Miller v. Penish

Filing 3

ORDER Granting 2 Motion for Leave to Proceed in forma pauperis; and Dismissing Civil Action For Failure to State a Claim. The Secretary CDCR, or his designee, 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 and forward payments to the Clerk of the Court each time the amount in the account exc eeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR). The Court directs the Clerk of Court to close the file. Signed by Judge Anthony J. Battaglia on 3/22/17. (All non-registered users served via U.S. Mail Service)(dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 RUSSELL MILLER, Booking #16113441, Case No.: 3:16-cv-3078-AJB-MDD ORDER: Plaintiff, 13 vs. 14 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2] 15 16 DENNIS M. PENISH, AND Defendants. 17 3) DISMISSING CIVIL ACTION FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) 18 19 20 21 Russell H. Miller (“Plaintiff”), currently incarcerated at the Sierra Conservation 22 23 Camp in Jamestown, California, and proceeding pro se, has filed a civil rights complaint 24 pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has also filed a Motion to Proceed In 25 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 26 /// 27 /// 28 1 3:16-cv-3078-AJB-MDD 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 $400.1 See 28 U.S.C. § 1914(a). The 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, a prisoner who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 9 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 10 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 11 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 12 2002). 13 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 14 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 15 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 16 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 17 trust account statement, the Court assesses an initial payment of 20% of (a) the average 18 monthly deposits in the account for the past six months, or (b) the average monthly 19 balance in the account for the past six months, whichever is greater, unless the prisoner 20 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 21 custody of the prisoner then collects subsequent payments, assessed at 20% of the 22 preceding month’s income, in any month in which his account exceeds $10, and forwards 23 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 24 25 26 27 28 1 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. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:16-cv-3078-AJB-MDD 1 In support of his IFP Motion, Plaintiff has submitted a prison certificate. See ECF 2 No. 2 at 4; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. 3 These statements show Plaintiff has had no monthly deposits to his account, has carried 4 no balance over the six month period preceding the filing of his Complaint, and that his 5 current available balance is zero. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no 6 event shall a prisoner be prohibited from bringing a civil action or appealing a civil action 7 or criminal judgment for the reason that the prisoner has no assets and no means by 8 which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 9 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of 10 a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 11 available to him when payment is ordered.”). Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), 12 13 declines to “exact” any initial filing fee because his trust account statement shows he “has 14 no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary for the California 15 Department of Corrections and Rehabilitation to instead collect the entire $350 balance of 16 the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court 17 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 18 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 19 A. 20 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- Standard of Review 21 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 22 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 23 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 24 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 25 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 26 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 27 the targets of frivolous or malicious suits need not bear the expense of responding.’” 28 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted.) 3 3:16-cv-3078-AJB-MDD 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 “Section 1983 creates a private right of action against individuals who, acting 42 U.S.C. § 1983 20 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 21 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 22 substantive rights, but merely provides a method for vindicating federal rights elsewhere 23 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 24 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 25 deprivation of a right secured by the Constitution and laws of the United States, and (2) 26 that the deprivation was committed by a person acting under color of state law.” Tsao v. 27 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 28 /// 4 3:16-cv-3078-AJB-MDD 1 C. 2 Plaintiff’s claims arose when he was engaged in criminal proceedings in 2000. Statute of Limitations 3 (See Compl. at 1.) “A claim may be dismissed [for failing to state a claim] on the 4 ground that it is barred by the applicable statute of limitations only when ‘the running of 5 the statute is apparent on the face of the complaint.’” Von Saher v. Norton Simon 6 Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase 7 Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). “‘A complaint cannot be dismissed 8 unless it appears beyond doubt that the plaintiff can prove no set of facts that would 9 establish the timeliness of the claim.’” Id. (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 10 1204, 1206 (9th Cir. 1995)); see also Cervantes v. City of San Diego, 5 F.3d 1273, 1276- 11 77 (9th Cir. 1993) (where the running of the statute of limitations is apparent on the face 12 of a complaint, dismissal for failure to state a claim is proper, so long as Plaintiff is 13 provided an opportunity to amend in order to allege facts which, if proved, might support 14 tolling); see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 15 F.3d 764, 788 (9th Cir. 2000) (court may raise the defense of statute of limitations sua 16 sponte). 17 Because section 1983 contains no specific statute of limitation, federal courts apply 18 the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393 19 F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); 20 Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Before 2003, California’s statute of 21 limitations was one year. Jones, 393 F.3d at 927. Effective January 1, 2003, the 22 limitations period was extended to two years. Id. (citing CAL. CIV. PROC. CODE § 335.1). 23 The law of the forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 394 24 (2007) (citing Hardin v. Straub, 490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 927 25 (noting that in actions where the federal court borrows the state statute of limitation, the 26 federal court also borrows all applicable provisions for tolling the limitations period 27 found in state law). 28 /// 5 3:16-cv-3078-AJB-MDD 1 Under California law, the statute of limitations for prisoners serving less than a life 2 sentence is tolled for two years. CAL. CIV. PROC. CODE § 352.1(a); Johnson v. California, 3 207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 U.S. 499 (2005). 4 Accordingly, the effective statute of limitations for most California prisoners is three 5 years for claims accruing before January 1, 2003 (one year limitations period plus two 6 year statutory tolling), and four years for claims accruing thereafter (two year limitations 7 period plus two years statutory tolling). 8 Unlike the length of the limitations period, however, “the accrual date of a § 1983 9 cause of action is a question of federal law that is not resolved by reference to state law.” 10 Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543-44 (federal law governs when a 11 § 1983 cause of action accrues). “Under the traditional rule of accrual ... the tort cause of 12 action accrues, and the statute of limitation begins to run, when the wrongful act or 13 omission results in damages.” Wallace, 549 U.S. at 391. Put another way, “[u]nder 14 federal law, a claim accrues when the plaintiff knows or has reason to know of the injury 15 which is the basis of the action.” Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174 16 F.3d 987, 991 (9th Cir. 1999). 17 In this case, the “wrongful act” which is alleged to have caused Plaintiff harm 18 occurred nearly sixteen years before Plaintiff filed his Complaint in this action, and far 19 outside California’s statute of limitations, even including all presumed periods of tolling 20 provided by statute, or pending the exhaustion of any administrative remedies. Wallace, 21 591 U.S. at 391; see also Maldonado, 370 F.3d at 955; CAL. CODE CIV. PROC. § 335.1 22 (tolling statute of limitations “for a maximum of 2 years” during a prisoner’s 23 incarceration); Jones, 393 F.3d at 927; Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) 24 (finding that “the applicable statute of limitations must be tolled while a prisoner 25 completes the mandatory exhaustion process” required by 42 U.S.C. § 1997e(a)). 26 Specifically, Plaintiff claims his constitutional rights were violated during his 27 criminal proceedings in 2000. (See Compl. at 1, 3.) Therefore, he had “reason to know” 28 the basis of his cause of action in 2000, but did not file this case until December 16, 6 3:16-cv-3078-AJB-MDD 1 2 2016—well after the limitations period elapsed. See Maldonado, 370 F.3d at 955. Finally, Plaintiff’s claims could be considered timely if, in his Complaint, he 3 alleges facts sufficient to show the limitations period may be equitably tolled. See 4 Cervantes, 5 F.3d at 1276-77. Generally, federal courts also apply the forum state’s law 5 regarding equitable tolling. Fink, 192 F.3d at 914; Bacon v. City of Los Angeles, 843 F.2d 6 372, 374 (9th Cir.1988). Under California law, however, Plaintiff must meet three 7 conditions to equitably toll the statute of limitations: (1) he must have diligently pursued 8 his claim; (2) his situation must be the product of forces beyond his control; and (3) 9 Defendants must not be prejudiced by the application of equitable tolling. See Hull v. 10 Central Pathology Serv. Med. Clinic, 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994); 11 Addison v. State of California, 21 Cal.3d 313, 316-17 (Cal. 1978); Fink, 192 F.3d at 916. 12 As currently pleaded, however, the Court finds Plaintiff has failed to plead any 13 facts which, if proved, would support any plausible claim for equitable tolling. See 14 Cervantes, 5 F.3d at 1277; Iqbal, 556 U.S. at 679. Accordingly, the Court finds Plaintiff’s 15 claims are barred by the statute of limitations, and his entire Complaint must be 16 dismissed for failing to state a claim upon which section 1983 relief may be granted. See 17 28 U.S.C. § 1915(e)(2)(B)(ii); Barren, 152 F.3d at 1194. 18 D. 19 Plaintiff alleges that his civil rights have been violated because Defendants 20 “engaged in sentence advocacy” which caused his criminal sentence to be “enhanced.” 21 (Compl. at 3.) Plaintiff claims that this was a “breach of plea agreement.” (Id.) Plaintiff 22 was subject to criminal proceedings in San Diego Superior Court in 2000 and claims the 23 Deputy District Attorney prosecuting him introduced “new evidence” that “could not be 24 magically erased.” (Id. at 11.) Plaintiff seeks injunctive relief in the form of this Court 25 issuing an “order for resentencing.” (Id. at 8.) 26 Criminal Proceedings However, “[s]uits challenging the validity of the prisoner’s continued 27 incarceration lie within ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper 28 remedy for a state prisoner who is making a constitutional challenge to the conditions of 7 3:16-cv-3078-AJB-MDD 1 his prison life, but not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 2 850, 856 (9th Cir. 2003), quoting Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973) 3 (holding that a writ of habeas corpus is “explicitly and historically designed” to provide a 4 state prisoner with the “exclusive” means to “attack the validity of his confinement” in 5 federal court). 6 E. 7 Finally, to the extent Plaintiff seeks damages against Dennis Penish for being the Prosecutorial Immunity 8 prosecutor in his criminal proceedings, his claims are legally frivolous, because as a 9 prosecutor, Dennis Penish is entitled to absolute prosecutorial immunity. Ashelman v. 10 Pope, 793 F.2d 1072, 1076 (9th Cir. 1986) (“Where a prosecutor acts as an advocate ‘in 11 initiating a prosecution and in presenting the state’s case,’ absolute immunity applies.” 12 (quoting Imbler v. Pachtman, 424 U.S. 409, 431 (1976)); see also Lacey v. Maricopa 13 Cnty., 693 F.3d 896, 912 (9th Cir. 2012) (“Prosecutors performing their official 14 prosecutorial functions are entitled to absolute immunity against constitutional torts.”). Thus, for all these reasons, the Court finds Plaintiff’s Complaint fails to state a 15 16 claim upon which § 1983 relief may be granted, and that it therefore must be 17 DISMISSED pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 18 1126-27; Wilhelm, 680 F.3d at 1121. 19 III. 20 Leave to Amend Finally, while the Court would typically grant Plaintiff leave to amend in light of 21 his pro se status, it concludes that doing so under the circumstances presented by 22 Plaintiff’s pleadings would be futile. See Lopez, 203 F.3d at 1127; Schmier v. U.S. Court 23 of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing 24 “[f]utility of amendment” as a proper basis for dismissal without leave to amend). 25 /// 26 /// 27 /// 28 /// 8 3:16-cv-3078-AJB-MDD 1 IV. Conclusion and Order 2 For all the reasons explained the Court: 3 1. 4 5 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 3). 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 6 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 7 monthly payments from the account in an amount equal to twenty percent (20%) of the 8 preceding month’s income and forwarding those payments to the Clerk of the Court each 9 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 10 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 11 ASSIGNED TO THIS ACTION 12 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott 13 Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 14 942883, Sacramento, California, 94283-0001. 15 4. DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim 16 upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and 17 § 1915A(b)(1), without leave to amend as futile. 18 5. CERTIFIES that an IFP appeal from this Order would be frivolous and 19 therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See 20 Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 21 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if 22 appeal would not be frivolous); and 23 6. 24 IT IS SO ORDERED. 25 DIRECTS the Clerk of Court to close the file. Dated: March 22, 2017 26 27 28 9 3:16-cv-3078-AJB-MDD

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