Carson v. Martinez et al

Filing 3

ORDER: (1) granting 2 Motion for Leave to Proceed in forma pauperis Pursuant to 28 U.S.C. § 1915(a), (2) Dismissing Defendants Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and (3) Directing U.S. Marshal to Effect Service Upon R emaining Defendants Pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). US Marshal shall effect service of complaint. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the fil ing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR). Signed by Judge Janis L. Sammartino on 8/15/2016. (All non-registered users served via U.S. Mail Service)(kcm)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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DAVID VINCENT CARSON,
CDCR #J-19886,

ORDER: (1) GRANTING MOTION
TO PROCEED IN FORMA
PAUPERIS PURSUANT TO 28 U.S.C.
§ 1915(a),
(2) DISMISSING DEFENDANTS
PURSUANT TO 28 U.S.C. §§
1915(e)(2) AND 1915A(b), AND
(3) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE UPON
REMAINING DEFENDANTS
PURSUANT TO 28 U.S.C. § 1915(d)
AND FED. R. CIV. P. 4(c)(3)

Plaintiff,

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Case No.: 3:16-cv-1736-JLS-BLM

vs.

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F. MARTINEZ, et al.
Defendants.

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(ECF Nos. 1, 2)

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Plaintiff David Vincent Carson, currently incarcerated at the Correctional Training

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Facility located in Soledad, California and proceeding pro se, has filed a civil rights

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Complaint pursuant to 42 U.S.C. § 1983 (Compl., ECF No. 1), together with a Motion to

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Proceed In Forma Pauperis (IFP) (IFP Mot., ECF No. 2). Plaintiff claims fourteen named

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and unidentified correctional, medical, and inmate appeals officials at Richard J. Donovan

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Correctional Facility (RJD) violated his First, Eighth, and Fourteenth Amendment rights

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while he was incarcerated there in 2013 and 2014. (See Compl. At 4–13, ECF No. 1.)
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IFP MOTION

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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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$400.1 See 28 U.S.C. § 1914(a). An action may proceed despite the 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, if the plaintiff is a prisoner and he

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is granted leave to proceed IFP, he nevertheless remains obligated to pay the entire fee in

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“increments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d

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1182, 1185 (9th Cir. 2015), regardless of whether his action is ultimately dismissed, see 28

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U.S.C. § 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 (PLRA),

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a prisoner seeking leave to proceed IFP must also submit a “certified copy of the trust fund

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account statement (or institutional equivalent) for . . . the six-month period immediately

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preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d

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1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses

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an initial payment of 20% of (a) the average monthly deposits in the account for the past

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

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whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); Taylor,

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281 F.3d at 850. The institution having custody of the prisoner then collects subsequent

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payments, assessed at 20% of the preceding month’s income, in any month in which the

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prisoner’s account exceeds $10, and forwards them to the Court until the entire filing fee

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is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.

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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) (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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In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust

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account statement pursuant to 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3.2. Andrews,

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398 F.3d at 1119. These statements show that Plaintiff has an available balance of $0.01

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at the time of filing. (See ECF No. 2 at 8.) Therefore, the Court assesses no initial partial

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filing fee pursuant to 28 U.S.C. § 1915(b)(1) because it appears Plaintiff is unable to pay

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any initial fee. See 28 U.S.C. § 1915(b)(4) (“In no event shall a prisoner be prohibited

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from bringing a civil action or appealing a civil action or criminal judgment for the reason

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that the prisoner has no assets and no means by which to pay the initial partial filing fee.”);

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Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts

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as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure

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to pay . . . due to the lack of funds available to him when payment is ordered.”).)

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Accordingly, the Court GRANTS Plaintiff’s IFP Motion (ECF No. 2), declines to

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“exact” any initial filing fee because his trust account statement shows he “has no means

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to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California Department

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of Corrections and Rehabilitation (CDCR) to collect the entire $350 balance of the filing

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fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to

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

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INITIAL SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A
I.

Legal Standard

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

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

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

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of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or

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

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soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2), (h) and 1915A(a).

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Under these provisions of the PLRA, the Court must sua sponte dismiss complaints, or any

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portions thereof, which are frivolous, malicious, fail to state a claim, or which seek

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damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b);
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Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. §

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1915A(b)); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (discussing

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§ 1915(e)(2)) (en banc).

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All complaints must contain “a short and plain statement of the 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 of the elements of a cause of action, 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a

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

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reviewing court to draw on its judicial experience and common sense.” Id. The “mere

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possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

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Moss v. U.S. Secret Serv., 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 determine 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 determining 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 the

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plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“The language of

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

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However, while the court has 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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2010) (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc))

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(internal quotation marks omitted), it may not “supply essential elements of the claim that

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were not initially pled,” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th

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Cir. 1982).

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II.

Analysis

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A.

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Plaintiff names as a Defendant “J. Lewis,” who is identified as the “Deputy Director

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in charge of CDC Health Care Policy and Risk Management.” (Compl. 3, ECF No. 1.)

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Plaintiff alleges that Defendant Lewis violated his Eighth Amendment rights due to his

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alleged “failure to adequately train and supervise medical staff who administer diagnosis

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and treatment of Plaintiff’s serious medical needs.” (Id. at 16.) Plaintiff’s Complaint,

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however, contains no “factual content” describing Lewis’ direct involvement in Plaintiff’s

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medical care which would “allow[] the court to draw the reasonable inference that the

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Respondeat Superior

[Deputy Director] is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
“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).

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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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672–73; 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).

To state a claim, Plaintiff must

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Because Plaintiff fails to allege any “factual matter” to suggest how or to what extent

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Defendant Lewis personally participated in Plaintiff’s medical diagnosis or treatment, the

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basis of his alleged inadequate medical care claim, his Complaint “fails to state a claim to

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relief that is plausible on its face,” Iqbal, 556 U.S. at 678; Taylor, 880 F.2d at 1045, and

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his claims against Defendant Lewis must be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)

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and 1915A(b).

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B.

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Plaintiff seeks to hold Defendants Olson and Ramirez liable for alleged due process

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violations for the manner in which they responded to his administrative grievances. (See

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Compl. 14–15, ECF No. 1.) While the Fourteenth Amendment provides that “[n]o state

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shall . . . deprive any person of life, liberty, or property, without due process of law,” U.S.

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Const. amend. XIV, § 1, “[t]he requirements of procedural due process apply only to the

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deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty

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and property,” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972). State

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statutes and prison regulations may grant prisoners liberty or property interests sufficient

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to invoke due process protection. Meachum v. Fano, 427 U.S. 215, 223–27 (1976). To

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state a procedural due process claim, however, Plaintiff must allege: “(1) a liberty or

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property interest protected by the Constitution; (2) a deprivation of the interest by the

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government; [and] (3) lack of process.” Wright v. Riveland, 219 F.3d 905, 913 (9th Cir.

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2000).

Grievance Procedures

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The Ninth Circuit has held that inmates have no protected property interest in an

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inmate grievance procedure arising directly from the Due Process Clause. See Ramirez v.

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

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entitlement to a specific prison grievance procedure.”) (citing Mann v. Adams, 855 F.2d

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639, 640 (9th Cir. 1988) (finding that the due process clause of the Fourteenth Amendment

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creates “no legitimate claim of entitlement to a [prison] grievance procedure”)). Even the

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non-existence of, or the failure of prison officials to properly implement, an administrative

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appeals process within the prison system does not raise constitutional concerns. Mann,

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855 F.2d at 640; see also Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).

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In addition, Plaintiff has failed to plead facts sufficient to show that Defendant Olson

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or Ramirez deprived him of a protected liberty interest by allegedly failing to respond to

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any particular prison grievance in a satisfactory manner. While a liberty interest can arise

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from state law or prison regulations, Meachum, 427 U.S. at 223–27, due process

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protections are implicated only if Plaintiff alleges facts to show that Defendants:
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(1) restrained his freedom in a manner not expected from his sentence, and (2) “impose[d]

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atypical and significant hardship on [him] in relation to the ordinary incidents of prison

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life,” Sandin v. Conner, 515 U.S. 472, 484 (1995). Here, Plaintiff pleads no facts to suggest

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how Defendants’ allegedly inadequate review or failure to consider inmate grievances

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restrained his freedom in any way, or subjected him to any “atypical” and “significant

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hardship.” Id. at 483–84.

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Accordingly, Plaintiff’s claims against Olson and Ramirez must be dismissed
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
C.

Named Defendants

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As to the remaining Defendants, the Court finds Plaintiff’s Complaint contains

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claims sufficient to survive the “low threshold” for proceeding past the sua sponte

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screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman, 680

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F.3d 1113, 1123 (9th Cir. 2012).

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Accordingly, the Court will direct the U.S. Marshal to effect service upon the named

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Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall

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issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3)

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(“[T]he court may order that service be made by a United States marshal or deputy marshal

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. . . if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).

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CONCLUSION

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Good cause appearing, the Court:

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GRANTS Plaintiff’s IFP Motion (ECF No. 2);

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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 monthly

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

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

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

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SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

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THIS ACTION;
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Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001;

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

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DISMISSES Defendants Olson, Ramirez and Lewis based on Plaintiff’s

failure to state a claim against them pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b);

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DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No.

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1) upon the remaining named Defendants and forward it to Plaintiff along with a blank

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U.S. Marshal Form 285 for each of these named Defendants. In addition, the Clerk will

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provide Plaintiff with a certified copy of this Order, a certified copy of his Complaint, and

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the summons so that he may serve these Defendants. Upon receipt of this “IFP Package,”

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Plaintiff must complete the Form 285s as completely and accurately as possible, and return

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them to the United States Marshal according to the instructions the Clerk provides in the

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letter accompanying his IFP package;

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ORDERS the U.S. Marshal to serve a copy of the Complaint and summons

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upon the named Defendants as directed by Plaintiff on the USM Form 285s provided to

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him. All costs of that service will be advanced by the United States. See 28 U.S.C.

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§ 1915(d); Fed. R. Civ. P. 4(c)(3);

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ORDERS the named and served Defendants to reply to Plaintiff’s Complaint

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within the time provided by the applicable provisions of Federal Rule of Civil Procedure

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12(a). See 42 U.S.C. § 1997e(g)(2) (noting that while a defendant may occasionally be

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permitted to “waive the right to reply to any action brought by a prisoner confined in any

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jail, prison, or other correctional facility under section 1983,” once the Court has conducted

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its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has

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made a preliminary determination based on the face on the pleading alone that Plaintiff has

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a “reasonable opportunity to prevail on the merits,” the defendant is required to respond);

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and

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ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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serve upon the named Defendants, or, if appearance has been entered by counsel, upon

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Defendants’ counsel, a copy of every further pleading, motion, or other document
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submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must

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include with every original document he seeks to file with the Clerk of the Court, a

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certificate stating the manner in which a true and correct copy of that document has been

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was served on Defendants or their counsel, and the date of that service. See Civ. L.R. 5.2.

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Any document received by the Court which has not been properly filed with the Clerk or

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which fails to include a Certificate of Service upon Defendants may be disregarded.

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IT IS SO ORDERED.

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Dated: August 15, 2016

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