Monarrez v. California Department of Corrections and Rehabilitation et al

Filing 4

ORDER: (1) Granting 3 Motion for Leave to Proceed In Forma Pauperis; And (2) Dismissing Complaint For Failing To State A Claim. It is ordered that the Secretary CDCR, or his designee, is ordered to collect from prison trust account the $35 0 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 and forward payments to the Clerk of the Court each time the a mount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR) The Court dismisses Plaintiff's Complaint for failing to state a claim upon which relief may be granted purs uant to 28 U.S.C. 1915(e)(2) (B)(ii) and 1915A(b)(1), and grants him 45 days leave from the date of this Order in which to file an Amended Complaint which cures the deficiencies of pleading noted. Plaintiff's Amended Complaint must be complete by itself without reference to his original pleading. If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter a final Order dismissing this civil action based both on Plaintiff's failure to state a claim. Signed by Judge Janis L. Sammartino on 2/23/2017. (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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EZEQUIEL MONARREZ,
CDCR #V-55180,
vs.

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ORDER:
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS;
AND (2) DISMISSING COMPLAINT
FOR FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND § 1915A(b)

Plaintiff,

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Case No.: 3:16-cv-02712-JLS-MDD

CALIFORNIA DEP'T OF
CORRECTIONS AND
REHABILITATION; JEFFREY BEARD;
C. HUBBARD; A. MURPHY;
INSTITUTION GANG
INVESTIGATORS UNIT; DOES 1
THROUGH 50,
Defendants.

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Ezequiel Monarrez (“Plaintiff”), currently incarcerated at the California

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Correctional Institution in Tehachapi, California, and proceeding pro se, filed a civil rights

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complaint pursuant to 42 U.S.C. § 1983 in which he seeks to sue various prison officials

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for constitutional violations that are alleges to have occurred at Centinela State Prison

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(“CEN”) in 2007 and 2010. (ECF No. 1.)

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3:16-cv-02712-JLS-MDD

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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. 3).

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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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$400.1 See 28 U.S.C. § 1914(a). The 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, a prisoner who is granted leave to

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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

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

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

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See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

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“certified copy of the trust fund account statement (or institutional equivalent) for . . . the

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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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trust account statement, the Court assesses an initial payment of 20% of (a) the average

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

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in the account for the past six months, whichever is greater, unless the prisoner has no

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assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody

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of the prisoner then collects subsequent payments, assessed at 20% of the preceding

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In addition to the $350 statutory fee, civil litigants 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, § 14 (eff. June 1, 2016)). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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month’s income, in any month in which his account exceeds $10, and forwards those

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payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce,

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136 S. Ct. at 629.

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In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate

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Statement Report , as well as a prison certificate (ECF No. 3). See 28 U.S.C. § 1915(a)(2);

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S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These documents show that while

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Plaintiff had an average monthly balance of $3.27 and average monthly deposits of $8.19

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to his account over the 6-month period immediately preceding the filing of his Complaint,

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he had an available balance of $9.36 at the time he filed it. Thus, the Court assesses

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Plaintiff’s initial partial filing fee to be $1.64 pursuant to 28 U.S.C. § 1915(b)(1), but

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acknowledges he may be unable to pay even that small initial fee at this time. See 28 U.S.C.

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§ 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a

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civil action or appealing a civil action or criminal judgment for the reason that the prisoner

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has no assets and no means by which to pay the initial partial filing fee”); Bruce, 136 S.

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Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-

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valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . .

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

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 3) and

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directs the Secretary of the California Department of Corrections and Rehabilitation

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(“CDCR”), or his designee, to collect the entire $350 balance of the filing fees required by

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

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payment provisions set forth in 28 U.S.C. § 1915(b)(1). See id.

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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 requires a pre-

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

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

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

Standard of Review

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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)).

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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 to “contain sufficient factual matter,

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

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556 U.S. 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).
Plaintiff’s Allegations

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B.

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Plaintiff alleges that in March of 2007, he was housed at CEN. (See Compl. at 10.)

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While housed there, Plaintiff claims he witnessed “a friend (a Hispanic) getting stabbed

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and brutally beaten at the front of his cell door” by another inmate. (Id.) Plaintiff yelled

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to the attacker but a correctional officer standing nearby believed that Plaintiff was yelling

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to him. (Id.) As a result, this correctional officer “filed false charges” against Plaintiff
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alleging Plaintiff threatened him. (Id.) Following a disciplinary hearing, Plaintiff was

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placed in the “ASU”2 for six months. (Id.)

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In 2008, Plaintiff was housed at Corcoran State Prison (“CSP-COR”) where he was

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visited by his wife. (Id. at 11.) Plaintiff claims his wife was issued a warrant and subjected

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to a “cavity searching” which Plaintiff claims caused his wife to develop a “urinary tract

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infection.” (Id.) Because Plaintiff filed a grievance regarding the search of his wife, he

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alleges that he was “placed into a cage for several hours without food and water,” and his

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property was destroyed including “photos of him and his wife.” (Id.)

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Finally, on December 8, 2010, Plaintiff claims he was “falsely validated as a

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Mexican Mafia Affiliate” and as a result, he spent “six hard years in the SHU.”3 (Id. at

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13.) Plaintiff alleges correctional officers validated him as a gang member in retaliation

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for the grievances he filed following the search of his wife in 2008. (Id.)

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Plaintiff claims Defendants violated his First, Fourth, Eighth and Fourteenth

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Amendment rights, as well as various State Law claims. (Id. at 4.) He seeks $6,000,000

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in compensatory damages and $6,000,000 in punitive damages, along with “declaratory

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relief to be presented at later date.” (Id. at 7.)

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C.

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“A claim may be dismissed [for failing to state a claim] on the ground that it is barred

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by the applicable statute of limitations only when ‘the running of the statute is apparent on

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the face of the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592

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F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992,

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997 (9th Cir. 2006)). “‘A complaint cannot be dismissed unless it appears beyond doubt

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that the plaintiff can prove no set of facts that would establish the timeliness of the claim.’”

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Id. (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)); see also

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Cervantes v. City of San Diego, 5 F.3d 1273, 1276-77 (9th Cir. 1993) (where the running

Statute of Limitations

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“ASU” is an acronym for “Administrative Segregation Unit.”
“SHU” is an acronym for “Segregated Housing Unit.”
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of the statute of limitations is apparent on the face of a complaint, dismissal for failure to

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state a claim is proper, so long as Plaintiff is provided an opportunity to amend in order to

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allege facts which, if proved, might support tolling); see also Tahoe-Sierra Pres. Council,

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Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 788 (9th Cir. 2000) (court may raise

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the defense of statute of limitations sua sponte), overruled on other grounds by Gonzalez

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v. Arizona, 677 F.3d 383, 389 (9th Cir. 2011) (en banc); Hughes v. Lott, 350 F.3d 1157,

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1163 (11th Cir. 2003) (upholding sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B) of

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prisoner’s time-barred complaint).

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Because section 1983 contains no specific statute of limitation, federal courts apply

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the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393

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F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004);

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Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Before 2003, California’s statute of

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limitations was one year. Jones, 393 F.3d at 927. Effective January 1, 2003, the limitations

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period was extended to two. Id. (citing CAL. CIV. PROC. CODE § 335.1). The law of the

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forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 394 (2007) (citing Hardin

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v. Straub, 490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 927 (noting that in actions

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where the federal court borrows the state statute of limitation, the federal court also borrows

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all applicable provisions for tolling the limitations period found in state law).

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Under California law, the statute of limitations for prisoners serving less than a life

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sentence is tolled for two years. CAL. CIV. PROC. CODE § 352.1(a); Johnson v. California,

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207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 U.S. 499 (2005).

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Accordingly, the effective statute of limitations for most California prisoners is three years

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for claims accruing before January 1, 2003 (one year limitations period plus two year

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statutory tolling), and four years for claims accruing thereafter (two year limitations period

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plus two years statutory tolling). In addition, the limitations period for prisoners is tolled

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while the “prisoner completes the mandatory exhaustion process.” Brown v. Valoff, 422

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F.3d 926, 943 (9th Cir. 2005).

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Unlike the length of the limitations period, however, “the accrual date of a § 1983
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cause of action is a question of federal law that is not resolved by reference to state law.”

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Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543-44 (federal law governs when a § 1983

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cause of action accrues). “Under the traditional rule of accrual . . . the tort cause of action

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accrues, and the statute of limitation begins to run, when the wrongful act or omission

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results in damages.” Wallace, 549 U.S. at 391. Put another way, “[u]nder federal law, a

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claim accrues when the plaintiff knows or has reason to know of the injury which is the

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basis of the action.” Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174 F.3d 987, 991

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(9th Cir. 1999).

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Here, Plaintiff’s claims first accrued on March 4, 2007. (See Compl. at 1, 10.) Thus,

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assuming Plaintiff is not serving a life sentence, he is entitled to 2 years of statutory tolling

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pursuant to CAL. CIV. PROC. CODE § 352.1(a). Johnson, 207 F.3d at 654; see also Jones,

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393 F.3d at 928 n.5 (noting that “California courts have read out of the statute the

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qualification that the period of incarceration must be ‘for a term less than for life’ in order

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for a prisoner to qualify for tolling”)4. Consequently, based on the face of Plaintiff’s own

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pleading, it is clear Plaintiff’s claims fall outside California’s two-year statute of

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limitations, even including all presumed periods of tolling provided by statute. See

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Wallace, 591 U.S. at 391; Maldonado, 370 F.3d at 955; CAL. CODE CIV. PROC. § 335.1

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(tolling statute of limitations “for a maximum of 2 years” during a prisoner’s incarceration);

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Jones, 393 F.3d at 927; Valoff, 422 F.3d at 943.

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Finally, Plaintiff’s claims could be considered timely if, in his Complaint, he alleges

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facts sufficient to show the limitations period may be equitably tolled. See Cervantes, 5

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F.3d at 1276-77. Generally, federal courts also apply the forum state’s law regarding

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equitable tolling. Fink, 192 F.3d at 914; Bacon v. City of Los Angeles, 843 F.2d 372, 374

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(9th Cir. 1988). Under California law, however, Plaintiff must meet three conditions to

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Because Plaintiff does not provide any specific documentation or factual allegations relating to his
attempts at exhaustion of his administrative remedies, the Court cannot consider any tolling for the time
period Plaintiff was going through the process. Valoff, 422 F.3d at 943
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equitably toll the statute of limitations: (1) he must have diligently pursued his claim; (2)

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his situation must be the product of forces beyond his control; and (3) Defendants must not

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be prejudiced by the application of equitable tolling. See Hull v. Central Pathology Serv.

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Med. Clinic, 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994); Addison v. State of

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California, 21 Cal. 3d 313, 316-17 (Cal. 1978); Fink, 192 F.3d at 916.

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As currently pleaded, however, the Court finds Plaintiff has failed to plead any facts

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which, if proved, would support any plausible claim for equitable tolling. See Cervantes,

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5 F.3d at 1277; Iqbal, 556 U.S. at 679; Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th Cir.

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1993) (plaintiff carries the burden to plead facts which would give rise to equitable

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tolling); see also Kleinhammer v. City of Paso Robles, 385 Fed. App’x 642, 643 (9th Cir.

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2010).

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Accordingly, the Court finds the running of the statute of limitations is apparent on

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the face of Plaintiff’s Complaint, and therefore he has failed to state a claim upon which

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section 1983 relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b)(1);

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Von Saher, 592 F.3d at 969.

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D.

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Because Plaintiff is proceeding without counsel, and he has now been provided

Leave to Amend

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with notice of his Complaint’s deficiencies, the Court will grant him leave to amend. See

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Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not

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dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C.

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§ 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint

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could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th

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Cir. 2012)); Cervantes, 5 F.3d at 1277 (noting that a time-barred action may not

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ordinarily be dismissed at pleading without leave to amend unless “some fact, evident

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from the face of the complaint, support[s] the conclusion that the plaintiff could not

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prevail, as a matter of law, on the equitable tolling issue”).

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III.

Conclusion and Order

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Based on the foregoing, the Court:

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1)

GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 3).

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2)

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 the 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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MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

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THIS ACTION.

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3)

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

Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.
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DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

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relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and

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GRANTS him forty-five (45) days leave from the date of this Order in which to file an

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Amended Complaint which cures the deficiencies of pleading noted. Plaintiff’s Amended

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Complaint must be complete by itself without reference to his original pleading.

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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 the

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original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims

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dismissed with leave to amend which are not re-alleged in an amended pleading may be

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“considered waived if not repled”).

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If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter

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a final Order dismissing this civil action based both on Plaintiff’s failure to state a claim

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upon which § 1983 relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

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1915A(b)(1), and his failure to prosecute in compliance with a court order requiring

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amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does
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not take advantage of the opportunity to fix his complaint, a district court may convert the

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dismissal of the complaint into dismissal of the entire action.”).

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5)

The Clerk of Court is directed to mail Plaintiff a civil rights form complaint

for his use in amending.
IT IS SO ORDERED.
Dated: February 23, 2017

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