Gerald L. Tucker v. Department of Correction et al

Filing 19

ORDER DISMISSING First Amended Complaint as Frivolous And For Failing to State a Claim Pursuant to 28 U.S.C 1915(e)(2)(B) And 1915A(b). It is ordered that the Court denies Plaintiff further leave to amend as futile; Certifies that an appeal of thi s final Order of dismissal would be frivolous and therefore, not taken in good faith pursuant to 28 U.S.C. 1915(a)(3); and the civil action is terminated. Signed by Judge Janis L. Sammartino on 4/14/2017.(All non-registered users served via U.S. Mail Service)(dxj)

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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,

Case No.: 3:16-cv-01846-JLS-PCL
ORDER DISMISSING FIRST
AMENDED COMPLAINT AS
FRIVOLOUS AND FOR FAILING
TO STATE A CLAIM PURSUANT
TO 28 U.S.C. §§ 1915(e)(2)(B)
AND 1915A(b)

Plaintiff,

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vs.

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DEPARTMENT OF CORRECTION;
DANIEL PARAMO,

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Defendants.

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I.

Procedural History

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On July 12, 2016, Plaintiff Gerald Tucker, currently incarcerated at the Richard J.

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

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pro se, 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 he

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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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On January 17, 2017, the Court granted Plaintiff’s Motion to Proceed IFP but

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simultaneously dismissed his Complaint for failing to state a claim and as frivolous

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pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. (ECF No. 17, at 7–8.) Plaintiff was

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granted leave to file an amended complaint in order to correct the deficiencies of pleading

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found in his original Complaint. (Id.) On February 27, 2017, Plaintiff has filed what

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appears to be his First Amended Complaint (“FAC”). (ECF No. 18.)

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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 FAC requires a pre-answer

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

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Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is

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frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

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

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28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

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

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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)).

Standard of Review

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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 F.3d

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

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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 relief

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

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

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the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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B.

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Once again, Plaintiff’s FAC is difficult to decipher as many of the claims Plaintiff is

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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 contain

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

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plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P.

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8(a)(1) & (2).

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Rule 8.

Rule 8

Here, the Court finds that Plaintiff’s FAC falls short of complying with

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C.

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While not entirely clear, it appears that Plaintiff is alleging that officials with the

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California Department of Correction and Rehabilitation (“CDCR”) are under “suspicion of

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murder” and are “covering up” the alleged murder of his brother and sister-in-law. (FAC

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at 1–2.) There are no comprehensible allegations contained anywhere in Plaintiff’s FAC.

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“[A] complaint, containing as it does both factual allegations and legal conclusions, is

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frivolous where it lacks an arguable basis either in law or in fact. . . . [The] term ‘frivolous,’

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when applied to a complaint, embraces not only the inarguable legal conclusion, but also

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the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A pleading

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is “factual[ly] frivolous[ ]” under § 1915(e)(2) and § 1915A(b)(1) if “the facts alleged rise

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to the level of the irrational or the wholly incredible, whether or not there are judicially

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noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33

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(1992). When determining whether a complaint is frivolous, the court need not accept the

Plaintiff’s Claims

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allegations as true, but must “pierce the veil of the complaint’s factual allegations,” Neitzke,

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490 U.S. at 327, to determine whether they are “‘fanciful,’ ‘fantastic,’ [or] ‘delusional,’”

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Denton, 504 U.S. at 33 (quoting Neitzke, 490 U.S. at 325–28).

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Applying these standards to the allegations in Plaintiff’s FAC, the Court finds that

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Plaintiff’s claims are frivolous pursuant to 28 U.S.C. § 1915(e)(2) § 1915A(b)(1). See

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Nordstrom, 762 F.3d at 920 n.1.

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D.

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To the extent that Plaintiff alleges his brother and sister-in-law were wrongfully

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removed from his list of approved visitors and thus, violates his constitutional rights, he

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Freedom of Association

has failed to state a claim. (See FAC at 2, 4–5.)

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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 his

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

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at 89–90.

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Here, Plaintiff’s FAC fails to include any factual content to show that the ban on

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

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Iqbal, 556 U.S. at 678. However, even if Plaintiff did allege prison officials’ decision to

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remove certain family members from his approved visitor list served no legitimate

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

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judgment of prison administrators, who bear a significant responsibility for defining the

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legitimate goals of a corrections system and for determining the most appropriate means to

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accomplish them,” Overton, 539 U.S. at 132, and “[t]he burden . . . is not on the State to

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prove the validity of [a] prison regulation[] but on the prisoner to disprove it.” Id. (citing
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Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 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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III.

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Conclusion and Order
Good cause appearing, the Court:
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DISMISSES Plaintiff’s First Amended Complaint as frivolous and for failing

to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b);
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DENIES Plaintiff further leave to amend as futile. See Cahill v. Liberty Mut.

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Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an abuse of

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discretion where further amendment would be futile); Gonzalez, 759 F.3d at 1116 (district

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court’s discretion in denying amendment is “particularly broad” when it has previously

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granted leave to amend);

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3)

CERTIFIES that an appeal of this final Order of dismissal would be frivolous

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and therefore, not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v.

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United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir.

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1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not

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be frivolous); and

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4)

DIRECTS the Clerk of Court to terminate this civil action and close the file.

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IT IS SO ORDERED.
Dated: April 14, 2017

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