLLINGSWORTH,
Booking # 15746082,

ORDER:

Plaintiff,

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Case No.: 3:16-cv-01426-WQH-BLM

vs.

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

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CALIFORNIA DEP'T OF
CORRECTIONS; DANIEL PARAMO

AND

Defendants.

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

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Plaintiff, Jason Hollingsworth, an inmate currently incarcerated at the Richard J.

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Donovan Correctional Facility (“RJD”) located in San Diego, California has filed a civil

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rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1) and a Motion to Proceed In

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Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). Because Plaintiff’s

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Motion to Proceed IFP complies with 28 U.S.C. § 1915(a)(2), the Court grants him leave

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to proceed without full prepayment of the civil filing fees required by 28 U.S.C.

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§ 1914(a), but dismisses his Complaint for failing to state a claim pursuant to 28 U.S.C.
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§ 1915(e)(2) and § 1915A(b).

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A.

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Plaintiff’s IFP Motion
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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$400.1 See 28 U.S.C. § 1914(a). The 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 v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

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Bruce v. Samuels, __ S. Ct. __, 136 S. Ct. 627, 629 (U.S. 2016); Williams v. Paramo,

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775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately

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

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Cir. 2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

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“certified copy of the trust fund account statement (or institutional equivalent) for . . . the

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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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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 having

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custody of the prisoner then collects 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 forwards

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In addition to the $350 statutory fee, civil litigants 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, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);

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Bruce, 136 S. Ct. at 629.

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

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

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trust account statement indicates he has insufficient funds from which to pay a partial

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initial filing fee at this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event

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shall a prisoner be prohibited from bringing a civil action or appealing a civil action or

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criminal judgment for the reason that the prisoner has no assets and no means by which to

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pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850

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

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

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to him when payment is ordered.”).

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Therefore, the Court grants Plaintiff leave to proceed IFP and directs the Secretary

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for the California Department of Corrections and Rehabilitation (“CDCR”) to collect the

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entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to

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the Clerk of the Court pursuant to the installment payment provisions set forth in 28

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U.S.C. § 1915(b)(1). See id.

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B.

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Legal Standards for Screening Complaint Pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)
Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

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Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

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statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

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it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

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who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

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2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

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the targets of frivolous or malicious suits need not bear the expense of responding.’”

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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford
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Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its

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judicial experience and common sense.” Id. The “mere possibility of misconduct” or

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009).

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1.

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Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights,

42 U.S.C. § 1983

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privileges, or immunities secured by the Constitution and laws” of the United States.

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Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must

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allege two essential elements: (1) that a right secured by the Constitution or laws of the

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United States was violated, and (2) that the alleged violation was committed by a person

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acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of

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Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

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3:16-cv-01426-WQH-BLM

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2.

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Plaintiff purports to bring this action on behalf of all “current and former inmates”

Representation of other parties

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of the CDCR. Compl. at 3, 6. However, because Plaintiff is proceeding pro se, he has no

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authority to represent the legal interest of any other party. See Cato v. United States, 70

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F.3d 1103, 1105 n.1 (9th Cir. 1995); C.E. Pope Equity Trust v. United States, 818 F.2d

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696, 697 (9th Cir. 1987); see also Fed.R.Civ.P. 11(a) (“Every pleading, written motion,

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and other paper shall be signed by at least one attorney of record in the attorney’s original

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name, or if the party is not represented by an attorney, shall be signed by the party.”).

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Eleventh Amendment immunity

In addition, the Court finds that to the extent Plaintiff names the CDCR as a

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Defendant in this action, his claims must be dismissed sua sponte pursuant to both 28

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U.S.C. § 1915(e)(2) and § 1915A(b) for failing to state a claim and for seeking damages

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against a defendant who is immune. The State of California’s Department of Corrections

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and Rehabilitation and any state prison, correctional agency, sub-division, or department

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under its jurisdiction, are not “persons” subject to suit under § 1983. Hale v. State of

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Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (holding that a state department of

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corrections is an arm of the state, and thus, not a “person” within the meaning of § 1983).

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In addition, to the extent that Plaintiff seeks to sue the State of California itself for

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monetary damages, his claims are clearly barred by the Eleventh Amendment. See

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Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (“There can be no doubt . . .

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that [a] suit against the State and its Board of Corrections is barred by the Eleventh

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Amendment, unless [the State] has consented to the filing of such a suit.”).

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Therefore, to the extent Plaintiff seeks monetary damages against the CDCR, his

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Complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii) and 28 U.S.C.

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§ 1915A(b)(1) & (2).
“False Incarceration” claims

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4.

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Plaintiff claims, without specific factual allegations, that the practices of

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correctional officers at RJD have resulted in “inmates getting more time” and he argues
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that all current disciplinary rules violation reports should be “dismissed” and inmates

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released. Compl. at 2. The United States Supreme Court has “long held that habeas is

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the exclusive vehicle for claims brought by state prisoners that fall within the core of

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habeas, and such claims may not be brought in a § 1983 action.” Nettles v. Grounds, __

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F.3d __, 2016 WL 3997255 *3 (9th Cir. 2016). “Suits challenging the validity of the

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prisoner’s continued incarceration lie within ‘the heart of habeas corpus,’ whereas ‘a

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§ 1983 action is a proper remedy for a state prisoner who is making a constitutional

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challenge to the conditions of his prison life, but not to the fact or length of his custody.’”

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Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003), quoting Preiser v. Rodriguez, 411

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U.S. 475, 489-99 (1973) (holding that a writ of habeas corpus is “explicitly and

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historically designed” to provide a state prisoner with the “exclusive” means to “attack

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the validity of his confinement” in federal court).

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Therefore, to the extent that Plaintiff seeks immediate release from incarceration,
he cannot bring such a claim pursuant to § 1983.

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5.

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Plaintiff also alleges that the CDCR is “making over 2 billion dollars a year

Employment claims

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illegally paying inmate wages less than 10% of state and federal labor minimum wage

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laws.” Compl. at 5. The California Penal Code states, in part, that the “Department of

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Corrections shall require of every able-bodied prisoner imprisoned in any state prison as

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many hours of faithful labor in each day and every day during his or her term of

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imprisonment.” Cal. Penal Code. § 2700. The Ninth Circuit has held that incarcerated

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prisoners who work for “programs structured by the prison pursuant to the state’s

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requirement that prisoners work at hard labor, are not ‘employees” of the state within the

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meaning of the [Fair Labor Standards Act].” Hale, 993 F.2d at 1389. Therefore, inmates

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are not entitled to minimum wage under the FLSA. Id.; see also Burleson v. State of

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Cal., 83 F.3d 311, 313 (9th Cir. 1996).

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Accordingly, Plaintiff’s claims seeking “minimum wage” based on his prison
employment are dismissed for failing to state a claim upon which relief may be granted.
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Plaintiff also argues that he should be allowed to participate in the “Alternative

Housing claims

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Custody Program” which would give him the opportunity to serve his sentence in one of

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the following places: (1) a residential home; (2) a transitional care facility; or (3) a

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residential drug or treatment program. See CAL CODE REGS., tit. 15 § 3078.1(b).

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However, Plaintiff does not have a constitutional right to be housed at a particular

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institution or to receive a particular security classification. See Olim v. Wakinekona, 461

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U.S. 238, 244-50 (1983); Meachum v. Fano, 427 U.S. 215, 224 (1976); Moody v.

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Daggett, 429 U.S. 78, 87 n.9 (1976). Thus, Plaintiff’s due process claims are dismissed

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for failing to state a § 1983 claim upon which relief may be granted.

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Finally, Plaintiff names as the only individual Defendant, Warden Daniel Paramo.

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See Compl. at 1. However, Plaintiff’s Complaint contains no “factual contact” describing

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Paramo’s direct involvement in the alleged constitutional violations which would “allow[]

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the court to draw the reasonable inference that the [Warden] is liable for the misconduct

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alleged.” Iqbal, 556 U.S. at 678.

Respondeat Superior

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“All § 1983 claims must be premised on a constitutional violation.” Nurre v.

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Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). To state a claim, Plaintiff must

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demonstrate that each defendant personally participated in the deprivation of his

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constitutional rights. Iqbal, 556 U.S. at 673; Colwell v. Bannister, 763 F.3d 1060, 1070

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(9th Cir. 2014). Liability may not be imposed on supervisory personnel for the acts or

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omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at

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672-673; Jones, 297 F.3d at 934. Instead, supervisors may be held liable only if they

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“participated in or directed the violations, or knew of the violations and failed to act to

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prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca,

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625 F.3d 1202, 1205-06 (9th Cir. 2011).

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Because Plaintiff fails to allege any “factual matter” to suggest how or to what
extent Defendant Warden personally participated any of the alleged constitutional
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violations, his Complaint “fails to state a claim to relief that is plausible on its face,”

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Iqbal, 556 U.S. at 678; Taylor, 880 F.2d at 1045, and his claims against Defendant

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Paramo must be dismissed.

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A pro se litigant must be given leave to amend his or her complaint to state a claim

Leave to Amend

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unless it is absolutely clear the deficiencies of the complaint cannot be cured by

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amendment. See Lopez, 203 F.3d at 1130 (noting leave to amend should be granted when

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a complaint is dismissed under 28 U.S.C. § 1915(e) “if it appears at all possible that the

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plaintiff can correct the defect”). Therefore, while the Court finds Plaintiff’s Complaint

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fails to state any claim upon which relief can be granted, it will provide him a chance to

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fix the pleading deficiencies discussed in this Order. 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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C.

Conclusion and Order

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Good cause appearing, the Court:

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1.

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(Doc. No. 2).

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2.

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

DIRECTS the Secretary of the CDCR, or his designee, to collect from

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Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing

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monthly payments from his account in an amount equal to twenty percent (20%) of the

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preceding month’s income and forwarding those payments to the Clerk of the Court each

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time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

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PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

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ASSIGNED TO THIS ACTION.

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3.

DIRECTS the Clerk of the Court to serve a copy of this Order on Scott

Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.
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DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

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

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him forty-five (45) days leave from the date of this Order in which to file an Amended
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Complaint which cures all the deficiencies of pleading noted. Plaintiff’s Amended

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Complaint must be complete in itself without reference to his original pleading.

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Defendants not named and any claims not re-alleged in the Amended Complaint will be

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considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner

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& Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes

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the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that

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claims dismissed with leave to amend which are not re-alleged in an amended pleading

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may be “considered waived if not repled.”).

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5.

DIRECTS the Clerk of Court to mail to Plaintiff, together with this Order, a

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blank copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C.

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§ 1983” for his use in amending.

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IT IS SO ORDERED.
Dated: August 5, 2016

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