Gerald L. Tucker v. Department of Correction et al

Filing 17

ORDER: 1) granting 16 Motion for Leave to Proceed in forma pauperis; and 2) Dismissing Complaint for Failing to State a Claim and as Frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). The Secretary CDCR, or his designe e, is ordered to collect from prison trust account the $350 balance of the filing 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 an d 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 1/17/2017. (All non-registered users served via U.S. Mail Service)(§ 1983 Complaint sent to Plaintiff)(kcm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 GERALD TUCKER, CDCR #Ak-1434, ORDER: Plaintiff, 13 14 Case No.: 3:16-cv-01846-JLS-PCL vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS (ECF No. 16); AND 15 16 17 DEPARTMENT OF CORRECTIONS; DANIEL PARAMO, 2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM AND AS FRIVOLOUS PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B)(ii) AND 1915A(b)(1) Defendants. 18 19 20 21 22 23 Gerald Tucker, (“Plaintiff”), currently incarcerated at the Richard J. Donovan 24 Correctional Facility (“RJD”) located in San Diego, California, and proceeding pro se, 25 has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) 26 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when 27 he filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) 28 pursuant to 28 U.S.C. § 1915(a) (ECF No. 14.) 1 3:16-cv-01846-JLS-PCL 1 I. Motion to Proceed IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if a prisoner, like Plaintiff, is granted 8 leave to proceed IFP, he remains obligated to pay the entire fee in “increments,” see 9 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action 10 is ultimately dismissed, see 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 11 844, 847 (9th Cir. 2002). 12 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), 13 a prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund 14 account statement (or institutional equivalent) for the prisoner for the six-month period 15 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 16 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 17 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 18 for the past six months, or (b) the average monthly balance in the account for the past six 19 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 20 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects 21 subsequent payments, assessed at 20% of the preceding month’s income, in any month in 22 which the prisoner’s account exceeds $10, and forwards those payments to the Court until 23 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 24 25 26 1 27 28 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. 2 3:16-cv-01846-JLS-PCL 1 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 2 account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. Andrews, 3 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement and it shows 4 that he has a current available balance of zero. See 28 U.S.C. § 1915(b)(4) (providing that 5 “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil 6 action or criminal judgment for the reason that the prisoner has no assets and no means by 7 which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 8 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 9 solely on a “failure to pay . . . due to the lack of funds available to him when payment is 10 ordered.”). 11 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 14) and 12 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 13 balance of the filing fees mandated will be collected by the California Department of 14 Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court pursuant 15 to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 16 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 17 A. 18 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a Standard of Review 19 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 20 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 21 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 22 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 23 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 24 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 25 the targets of frivolous or malicious suits need not bear the expense of responding.’” 26 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 27 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 28 3 3:16-cv-01846-JLS-PCL 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 4 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 5 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 7 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 8 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 9 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 11 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 12 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 13 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 14 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 15 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 16 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 17 (9th Cir. 2009). 18 B. 19 Plaintiff’s Complaint is difficult to decipher as many of the claims Plaintiff is Rule 8 20 attempting to allege are disjointed and incomprehensible. Rule 8 of the Federal Rules of 21 Civil Procedure provides that in order to state a claim for relief in a pleading it must 22 contain “a short and plain statement of the grounds for the court’s jurisdiction” and “a 23 short and plain statement of the claim showing that the pleader is entitled to relief.” 24 Fed.R.Civ.P. 8(a)(1) & (2). Here, the Court finds that Plaintiff’s Complaint falls short 25 of complying with Rule 8. 26 /// 27 /// 28 /// 4 3:16-cv-01846-JLS-PCL Plaintiff’s Duplicative claims 1 B. 2 While not entirely clear, Plaintiff appears to be alleging that the District Attorney 3 for Fresno County, along with various deputy district attorneys, detectives with the 4 Fresno Police Department and probation officers conspired to deprive Plaintiff of his 5 constitutional rights. (See Compl., at 2.) 6 These allegations are duplicative of an action Plaintiff previously filed in 2014 and 7 2015. See Tucker v. Cline, et al., E.D. Cal. Civil Case No. 1:13-cv-00400-AWI-BAM; 8 Tucker v. Cline, et al., E.D. Cal. Civil Case No. 1:15-cv-00857-AWI-BAM. A court 9 “‘may take notice of proceedings in other courts, both within and without the federal 10 judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v. 11 Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 12 F.3d 801, 803 n.2 (9th Cir. 2002)). A prisoner’s complaint is considered frivolous under 28 U.S.C. §§ 1915(e)(2) & 13 14 1915A(b)(1) if it “merely repeats pending or previously litigated claims.” Cato v. United 15 States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) 16 (citations and internal quotations omitted). Because Plaintiff is already litigating these 17 claims in the above referenced Eastern District actions, the Court DISMISSES these 18 claims as duplicative pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)(1). See Cato, 70 19 F.3d at 1105 n.2; Resnick, 213 F.3d at 446 n.1. 20 C. 21 Again, while Plaintiff’s Complaint is not entirely clear, he has attached a letter that Freedom of Association 22 he purportedly wrote to the Federal Bureau of Investigation in 2015 in which he 23 complains of his brother and sister-in-law being removed from his list of approved 24 visitors. (See Compl., at 5–6.) It is not clear at which prison these alleged events took 25 place. 26 Incarceration by necessity restricts the scope of a prisoner’s associational rights. 27 Overton v. Bazzetta, 539 U.S. 126, 131–32 (2003); Rizzo v. Dawson, 778 F.2d 527, 532 28 (9th Cir. 1985). Therefore, a regulation that impinges on an inmate’s First Amendment 5 3:16-cv-01846-JLS-PCL 1 rights “is valid if it is reasonably related to legitimate penological interests.” Turner v. 2 Safley, 482 U.S. 78, 89 (1987); see also Beard v. Banks, 548 U.S. 521, 526 (2006). 3 Thus, in order to state a First Amendment freedom of association claim, Plaintiff 4 must plead facts sufficient to show how or why the removal of certain individuals from 5 his approved visitor list do not serve any legitimate penological interest. See Turner, 482 6 U.S. at 89–90. 7 Here, Plaintiff’s Complaint fails to include any factual content to show that that 8 ban on certain visitors serves no legitimate penological purpose. Turner, 482 U.S at 89; 9 see also Iqbal, 556 U.S. at 678. However, even if Plaintiff did allege prison officials 10 decision to remove certain family members from his approved visitor list served no 11 legitimate penological purpose, courts nevertheless “accord substantial deference to the 12 professional judgment of prison administrators, who bear a significant responsibility for 13 defining the legitimate goals of a corrections system and for determining the most 14 appropriate means to accomplish them,” Overton, 539 U.S. at 132, and “[t]he burden . . . 15 is not on the State to prove the validity of [a] prison regulation[] but on the prisoner to 16 disprove it.” Id. (citing Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 17 119, 128 (1977)). 18 Thus, because Plaintiff offers no “factual content that allows the court to draw the 19 reasonable inference” that any specific prison official was in violation of his First 20 Amendment rights in the absence of any legitimate penological purpose, see Iqbal, 556 21 U.S. at 678; Turner, 482 U.S at 89, the Court finds these claims subject to sua sponte 22 dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. See Lopez, 203 F.3d at 1126- 23 27; Rhodes, 621 F.3d at 1004. 24 D. 25 Because Plaintiff has now been provided with notice of his Complaint’s Leave to Amend 26 deficiencies, the Court will grant him leave to amend. See Rosati v. Igbinoso, 791 F.3d 27 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint 28 without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely 6 3:16-cv-01846-JLS-PCL 1 clear that the deficiencies of the complaint could not be cured by amendment.’”) (quoting 2 Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 3 III. Conclusion and Order 4 Good cause appearing, the Court: 5 1. 6 (ECF No. 14). 7 2. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) ORDERS the Secretary of the CDCR, or his designee, to collect from 8 Plaintiff’s trust account the $350 owed in monthly payments in an amount equal to 9 twenty percent (20%) of the preceding month’s income to the Clerk of the Court each 10 time the amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). 11 ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND 12 NUMBER ASSIGNED TO THIS ACTION. 13 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott 14 Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 15 942883, Sacramento, California, 94283-0001. 16 4. DISMISSES Plaintiff’s Complaint in its entirety as frivolous and for failing 17 to state a claim upon which relief may be granted pursuant to 28 U.S.C. 18 § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and GRANTS him forty-five (45) days leave 19 from the date of this Order in which to file an Amended Complaint which cures all the 20 deficiencies of pleading noted. Plaintiff’s Amended Complaint must be complete by itself 21 without reference to his original pleading, and must comply with S.D. CAL. CIVLR 8.2(a). 22 Defendants not named and any claim not re-alleged in his Amended Complaint will be 23 considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 24 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes 25 the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that 26 claims dismissed with leave to amend which are not re-alleged in an amended pleading 27 may be “considered waived if not repled.”). 28 7 3:16-cv-01846-JLS-PCL 1 2 3 4 5. The Clerk of Court IS DIRECTED to mail Plaintiff a copy of a court approved form § 1983 complaint. IT IS SO ORDERED. Dated: January 17, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 3:16-cv-01846-JLS-PCL

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