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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DONNIE RAY McKINLEY JR.,
Inmate #H-83058,

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ORDER: (1) GRANTING MOTION
TO PROCEED IN FORMA
PAUPERIS; AND (2) DISMISSING
COMPLAINT FOR FAILING TO
STATE A CLAIM WITHOUT
LEAVE TO AMEND

Plaintiff,

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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.

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Donnie Ray McKinley Jr. (“Plaintiff”), a California state prisoner incarcerated at

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Centinela State Prison in Imperial, California, and proceeding pro se, has filed a civil rights

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complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff states that

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upon his incarceration in 1997, money began being taken from his prisoner trust account

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to satisfy a $10,000 restitution order which he alleges was not facially valid, and which he

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succeeded in having reduced in 2014 to $200, and although he was refunded $714.95,

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which the prison authorities contend is the entire amount taken from his inmate trust

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account to satisfy the restitution order, he is unable to obtain a true accounting because a
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17cv0243-CAB (BGS)

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print-out of his inmate trust account statement prior to 2008 is not available due to the

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installation of a new accounting system in 2008. (Compl. at 6-23.) He claims that the

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collection of funds to satisfy a facially invalid restitution order, and the failure to provide

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him with a true accounting, has violated his Fourteenth Amendment right to due process

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of law, and his Eighth Amendment right to be free from excessive fines and cruel and

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unusual punishments. (Id.) Plaintiff did not prepay the civil filing fee required by 28

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U.S.C. § 1914(a), but has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant

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to 28 U.S.C. § 1915(a). (ECF No. 2.)

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I.

Plaintiff’s 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 must pay a filing fee. See 28 U.S.C. § 1914(a).1 An action may proceed

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despite a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed

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IFP pursuant to 28 U.S.C. § 1915(a). Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir.

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1999). However, if the plaintiff is a prisoner, even if he is granted leave to proceed IFP,

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he remains obligated to pay the full entire fee in “increments,” see Williams v. Paramo,

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775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action is ultimately

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dismissed. See 28 U.S.C. § 1915(b)(1) & (2).

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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”),

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prisoners seeking leave to proceed IFP must submit a “certified copy of the trust fund

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account statement (or institutional equivalent) for the . . . six-month period immediately

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preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d

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1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses

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an initial payment of 20 percent of (a) the average monthly deposits in the account for the

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

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whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28

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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.
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U.S.C. § 1915(b)(4).

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subsequent payments, assessed at 20 percent of the preceding month’s income, in any

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month in which the prisoner’s account exceeds $10, and forwards those payments to the

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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

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In support of his IFP Motion, Plaintiff has submitted a prison certificate attesting to

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his trust account balance and activity for the six-month period prior to the filing of his

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Complaint as required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. This certificate

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shows that Plaintiff has had no monthly deposits, has carried no average balance, and had

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no available funds to his credit at the time of filing. [ECF No. 2 at 4.] Therefore, the Court

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GRANTS Plaintiff’s Motion to Proceed IFP and assesses no initial partial filing fee per 28

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U.S.C. § 1915(b)(1). See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a

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prisoner be prohibited from bringing a civil action or appealing a civil action or criminal

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judgment for the reason that the prisoner has no assets and no means by which to pay the

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initial partial filing fee.”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding

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that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s

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IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when

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payment is ordered.”) However, the entire $350 balance of the filing fee due for this case

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must be forwarded to the Clerk of the Court pursuant to the installment payment provisions

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set forth in 28 U.S.C. § 1915(b)(1).

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II.

Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

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A.

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“The Court shall review, before docketing, if feasible or, in any event, as soon as

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practicable after docketing,” complaints filed by all persons proceeding IFP, and by those,

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like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced

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for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of

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parole, probation, pretrial release, or diversionary program.” See 28 U.S.C. §§ 1915(e)(2)

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and 1915A(b). The Court must sua sponte dismiss complaints, or any portions thereof,

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which are frivolous, malicious, fail to state a claim, or which seek damages from defendants

Standard of Review

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who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d

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1122, 1126-27 (9th Cir. 2000) (en banc).

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All complaints must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Determining whether a

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complaint states a plausible claim for relief [is] . . . a context-specific task that requires the

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reviewing court to draw on its judicial experience and common sense.” Id. at 679. The

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“mere possibility of misconduct” falls short of meeting the Iqbal plausibility standard. Id.;

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see also Moss v. U. S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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(“Under § 1983, when determining whether a complaint states a claim, a court must accept

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as true all allegations of material fact and must construe those facts in the light most

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favorable to the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)

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(noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure

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12(b)(6)”). However, while the court has an “obligation . . . where the petitioner is pro se,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010),

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citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc), it may not, in

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so doing, “supply essential elements of the claim that were not initially pled.” Ivey v.

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Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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“Section 1983 creates a private right of action against individuals who, acting under

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color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,

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263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive

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rights, but merely provides a method for vindicating federal rights elsewhere conferred.”
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17cv0243-CAB (BGS)

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Graham v. Connor, 490 U.S. 386, 393-94 (1989). “To establish § 1983 liability, a plaintiff

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must show both (1) deprivation of a right secured by the Constitution and laws of the United

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States, and (2) that the deprivation was committed by a person acting under color of state

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law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
Plaintiff’s Allegations

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B.

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Plaintiff alleges that when he was received into the California Department of

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Corrections and Rehabilitation (“CDCR”) in 1997, Defendant Correctional Case Records

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Specialist R. Frentz entered a $10,000 restitution fine into his CDCR record without proper

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documentation from the trial court. (Compl. at 11-12.) From 1997 to 1999, Defendants

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Ruth Young, C. Stewart and Beth of the Legal Processing Unit of the CDCR failed to

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become aware of the improper fine, and Defendant Delores Paschal failed to properly

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supervise those Defendants. (Id. at 12-13.) From 1999-2001, Defendants Correctional

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Case Records Managers Kathy Moore and L. Kearns were deliberately indifferent to the

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lack of proper authentication of the restitution fine. (Id. at 13.) Plaintiff filed an

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administrative appeal on January 18, 2010, challenging the failure to properly authenticate

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his restitution fine, and was interviewed on February 8, 2010 by Defendant Correctional

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Case Records Supervisor E. Butler. (Id.) Defendant Butler denied relief, and Plaintiff

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alleges that Butler’s supervisor Defendant J.T. Ochoa, his supervisor Defendant L.

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McEwen, and Defendant J. Beard, the Secretary of the CDCR at the time, all chose to

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remain deliberately indifferent to the failure to properly authenticate the restitution order.

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(Id. at 13-14.) On February 27, 2015, the Riverside Superior Court found that Plaintiff had

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not been advised of the imposition of the restitution fine at sentencing as required by law,

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and lowered the restitution fine to the statutory minimum of $200. (Id. at 14, 66.) Plaintiff

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claims the Defendants, by deducting money from his inmate trust account prior to the

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reversal by the state court, violated his rights to due process and to be free from excessive

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fines and cruel and unusual punishment. (Id. at 15.)

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Plaintiff states that he filed an administrative appeal on July 8, 2015, requesting

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reimbursement and an audit of the money improperly deducted from his inmate trust
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account. (Id. at 17-20.) He contends Defendant Associate Warden R. Johnson issued a

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first-level response ordering a refund, and he received a $714.95 refund along with an

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accounting signed by Defendant Warden R. Madden. (Id. at 20.) Plaintiff states that he

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contested the amount of the refund, and alerted CDCR authorities that the audit did not

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include funds removed prior to November 3, 2008. (Id.) On July 17, 2015, Plaintiff

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received a second level response signed by Defendant R. Madden which stated that he had

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been refunded all amounts collected, which included $377.69 collected under the pre-2008

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accounting system, and $337.26 collected under the new accounting system, but that a

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print-out of his inmate trust account prior to November 2008 was not possible due to the

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change in systems. (Id. at 20, 75.) Plaintiff states that on September 29, 2015, a third level

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response was denied by a designee of Defendant J. Beard, without a full accounting. (Id.

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at 21.) Plaintiff alleges these Defendants were deliberately indifferent to, and failed to

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supervise their subordinates in, the denial of his rights to due process of law and to be free

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from excessive fines and cruel and unusual punishment arising from the confiscation of,

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and failure to fully account for, the money taken from his inmate trust account to satisfy an

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invalid restitution order. (Id. at 21-22.)

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C.

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For the following reasons, the Court finds that Plaintiff’s allegations that his property

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was confiscated and not fully accounted for by Defendants fails to state a substantive or

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procedural due process claim, or an Eighth Amendment excessive fines or cruel and

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unusual punishments claim, upon which § 1983 relief can be granted. See 28 U.S.C.

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§§ 1915(e)(2)(B)(ii); 1915A(b)(1). Because it is clear that Plaintiff is unable to overcome

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the defects of his pleading, the dismissal is without further leave to amend.

Analysis

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A state inmate has a property interest protected by federal due process in the funds

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in his prison trust account. Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir. 1985). However,

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a deduction from an inmate trust account to satisfy a restitution order does not state a

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substantive or procedural due process claim if the deduction is authorized by state law. See

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Turner v. Safley, 482 U.S. 78, 89 (1987) (“[W]hen a prison regulation impinges on
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17cv0243-CAB (BGS)

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inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate

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penological interests.”) The Ninth Circuit has held that “California Penal Code § 2085.5,

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requiring the California Director of Corrections to make deductions from the wages and

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trust account deposits of prisoners for payment of restitution obligations, is rationally

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related to legitimate state interests in compensating crime victims.” Craft v. Ahuja, 475

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Fed.Appx. 649, 650 (9th Cir. 2012), citing Turner, 482 U.S. at 89; see also Abney v.

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Alameida, 334 F.Supp.2d 1221, 1231-32 (S.D. Cal. 2004) (allegations of deductions from

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a prisoner’s trust account to satisfy a restitution order, whether authorized or unauthorized

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by state law, fail to state a claim for a violation of substantive or procedural due process).

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Accordingly, to the extent the removal of funds from his prison trust account to satisfy a

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restitution order was authorized by California law, Plaintiff has not stated a substantive or

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procedural due process claim upon which relief can be granted.

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To the extent Plaintiff contends the deductions were not authorized by state law

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because the restitution order was not valid on its face or the deductions were inaccurate, he

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has also failed to state a due process claim. He alleges that he repeatedly informed

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Defendants that the deductions from his account were not authorized, and that the

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Defendants have been and remain deliberately indifferent to whether he receives an

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accurate accounting. Where a prisoner alleges he was deprived of a property interest

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caused by the unauthorized acts of state officials, either negligent or intentional, he cannot

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state a constitutional claim where the state provides an adequate post-deprivation remedy.

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See Zinermon v. Burch, 494 U.S. 113, 129-32 (1990); Hudson v. Palmer, 468 U.S. 517,

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533 (1984) (holding that the unauthorized negligent or intentional deprivation of property

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does not violate due process if a meaningful post-deprivation remedy is available). The

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California Tort Claims Act (“CTCA”) provides an adequate post-deprivation state remedy

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for the random and unauthorized taking of property. Barnett v. Centoni, 31 F.3d 813, 816-

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17 (9th Cir. 1994) (“California law provides an adequate post-deprivation remedy for any

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property deprivations.”) Thus, to the extent Plaintiff challenges the unauthorized or

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negligent taking of his money in contravention of a statute or regulation authorizing it, the
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CTCA provides him with an adequate state post-deprivation remedy, and his substantive

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and procedural due process claims challenging the confiscation of and failure to return

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money taken from his inmate trust account are not cognizable in a § 1983 action.

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In addition, to the extent Plaintiff seeks to hold the Defendants liable for the failure

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to properly adjudicate his inmate grievances or his request for an accurate accounting, he

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has no federal constitutional right to an effective grievance or appeal procedure. Ramirez

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v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (finding no § 1983 liability for actions of

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prison officials in reviewing inmate appeals because inmates have no federal constitutional

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right to a prison grievance system); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)

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(“There is no legitimate claim of entitlement to a grievance procedure.”)

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Finally, Plaintiff has not stated an Eighth Amendment claim upon which relief may

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be granted. “The Eighth Amendment provides that ‘[e]xcessive bail shall not be required,

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nor excessive fines imposed, nor cruel and unusual punishments inflicted’” Norris v.

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Morgan, 622 F.3d 1276, 1285 (9th Cir. 2010), quoting U.S. Const. amend VIII.

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Plaintiff has not stated an excessive fines claim because in order “[t]o establish

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§ 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the

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Constitution and laws of the United States, and (2) that the deprivation was committed by

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a person acting under color of state law.” Tsao, 698 F.3d at 1138 (emphasis added). Unlike

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most other provisions of the Bill of Rights, the Supreme Court has never held that the

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Excessive Fines Clause of the Eighth Amendment applies to the States by virtue of

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incorporation into the Fourteenth Amendment’s Due Process Clause. See McDonald v.

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Chicago, 561 U.S. 742, 765 n.13 (2010) (holding that the Second Amendment right to keep

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and bear arms is applicable to the states by virtue of its incorporation into the Due Process

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Clause of the Fourteenth Amendment, and noting that the only provisions of the Bill of

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Rights which have not yet been so incorporated are the Third Amendment’s protection

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against quartering soldiers, the Fifth Amendment’s grand jury indictment requirement, the

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Seventh Amendment right to a jury trial in civil cases, and the Eighth Amendment’s

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prohibition on excessive fines).
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Neither has Plaintiff stated a cruel and unusual punishments claim. In order to state

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an Eighth Amendment cruel and unusual punishments claim, Plaintiff must allege the fine

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inflicted upon him is grossly disproportionate to his criminal offense. United States v.

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Mackby, 339 F.3d 1013, 1016 (9th Cir. 2003). The Complaint indicates that Plaintiff was

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convicted of murder, assault with deadly weapon, battery, robbery, and five counts of

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attempted robbery, all involving the use of a firearm except the battery conviction, and is

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serving a sentence of life imprisonment without the possibility of parole plus nineteen

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years. (Compl. at 52-53.) Because Plaintiff does not allege that the amounts collected to

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pay restitution to the victims of his crimes is grossly disproportionate to his criminal

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offenses, he has not stated an Eighth Amendment cruel and unusual punishments claim

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upon which relief can be granted.

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D.

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“A district court should not dismiss a pro se complaint without leave to amend

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[pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies

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of the complaint could not be cured by amendment.’” Rosati v. Igbinoso, 791 F.3d 1037,

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1039 (9th Cir. 2015), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). The

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Court finds that amendment would be futile because, as discussed above, it is clear that

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Plaintiff is unable to state a claim for relief arising from the taking of money from his

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inmate trust account. In addition, Plaintiff was notified of that deficiency of pleading in

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So.Dist.Ca.Civil Case No. 11cv1292-BTM (MDD). In that case, Plaintiff filed a civil

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complaint pursuant to 42 U.S.C. § 1983 against the Director of the CDCR, two of the same

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CDCR employees named here, and the Clerk of the Riverside County Superior Court who

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entered the $10,000 restitution order, seeking damages from the allegedly unlawful taking

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of money from his inmate trust account to satisfy the restitution order, and an injunction

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modifying the restitution order (which at the time had not yet been reduced by the superior

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court). (See Compl. filed 6/10/11 [ECF No. 1] in So.Dist.Ca.Civil Case No. 11cv1292-

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BTM (MDD).) The Complaint was dismissed on initial screening without leave to amend

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on the basis that any amendment would be futile because: (1) the Clerk of the Riverside

Leave to Amend

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County Superior Court was entitled to absolute quasi-judicial immunity, (2) the Court

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lacked jurisdiction to order modification of a state-court restitution order under Rooker v.

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Fidelity Trust Company, 263 U.S. 413 (1923) and District of Columbia Court of Appeals

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v. Feldman, 460 U.S. 462 (1983), and (3) the CTCA provided an adequate post-deprivation

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remedy for the loss of any money taken from Plaintiff’s inmate trust account to satisfy the

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restitution order. (See Order filed 9/19/11 at [ECF No. 5] in So.Dist.Ca.Civil Case No.

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11cv1292-BTM (MDD).)

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As set forth above, Plaintiff cannot state a § 1983 claim upon which relief may be

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granted based on the taking of money from his inmate trust account, whether authorized or

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unauthorized, to pay his restitution fine. In addition, Plaintiff has been notified of the

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inability to state such a claim in a previous action in this Court and has failed to cure that

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pleading defect in the instant Complaint. Because it is clear that any amendment would be

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futile, the Court declines to grant Plaintiff leave to amend. See Cahill v. Liberty Mut. Ins.

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Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of leave to amend is not an abuse of discretion

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where further amendment would be futile); Newland v. Dalton, 81 F.3d 904, 907 (9th Cir.

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1996) (“While Fed.R.Civ.P. 15(a) encourages leave to amend, district courts need not

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accommodate futile amendments.”)

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III.

Conclusion and Orders

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Based on the forgoing, the Court:

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1.

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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

(EFC No. 2).
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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 his 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).

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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.
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4.

DISMISSES Plaintiff’s Complaint with prejudice and without leave to amend

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for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C.

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§ 1915(e)(2) and § 1915A(b).

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Dated: June 21, 2017

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