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)

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