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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GERALD TUCKER,
CDCR #Ak-1434,

ORDER:

Plaintiff,

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Case No.: 3:16-cv-01846-JLS-PCL

vs.

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
(ECF No. 16); AND

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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.

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Gerald Tucker, (“Plaintiff”), currently incarcerated at the Richard J. Donovan

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Correctional Facility (“RJD”) located in San Diego, California, and proceeding pro se,

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has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.)

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Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when

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he filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a) (ECF No. 14.)
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3:16-cv-01846-JLS-PCL

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I.

Motion to Proceed IFP

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All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a).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 v.

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

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

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Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action

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is ultimately dismissed, see 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d

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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 submit a “certified copy of the trust fund

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

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immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.

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King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the

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Court assesses an initial payment of 20% of (a) the average monthly deposits in the account

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

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

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28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects

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

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which the prisoner’s account exceeds $10, and forwards those payments to the Court until

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the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

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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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3:16-cv-01846-JLS-PCL

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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 S.D. Cal. CivLR 3.2. Andrews,

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398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement and it shows

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that he has a current available balance of zero. See 28 U.S.C. § 1915(b)(4) (providing that

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“[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil

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action or criminal judgment for the reason that the prisoner has no assets and no means by

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which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C.

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§ 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based

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solely on a “failure to pay . . . due to the lack of funds available to him when payment is

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ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 14) and

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assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350

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balance of the filing fees mandated will be collected by the California Department of

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

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

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II.

Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

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A.

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Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a

Standard of Review

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pre-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 “contain sufficient factual matter, accepted

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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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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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B.

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

Rule 8

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

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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 short

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of complying with Rule 8.

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Plaintiff’s Duplicative claims

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B.

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While not entirely clear, Plaintiff appears to be alleging that the District Attorney

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for Fresno County, along with various deputy district attorneys, detectives with the

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Fresno Police Department and probation officers conspired to deprive Plaintiff of his

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constitutional rights. (See Compl., at 2.)

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These allegations are duplicative of an action Plaintiff previously filed in 2014 and

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2015. See Tucker v. Cline, et al., E.D. Cal. Civil Case No. 1:13-cv-00400-AWI-BAM;

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Tucker v. Cline, et al., E.D. Cal. Civil Case No. 1:15-cv-00857-AWI-BAM. A court

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“‘may take notice of proceedings in other courts, both within and without the federal

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judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v.

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Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285

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F.3d 801, 803 n.2 (9th Cir. 2002)).
A prisoner’s complaint is considered frivolous under 28 U.S.C. §§ 1915(e)(2) &

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1915A(b)(1) if it “merely repeats pending or previously litigated claims.” Cato v. United

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States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d))

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(citations and internal quotations omitted). Because Plaintiff is already litigating these

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claims in the above referenced Eastern District actions, the Court DISMISSES these

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claims as duplicative pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)(1). See Cato, 70

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F.3d at 1105 n.2; Resnick, 213 F.3d at 446 n.1.

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C.

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Again, while Plaintiff’s Complaint is not entirely clear, he has attached a letter that

Freedom of Association

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he purportedly wrote to the Federal Bureau of Investigation in 2015 in which he

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complains of his brother and sister-in-law being removed from his list of approved

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visitors. (See Compl., at 5–6.) It is not clear at which prison these alleged events took

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place.

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Incarceration by necessity restricts the scope of a prisoner’s associational rights.

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Overton v. Bazzetta, 539 U.S. 126, 131–32 (2003); Rizzo v. Dawson, 778 F.2d 527, 532

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(9th Cir. 1985). Therefore, a regulation that impinges on an inmate’s First Amendment
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rights “is valid if it is reasonably related to legitimate penological interests.” Turner v.

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Safley, 482 U.S. 78, 89 (1987); see also Beard v. Banks, 548 U.S. 521, 526 (2006).

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Thus, in order to state a First Amendment freedom of association claim, Plaintiff

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must plead facts sufficient to show how or why the removal of certain individuals from

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his approved visitor list do not serve any legitimate penological interest. See Turner, 482

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U.S. at 89–90.

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Here, Plaintiff’s Complaint fails to include any factual content to show that that

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ban on certain visitors serves no legitimate penological purpose. Turner, 482 U.S at 89;

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see also Iqbal, 556 U.S. at 678. However, even if Plaintiff did allege prison officials

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decision to remove certain family members from his approved visitor list served no

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legitimate penological purpose, courts nevertheless “accord substantial deference to the

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professional judgment of prison administrators, who bear a significant responsibility for

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defining the legitimate goals of a corrections system and for determining the most

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appropriate means to accomplish them,” Overton, 539 U.S. at 132, and “[t]he burden . . .

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is not on the State to prove the validity of [a] prison regulation[] but on the prisoner to

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disprove it.” Id. (citing Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S.

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119, 128 (1977)).

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Thus, because Plaintiff offers no “factual content that allows the court to draw the

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reasonable inference” that any specific prison official was in violation of his First

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Amendment rights in the absence of any legitimate penological purpose, see Iqbal, 556

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U.S. at 678; Turner, 482 U.S at 89, the Court finds these claims subject to sua sponte

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dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. See Lopez, 203 F.3d at 1126-

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27; Rhodes, 621 F.3d at 1004.

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D.

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Because Plaintiff has now been provided with notice of his Complaint’s

Leave to Amend

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deficiencies, the Court will grant him leave to amend. See Rosati v. Igbinoso, 791 F.3d

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1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint

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without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely
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clear that the deficiencies of the complaint could not be cured by amendment.’”) (quoting

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Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)).

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III.

Conclusion and Order

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Good cause appearing, the Court:

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1.

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(ECF No. 14).

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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

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Plaintiff’s trust account the $350 owed in monthly payments in an amount equal to

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twenty percent (20%) of the preceding month’s income to the Clerk of the Court each

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

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ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND

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NUMBER ASSIGNED TO THIS ACTION.

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3.

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

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Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box

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942883, Sacramento, California, 94283-0001.

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DISMISSES Plaintiff’s Complaint in its entirety as frivolous and for failing

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

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§ 1915(e)(2)(B)(ii) and § 1915A(b)(1), and GRANTS him forty-five (45) days leave

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from the date of this Order in which to file an Amended Complaint which cures all the

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deficiencies of pleading noted. Plaintiff’s Amended Complaint must be complete by itself

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without reference to his original pleading, and must comply with S.D. CAL. CIVLR 8.2(a).

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Defendants not named and any claim not re-alleged in his 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.

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

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