McKinley Jr. v. Frentz et al

Filing 3

ORDER: (1) Granting Motion to Proceed In Forma Pauperis; and (2) Dismissing Complaint for Failing to State a Claim Without Leave to Amend. (Order electronically transmitted to Secretary of CDCR) (Copy served on Scott Kernan, Secretary, CDCR). Signed by Judge Cathy Ann Bencivengo on 6/21/2017. (All non-registered users served via U.S. Mail Service)(jjg)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 DONNIE RAY McKINLEY JR., Inmate #H-83058, 16 17 18 19 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; AND (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM WITHOUT LEAVE TO AMEND Plaintiff, 14 15 Case No.: 17cv0243-CAB (BGS) v. R. FRENTZ, R. YOUNG, D. PASCHAL, C. STEWART, BETH, K. MOORE, L. KEARNS, E. BUTLER, J.T. OCHOA, L. McEWEN, J. BEARD, R. JOHNSON AND R. MADDEN, Defendants. 20 21 Donnie Ray McKinley Jr. (“Plaintiff”), a California state prisoner incarcerated at 22 Centinela State Prison in Imperial, California, and proceeding pro se, has filed a civil rights 23 complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff states that 24 upon his incarceration in 1997, money began being taken from his prisoner trust account 25 to satisfy a $10,000 restitution order which he alleges was not facially valid, and which he 26 succeeded in having reduced in 2014 to $200, and although he was refunded $714.95, 27 which the prison authorities contend is the entire amount taken from his inmate trust 28 account to satisfy the restitution order, he is unable to obtain a true accounting because a 1 17cv0243-CAB (BGS) 1 print-out of his inmate trust account statement prior to 2008 is not available due to the 2 installation of a new accounting system in 2008. (Compl. at 6-23.) He claims that the 3 collection of funds to satisfy a facially invalid restitution order, and the failure to provide 4 him with a true accounting, has violated his Fourteenth Amendment right to due process 5 of law, and his Eighth Amendment right to be free from excessive fines and cruel and 6 unusual punishments. (Id.) Plaintiff did not prepay the civil filing fee required by 28 7 U.S.C. § 1914(a), but has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 8 to 28 U.S.C. § 1915(a). (ECF No. 2.) 9 I. Plaintiff’s Motion to Proceed IFP 10 All parties instituting any civil action, suit or proceeding in a district court of the 11 United States must pay a filing fee. See 28 U.S.C. § 1914(a).1 An action may proceed 12 despite a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed 13 IFP pursuant to 28 U.S.C. § 1915(a). Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 14 1999). However, if the plaintiff is a prisoner, even if he is granted leave to proceed IFP, 15 he remains obligated to pay the full entire fee in “increments,” see Williams v. Paramo, 16 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action is ultimately 17 dismissed. See 28 U.S.C. § 1915(b)(1) & (2). 18 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), 19 prisoners seeking leave to proceed IFP must submit a “certified copy of the trust fund 20 account statement (or institutional equivalent) for the . . . six-month period immediately 21 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 22 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses 23 an initial payment of 20 percent of (a) the average monthly deposits in the account for the 24 past six months, or (b) the average monthly balance in the account for the past six months, 25 whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 26 27 28 1 In addition to the $350 statutory fee for this action, 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 17cv0243-CAB (BGS) 1 U.S.C. § 1915(b)(4). 2 subsequent payments, assessed at 20 percent of the preceding month’s income, in any 3 month in which the prisoner’s account exceeds $10, and forwards those payments to the 4 Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). The institution having custody of the prisoner then collects 5 In support of his IFP Motion, Plaintiff has submitted a prison certificate attesting to 6 his trust account balance and activity for the six-month period prior to the filing of his 7 Complaint as required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. This certificate 8 shows that Plaintiff has had no monthly deposits, has carried no average balance, and had 9 no available funds to his credit at the time of filing. [ECF No. 2 at 4.] Therefore, the Court 10 GRANTS Plaintiff’s Motion to Proceed IFP and assesses no initial partial filing fee per 28 11 U.S.C. § 1915(b)(1). See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a 12 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 13 judgment for the reason that the prisoner has no assets and no means by which to pay the 14 initial partial filing fee.”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding 15 that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s 16 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when 17 payment is ordered.”) However, the entire $350 balance of the filing fee due for this case 18 must be forwarded to the Clerk of the Court pursuant to the installment payment provisions 19 set forth in 28 U.S.C. § 1915(b)(1). 20 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 21 A. 22 “The Court shall review, before docketing, if feasible or, in any event, as soon as 23 practicable after docketing,” complaints filed by all persons proceeding IFP, and by those, 24 like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced 25 for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of 26 parole, probation, pretrial release, or diversionary program.” See 28 U.S.C. §§ 1915(e)(2) 27 and 1915A(b). The Court must sua sponte dismiss complaints, or any portions thereof, 28 which are frivolous, malicious, fail to state a claim, or which seek damages from defendants Standard of Review 3 17cv0243-CAB (BGS) 1 who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 2 1122, 1126-27 (9th Cir. 2000) (en banc). 3 All complaints must contain “a short and plain statement of the claim showing that 4 the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are not 5 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing 7 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Determining whether a 8 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 9 reviewing court to draw on its judicial experience and common sense.” Id. at 679. The 10 “mere possibility of misconduct” falls short of meeting the Iqbal plausibility standard. Id.; 11 see also Moss v. U. S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 12 “When there are well-pleaded factual allegations, a court should assume their 13 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 14 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 15 (“Under § 1983, when determining whether a complaint states a claim, a court must accept 16 as true all allegations of material fact and must construe those facts in the light most 17 favorable to the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) 18 (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 19 12(b)(6)”). However, while the court has an “obligation . . . where the petitioner is pro se, 20 particularly in civil rights cases, to construe the pleadings liberally and to afford the 21 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), 22 citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc), it may not, in 23 so doing, “supply essential elements of the claim that were not initially pled.” Ivey v. 24 Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 25 “Section 1983 creates a private right of action against individuals who, acting under 26 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 27 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 28 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 4 17cv0243-CAB (BGS) 1 Graham v. Connor, 490 U.S. 386, 393-94 (1989). “To establish § 1983 liability, a plaintiff 2 must show both (1) deprivation of a right secured by the Constitution and laws of the United 3 States, and (2) that the deprivation was committed by a person acting under color of state 4 law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). Plaintiff’s Allegations 5 B. 6 Plaintiff alleges that when he was received into the California Department of 7 Corrections and Rehabilitation (“CDCR”) in 1997, Defendant Correctional Case Records 8 Specialist R. Frentz entered a $10,000 restitution fine into his CDCR record without proper 9 documentation from the trial court. (Compl. at 11-12.) From 1997 to 1999, Defendants 10 Ruth Young, C. Stewart and Beth of the Legal Processing Unit of the CDCR failed to 11 become aware of the improper fine, and Defendant Delores Paschal failed to properly 12 supervise those Defendants. (Id. at 12-13.) From 1999-2001, Defendants Correctional 13 Case Records Managers Kathy Moore and L. Kearns were deliberately indifferent to the 14 lack of proper authentication of the restitution fine. (Id. at 13.) Plaintiff filed an 15 administrative appeal on January 18, 2010, challenging the failure to properly authenticate 16 his restitution fine, and was interviewed on February 8, 2010 by Defendant Correctional 17 Case Records Supervisor E. Butler. (Id.) Defendant Butler denied relief, and Plaintiff 18 alleges that Butler’s supervisor Defendant J.T. Ochoa, his supervisor Defendant L. 19 McEwen, and Defendant J. Beard, the Secretary of the CDCR at the time, all chose to 20 remain deliberately indifferent to the failure to properly authenticate the restitution order. 21 (Id. at 13-14.) On February 27, 2015, the Riverside Superior Court found that Plaintiff had 22 not been advised of the imposition of the restitution fine at sentencing as required by law, 23 and lowered the restitution fine to the statutory minimum of $200. (Id. at 14, 66.) Plaintiff 24 claims the Defendants, by deducting money from his inmate trust account prior to the 25 reversal by the state court, violated his rights to due process and to be free from excessive 26 fines and cruel and unusual punishment. (Id. at 15.) 27 Plaintiff states that he filed an administrative appeal on July 8, 2015, requesting 28 reimbursement and an audit of the money improperly deducted from his inmate trust 5 17cv0243-CAB (BGS) 1 account. (Id. at 17-20.) He contends Defendant Associate Warden R. Johnson issued a 2 first-level response ordering a refund, and he received a $714.95 refund along with an 3 accounting signed by Defendant Warden R. Madden. (Id. at 20.) Plaintiff states that he 4 contested the amount of the refund, and alerted CDCR authorities that the audit did not 5 include funds removed prior to November 3, 2008. (Id.) On July 17, 2015, Plaintiff 6 received a second level response signed by Defendant R. Madden which stated that he had 7 been refunded all amounts collected, which included $377.69 collected under the pre-2008 8 accounting system, and $337.26 collected under the new accounting system, but that a 9 print-out of his inmate trust account prior to November 2008 was not possible due to the 10 change in systems. (Id. at 20, 75.) Plaintiff states that on September 29, 2015, a third level 11 response was denied by a designee of Defendant J. Beard, without a full accounting. (Id. 12 at 21.) Plaintiff alleges these Defendants were deliberately indifferent to, and failed to 13 supervise their subordinates in, the denial of his rights to due process of law and to be free 14 from excessive fines and cruel and unusual punishment arising from the confiscation of, 15 and failure to fully account for, the money taken from his inmate trust account to satisfy an 16 invalid restitution order. (Id. at 21-22.) 17 C. 18 For the following reasons, the Court finds that Plaintiff’s allegations that his property 19 was confiscated and not fully accounted for by Defendants fails to state a substantive or 20 procedural due process claim, or an Eighth Amendment excessive fines or cruel and 21 unusual punishments claim, upon which § 1983 relief can be granted. See 28 U.S.C. 22 §§ 1915(e)(2)(B)(ii); 1915A(b)(1). Because it is clear that Plaintiff is unable to overcome 23 the defects of his pleading, the dismissal is without further leave to amend. Analysis 24 A state inmate has a property interest protected by federal due process in the funds 25 in his prison trust account. Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir. 1985). However, 26 a deduction from an inmate trust account to satisfy a restitution order does not state a 27 substantive or procedural due process claim if the deduction is authorized by state law. See 28 Turner v. Safley, 482 U.S. 78, 89 (1987) (“[W]hen a prison regulation impinges on 6 17cv0243-CAB (BGS) 1 inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate 2 penological interests.”) The Ninth Circuit has held that “California Penal Code § 2085.5, 3 requiring the California Director of Corrections to make deductions from the wages and 4 trust account deposits of prisoners for payment of restitution obligations, is rationally 5 related to legitimate state interests in compensating crime victims.” Craft v. Ahuja, 475 6 Fed.Appx. 649, 650 (9th Cir. 2012), citing Turner, 482 U.S. at 89; see also Abney v. 7 Alameida, 334 F.Supp.2d 1221, 1231-32 (S.D. Cal. 2004) (allegations of deductions from 8 a prisoner’s trust account to satisfy a restitution order, whether authorized or unauthorized 9 by state law, fail to state a claim for a violation of substantive or procedural due process). 10 Accordingly, to the extent the removal of funds from his prison trust account to satisfy a 11 restitution order was authorized by California law, Plaintiff has not stated a substantive or 12 procedural due process claim upon which relief can be granted. 13 To the extent Plaintiff contends the deductions were not authorized by state law 14 because the restitution order was not valid on its face or the deductions were inaccurate, he 15 has also failed to state a due process claim. He alleges that he repeatedly informed 16 Defendants that the deductions from his account were not authorized, and that the 17 Defendants have been and remain deliberately indifferent to whether he receives an 18 accurate accounting. Where a prisoner alleges he was deprived of a property interest 19 caused by the unauthorized acts of state officials, either negligent or intentional, he cannot 20 state a constitutional claim where the state provides an adequate post-deprivation remedy. 21 See Zinermon v. Burch, 494 U.S. 113, 129-32 (1990); Hudson v. Palmer, 468 U.S. 517, 22 533 (1984) (holding that the unauthorized negligent or intentional deprivation of property 23 does not violate due process if a meaningful post-deprivation remedy is available). The 24 California Tort Claims Act (“CTCA”) provides an adequate post-deprivation state remedy 25 for the random and unauthorized taking of property. Barnett v. Centoni, 31 F.3d 813, 816- 26 17 (9th Cir. 1994) (“California law provides an adequate post-deprivation remedy for any 27 property deprivations.”) Thus, to the extent Plaintiff challenges the unauthorized or 28 negligent taking of his money in contravention of a statute or regulation authorizing it, the 7 17cv0243-CAB (BGS) 1 CTCA provides him with an adequate state post-deprivation remedy, and his substantive 2 and procedural due process claims challenging the confiscation of and failure to return 3 money taken from his inmate trust account are not cognizable in a § 1983 action. 4 In addition, to the extent Plaintiff seeks to hold the Defendants liable for the failure 5 to properly adjudicate his inmate grievances or his request for an accurate accounting, he 6 has no federal constitutional right to an effective grievance or appeal procedure. Ramirez 7 v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (finding no § 1983 liability for actions of 8 prison officials in reviewing inmate appeals because inmates have no federal constitutional 9 right to a prison grievance system); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) 10 (“There is no legitimate claim of entitlement to a grievance procedure.”) 11 Finally, Plaintiff has not stated an Eighth Amendment claim upon which relief may 12 be granted. “The Eighth Amendment provides that ‘[e]xcessive bail shall not be required, 13 nor excessive fines imposed, nor cruel and unusual punishments inflicted’” Norris v. 14 Morgan, 622 F.3d 1276, 1285 (9th Cir. 2010), quoting U.S. Const. amend VIII. 15 Plaintiff has not stated an excessive fines claim because in order “[t]o establish 16 § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the 17 Constitution and laws of the United States, and (2) that the deprivation was committed by 18 a person acting under color of state law.” Tsao, 698 F.3d at 1138 (emphasis added). Unlike 19 most other provisions of the Bill of Rights, the Supreme Court has never held that the 20 Excessive Fines Clause of the Eighth Amendment applies to the States by virtue of 21 incorporation into the Fourteenth Amendment’s Due Process Clause. See McDonald v. 22 Chicago, 561 U.S. 742, 765 n.13 (2010) (holding that the Second Amendment right to keep 23 and bear arms is applicable to the states by virtue of its incorporation into the Due Process 24 Clause of the Fourteenth Amendment, and noting that the only provisions of the Bill of 25 Rights which have not yet been so incorporated are the Third Amendment’s protection 26 against quartering soldiers, the Fifth Amendment’s grand jury indictment requirement, the 27 Seventh Amendment right to a jury trial in civil cases, and the Eighth Amendment’s 28 prohibition on excessive fines). 8 17cv0243-CAB (BGS) 1 Neither has Plaintiff stated a cruel and unusual punishments claim. In order to state 2 an Eighth Amendment cruel and unusual punishments claim, Plaintiff must allege the fine 3 inflicted upon him is grossly disproportionate to his criminal offense. United States v. 4 Mackby, 339 F.3d 1013, 1016 (9th Cir. 2003). The Complaint indicates that Plaintiff was 5 convicted of murder, assault with deadly weapon, battery, robbery, and five counts of 6 attempted robbery, all involving the use of a firearm except the battery conviction, and is 7 serving a sentence of life imprisonment without the possibility of parole plus nineteen 8 years. (Compl. at 52-53.) Because Plaintiff does not allege that the amounts collected to 9 pay restitution to the victims of his crimes is grossly disproportionate to his criminal 10 offenses, he has not stated an Eighth Amendment cruel and unusual punishments claim 11 upon which relief can be granted. 12 D. 13 “A district court should not dismiss a pro se complaint without leave to amend 14 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies 15 of the complaint could not be cured by amendment.’” Rosati v. Igbinoso, 791 F.3d 1037, 16 1039 (9th Cir. 2015), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). The 17 Court finds that amendment would be futile because, as discussed above, it is clear that 18 Plaintiff is unable to state a claim for relief arising from the taking of money from his 19 inmate trust account. In addition, Plaintiff was notified of that deficiency of pleading in 20 So.Dist.Ca.Civil Case No. 11cv1292-BTM (MDD). In that case, Plaintiff filed a civil 21 complaint pursuant to 42 U.S.C. § 1983 against the Director of the CDCR, two of the same 22 CDCR employees named here, and the Clerk of the Riverside County Superior Court who 23 entered the $10,000 restitution order, seeking damages from the allegedly unlawful taking 24 of money from his inmate trust account to satisfy the restitution order, and an injunction 25 modifying the restitution order (which at the time had not yet been reduced by the superior 26 court). (See Compl. filed 6/10/11 [ECF No. 1] in So.Dist.Ca.Civil Case No. 11cv1292- 27 BTM (MDD).) The Complaint was dismissed on initial screening without leave to amend 28 on the basis that any amendment would be futile because: (1) the Clerk of the Riverside Leave to Amend 9 17cv0243-CAB (BGS) 1 County Superior Court was entitled to absolute quasi-judicial immunity, (2) the Court 2 lacked jurisdiction to order modification of a state-court restitution order under Rooker v. 3 Fidelity Trust Company, 263 U.S. 413 (1923) and District of Columbia Court of Appeals 4 v. Feldman, 460 U.S. 462 (1983), and (3) the CTCA provided an adequate post-deprivation 5 remedy for the loss of any money taken from Plaintiff’s inmate trust account to satisfy the 6 restitution order. (See Order filed 9/19/11 at [ECF No. 5] in So.Dist.Ca.Civil Case No. 7 11cv1292-BTM (MDD).) 8 As set forth above, Plaintiff cannot state a § 1983 claim upon which relief may be 9 granted based on the taking of money from his inmate trust account, whether authorized or 10 unauthorized, to pay his restitution fine. In addition, Plaintiff has been notified of the 11 inability to state such a claim in a previous action in this Court and has failed to cure that 12 pleading defect in the instant Complaint. Because it is clear that any amendment would be 13 futile, the Court declines to grant Plaintiff leave to amend. See Cahill v. Liberty Mut. Ins. 14 Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of leave to amend is not an abuse of discretion 15 where further amendment would be futile); Newland v. Dalton, 81 F.3d 904, 907 (9th Cir. 16 1996) (“While Fed.R.Civ.P. 15(a) encourages leave to amend, district courts need not 17 accommodate futile amendments.”) 18 III. Conclusion and Orders 19 Based on the forgoing, the Court: 20 1. 21 22 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (EFC No. 2). 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 23 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 24 payments from his account in an amount equal to twenty percent (20%) of the preceding 25 month’s income and forwarding those payments to the Clerk of the Court each time the 26 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). 27 28 3. 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. 10 17cv0243-CAB (BGS) 1 4. DISMISSES Plaintiff’s Complaint with prejudice and without leave to amend 2 for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. 3 § 1915(e)(2) and § 1915A(b). 4 Dated: June 21, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 17cv0243-CAB (BGS)

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