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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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, 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, 13 vs. 14 15 16 DEPARTMENT OF CORRECTION; DANIEL PARAMO, 17 Defendants. 18 19 20 21 I. Procedural History 22 On July 12, 2016, Plaintiff Gerald Tucker, currently incarcerated at the Richard J. 23 Donovan Correctional Facility (“RJD”) located in San Diego, California, and proceeding 24 pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1.) 25 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when he 26 filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) 27 pursuant to 28 U.S.C. § 1915(a) (ECF No. 14). 28 1 3:16-cv-01846-JLS-PCL 1 On January 17, 2017, the Court granted Plaintiff’s Motion to Proceed IFP but 2 simultaneously dismissed his Complaint for failing to state a claim and as frivolous 3 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. (ECF No. 17, at 7–8.) Plaintiff was 4 granted leave to file an amended complaint in order to correct the deficiencies of pleading 5 found in his original Complaint. (Id.) On February 27, 2017, Plaintiff has filed what 6 appears to be his First Amended Complaint (“FAC”). (ECF No. 18.) 7 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 8 A. 9 Because Plaintiff is a prisoner and is proceeding IFP, his FAC requires a pre-answer 10 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the 11 Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is 12 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 13 immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 14 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 15 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 16 targets of frivolous or malicious suits need not bear the expense of responding.’” 17 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 18 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). Standard of Review 19 “The standard for determining whether a plaintiff has failed to state a claim upon 20 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 21 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 22 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 23 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 24 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 25 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 26 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 27 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 28 2 3:16-cv-01846-JLS-PCL 1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 2 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 3 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 4 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 5 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 6 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 7 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 8 B. 9 Once again, Plaintiff’s FAC is difficult to decipher as many of the claims Plaintiff is 10 attempting to allege are disjointed and incomprehensible. Rule 8 of the Federal Rules of 11 Civil Procedure provides that in order to state a claim for relief in a pleading it must contain 12 “a short and plain statement of the grounds for the court’s jurisdiction” and “a short and 13 plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 14 8(a)(1) & (2). 15 Rule 8. Rule 8 Here, the Court finds that Plaintiff’s FAC falls short of complying with 16 C. 17 While not entirely clear, it appears that Plaintiff is alleging that officials with the 18 California Department of Correction and Rehabilitation (“CDCR”) are under “suspicion of 19 murder” and are “covering up” the alleged murder of his brother and sister-in-law. (FAC 20 at 1–2.) There are no comprehensible allegations contained anywhere in Plaintiff’s FAC. 21 “[A] complaint, containing as it does both factual allegations and legal conclusions, is 22 frivolous where it lacks an arguable basis either in law or in fact. . . . [The] term ‘frivolous,’ 23 when applied to a complaint, embraces not only the inarguable legal conclusion, but also 24 the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A pleading 25 is “factual[ly] frivolous[ ]” under § 1915(e)(2) and § 1915A(b)(1) if “the facts alleged rise 26 to the level of the irrational or the wholly incredible, whether or not there are judicially 27 noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 28 (1992). When determining whether a complaint is frivolous, the court need not accept the Plaintiff’s Claims 3 3:16-cv-01846-JLS-PCL 1 allegations as true, but must “pierce the veil of the complaint’s factual allegations,” Neitzke, 2 490 U.S. at 327, to determine whether they are “‘fanciful,’ ‘fantastic,’ [or] ‘delusional,’” 3 Denton, 504 U.S. at 33 (quoting Neitzke, 490 U.S. at 325–28). 4 Applying these standards to the allegations in Plaintiff’s FAC, the Court finds that 5 Plaintiff’s claims are frivolous pursuant to 28 U.S.C. § 1915(e)(2) § 1915A(b)(1). See 6 Nordstrom, 762 F.3d at 920 n.1. 7 D. 8 To the extent that Plaintiff alleges his brother and sister-in-law were wrongfully 9 removed from his list of approved visitors and thus, violates his constitutional rights, he 10 Freedom of Association has failed to state a claim. (See FAC at 2, 4–5.) 11 Incarceration by necessity restricts the scope of a prisoner’s associational rights. 12 Overton v. Bazzetta, 539 U.S. 126, 131–32 (2003); Rizzo v. Dawson, 778 F.2d 527, 532 13 (9th Cir. 1985). Therefore, a regulation that impinges on an inmate’s First Amendment 14 rights “is valid if it is reasonably related to legitimate penological interests.” Turner v. 15 Safley, 482 U.S. 78, 89 (1987); see also Beard v. Banks, 548 U.S. 521, 526 (2006). 16 Thus, in order to state a First Amendment freedom of association claim, Plaintiff 17 must plead facts sufficient to show how or why the removal of certain individuals from his 18 approved visitor list do not serve any legitimate penological interest. See Turner, 482 U.S. 19 at 89–90. 20 Here, Plaintiff’s FAC fails to include any factual content to show that the ban on 21 certain visitors serves no legitimate penological purpose. Turner, 482 U.S at 89; see also 22 Iqbal, 556 U.S. at 678. However, even if Plaintiff did allege prison officials’ decision to 23 remove certain family members from his approved visitor list served no legitimate 24 penological purpose, courts nevertheless “accord substantial deference to the professional 25 judgment of prison administrators, who bear a significant responsibility for defining the 26 legitimate goals of a corrections system and for determining the most appropriate means to 27 accomplish them,” Overton, 539 U.S. at 132, and “[t]he burden . . . is not on the State to 28 prove the validity of [a] prison regulation[] but on the prisoner to disprove it.” Id. (citing 4 3:16-cv-01846-JLS-PCL 1 Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 128 (1977)). 2 Thus, because Plaintiff offers no “factual content that allows the court to draw the 3 reasonable inference” that any specific prison official was in violation of his First 4 Amendment rights in the absence of any legitimate penological purpose, see Iqbal, 556 5 U.S. at 678; Turner, 482 U.S at 89, the Court finds these claims subject to sua sponte 6 dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. See Lopez, 203 F.3d at 1126– 7 27; Rhodes, 621 F.3d at 1004. 8 III. 9 10 11 12 Conclusion and Order Good cause appearing, the Court: 1) 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); 2) DENIES Plaintiff further leave to amend as futile. See Cahill v. Liberty Mut. 13 Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an abuse of 14 discretion where further amendment would be futile); Gonzalez, 759 F.3d at 1116 (district 15 court’s discretion in denying amendment is “particularly broad” when it has previously 16 granted leave to amend); 17 3) CERTIFIES that an appeal of this final Order of dismissal would be frivolous 18 and therefore, not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. 19 United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 20 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not 21 be frivolous); and 22 4) DIRECTS the Clerk of Court to terminate this civil action and close the file. 23 24 25 IT IS SO ORDERED. Dated: April 14, 2017 26 27 28 5 3:16-cv-01846-JLS-PCL

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