Brown et al v. Kernan et al

Filing 15

ORDER : 1) Dismissing Plaintiff Belton; 2) Granting Plaintiff Brown's Motion to Proceed In Forma Pauperis [ECF No. 2 ]; 3) Denying Motion for Preliminary Injunction [ECF No. 10 ]; 4) Dismissing Complaint for Failing to State a Claim; and 5) De nying Motion to Effect Service as Moot [ECF No. 6 ]. Signed by Judge Larry Alan Burns on 7/24/2017. (Copy sent to Scott Kernan, Secretary, CDCR)(Civil Rights Complaint sent to Plaintiff Brown) (All non-registered users served via U.S. Mail Service)(lrf)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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ANTHONY BROWN; LARRY E.
BELTON, SR.,

ORDER:

Plaintiffs,

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Case No.: 3:17-cv-00693-LAB-WVG

vs.

1) DISMISSING PLAINTIFF
BELTON;

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SCOTT KERNAN; CALIFORNIA
HEALTH CARE SERVICES; J. LEWIS;
DANIEL A. PARAMO; DR. R.
WALKER; DR. J. CHAU; OFFICE OF
RISK MANAGEMENT; DR. A.
HORAM; J. KELSO; EDMUND GERRY
BROWN, JR.,

2) GRANTING PLAINTIFF
BROWN’S MOTION TO PROCEED
IN FORMA PAUPERIS [ECF No. 2]
3) DENYING MOTION FOR
PRELIMINARY INJUNCTION
[ECF No. 10];

Defendants.

4) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM; AND

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5) DENYING MOTION TO EFFECT
SERVICE AS MOOT [ECF No. 6]

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Anthony Brown and Larry Belton are inmates currently incarcerated at Richard J.

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Donovan Correctional Facility (RJD) in San Diego, California. Both Plaintiffs are

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proceeding pro se, and have filed a civil rights Complaint pursuant to 42 U.S.C. § 1983.
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3:17-cv-00693-LAB-WVG

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However, only Plaintiff Brown has filed a Motion to Proceed In Forma Pauperis

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(IFP) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.) Plaintiff Belton has not filed a

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Motion to Proceed IFP, nor has he prepaid the $400 civil filing fee required by 28 U.S.C.

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§ 1914(a) at the time of filing.

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In addition, Plaintiffs have filed a “Motion to Effect Service” (ECF No. 6), while

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Plaintiff Belton has separately filed a “Motion for an Emergency Injunction and

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Restraining Order” (ECF No. 10).

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I.

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Motion to Proceed In Forma Pauperis
All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. 1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

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

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

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

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

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Cir. 2002).

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

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

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

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

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In addition to the $350 statutory fee, civil litigants must pay an additional administrative
fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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trust account statement, the Court assesses an initial payment of 20% of (a) the average

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

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balance in the account for the past six months, whichever is greater, unless the prisoner

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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

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

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preceding month’s income, in any month in which his account exceeds $10, and forwards

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

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Bruce, 136 S. Ct. at 629.

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A.

Plaintiff Brown

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

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Inmate Statement Report attesting to his balances and deposits over the 6-month period

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preceding the filing of his Complaint. See ECF No. 4 at 1-2; 28 U.S.C. § 1915(a)(2); S.D.

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CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. This statement shows that Plaintiff has

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nearly a zero balance at the time of filing. See ECF No. 5 at 1-2. See 28 U.S.C.

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

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

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prisoner has no assets and no means by which to pay the initial partial filing fee.”);

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Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4)

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acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a

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

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Therefore, the Court grants Plaintiff Brown’s Motion to Proceed IFP (ECF No. 2),

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declines to “exact” any initial filing fee because his trust account statement shows he “has

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no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California

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Department of Corrections and Rehabilitation (CDCR) to collect the entire $350 balance

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of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the

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Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

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B.

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Plaintiff Belton has not prepaid the $400 in filing and administrative fees required

Plaintiff Belton

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to commence this civil action, nor has he filed a properly supported Motion to Proceed

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IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28

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U.S.C. § 1914(a); Andrews, 493 F.3d at 1051.

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Even if Plaintiff Belton were to file a properly supported Motion to Proceed IFP,

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the Court would deny any such motion as barred pursuant to 28 U.S.C. § 1915(g). The

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Prison Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege

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to proceed IFP:

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. . . if [a] prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim
upon which relief can be granted, unless the prisoner is under
imminent danger of serious physical injury.

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28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’

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provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).

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“Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.”

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Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter

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“Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful

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suits may entirely be barred from IFP status under the three strikes rule[.]”). The

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objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner

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litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).

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“[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both

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before and after the statute’s effective date.” Id. at 1311.

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“Strikes are prior cases or appeals, brought while the plaintiff was a prisoner,

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which were dismissed on the ground that they were frivolous, malicious, or failed to state

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a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the

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district court styles such dismissal as a denial of the prisoner’s application to file the
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action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153

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(9th Cir. 2008); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016)

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(noting that when court “review[s] a dismissal to determine whether it counts as a strike,

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the style of the dismissal or the procedural posture is immaterial. Instead, the central

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question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure

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to state a claim.’”) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)).

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Once a prisoner has accumulated three strikes, he is simply prohibited by section

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1915(g) from pursuing any other IFP civil action or appeal in federal court unless he

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alleges he is facing “imminent danger of serious physical injury.” See 28 U.S.C.

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§ 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP

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complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger

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of serious physical injury’ at the time of filing.”).

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Application to Plaintiff

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The Court has carefully reviewed Plaintiff Belton’s Complaint and has ascertained

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that it does not contain any “plausible allegations” to suggest he “faced ‘imminent danger

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of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28

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U.S.C. § 1915(g)).

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A court may take judicial notice of its own records and “‘may take notice of

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proceedings in other courts, both within and without the federal judicial system, if those

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proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212,

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1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir.

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2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo,

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Inc., 971 F.2d 244, 248 (9th Cir. 1992). Plaintiff has been barred from proceeding IFP in

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a number of cases included Belton v. Gacad, et al., S.D. Cal. Civil Case No. 3:13-cv-

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01375-H-DHB (Order Denying Motion to Proceed IFP as barred by 28 U.S.C. § 1915(g)

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and Dismissing Civil Action dated Aug. 16, 2013.)

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II.

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Representation of other parties
To the extent that Plaintiff Brown is proceeding pro se and he intends to also

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represent Plaintiff Belton, he has no authority to represent the legal interest of any other

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party. See Cato v. United States, 70 F.3d 1103, 1105 n.1 (9th Cir. 1995); C.E. Pope

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Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987); see also Fed.R.Civ.P.

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11(a) (“Every pleading, written motion, and other paper shall be signed by at least one

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attorney of record in the attorney’s original name, or if the party is not represented by an

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attorney, shall be signed by the party.”). In this matter, neither Plaintiff signed the

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Complaint. Because Plaintiff Belton has not filed a Motion to Proceed IFP, paid the

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initial civil filing fee, or signed the Complaint, he is DISMISSED from this action. The

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Court will not accept further filings from Plaintiff Belton in this matter.

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III.

Plaintiff Belton’s Motion for an Emergency Injunction

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Plaintiff Belton has also filed a “Motion for an Emergency Injunction and

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Restraining Order.” (ECF No. 10.) In this Motion, Plaintiff Belton alleges misconduct

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on the part of RJD correctional officers who are not named Defendants in this action.

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The facts alleged in this Motion appear to relate only to Plaintiff Belton who has been

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dismissed from this action and there is no indication or factual allegations in this Motion

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that Plaintiff Brown is seeking injunctive relief.

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Procedurally, a federal district court may issue emergency injunctive relief only if

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it has personal jurisdiction over the parties and subject matter jurisdiction over the

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lawsuit. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999)

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(noting that one “becomes a party officially, and is required to take action in that

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capacity, only upon service of summons or other authority-asserting measure stating the

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time within which the party served must appear to defend.”). The court may not attempt

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to determine the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v.

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Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir.

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1983); Lathrop v. Unidentified, Wrecked & Abandoned Vessel, 817 F. Supp. 953, 961

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(M.D. Fl. 1993); Kandlbinder v. Reagan, 713 F. Supp. 337, 339 (W.D. Mo. 1989); Suster
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v. Marshall, 952 F. Supp. 693, 701 (N.D. Ohio 1996); see also Califano v. Yamasaki, 442

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U.S. 682, 702 (1979) (injunctive relief must be “narrowly tailored to give only the relief

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to which plaintiffs are entitled”). Under Federal Rule of Civil Procedure 65(d)(2) an

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injunction binds only “the parties to the action,” their “officers, agents, servants,

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employees, and attorneys,” and “other persons who are in active concert or participation.”

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FED. R. CIV. P. 65(d)(2)(A)-(C).

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As stated above, Plaintiff Belton has been dismissed from this action, the

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individuals Plaintiff Belton seeks to restrain are not currently named Defendants, Plaintiff

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Brown’s case is still in its preliminary screening stage, and the United States Marshal has

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yet to effect service on Plaintiff Brown’s behalf. Therefore, Defendants have no actual

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notice and the Court has no personal jurisdiction over any Defendant at this time. See

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FED. R. CIV. P. 65(d)(2); Murphy Bros., Inc., 526 U.S. at 350; Zepeda, 753 F.2d at 727-

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28. Accordingly, the Court DENIES Plaintiff Belton’s Motion for injunctive relief.

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IV.

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Screening of Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
Because Plaintiff Brown is a prisoner and is proceeding IFP, his Complaint

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requires a pre-answer screening which the Court conducts sua sponte pursuant to 28

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U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must dismiss a

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prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state

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a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203

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F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2));

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Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. §

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1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or

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malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

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903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d

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680, 681 (7th Cir. 2012)).

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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668
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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

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relief [is] ... a context-specific task that requires the reviewing court to draw on its

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judicial experience and common sense.” Id. The “mere possibility of misconduct” or

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009).

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A.

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Plaintiff claims that he was notified by Defendant California Correctional Health

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Care Service (“CCHCS”) through correspondence dated May 16, 2016 that there was a

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“possible information security incident involving your personal information.” (ECF No.

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1 at 6; 1-2 at 26.) In this notification it stated that an “unencrypted laptop was stolen

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from a CCHCS workforce member’s personal vehicle.” (ECF No. 1-2 at 26.) It further

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states that CCHCS does “not know if any sensitive information was contained in the

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laptop” or whether the laptop “included any of your information.” (Id.) While Plaintiff

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claims Defendants have “maliciously, intentionally violated the Plaintiff’s U.S.

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Constitutional Eighth Amendment right to be free from cruel and unusual punishment,”

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his injury is merely speculative. (ECF No. 1 at 8.)

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Plaintiff Brown’s allegations

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Plaintiff does not allege that he has any knowledge that any injury has resulted

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from the theft or that he suffered any harm. 2 In order to determine whether Plaintiff even

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has standing to bring such a claim, Plaintiff must allege facts to show that he faces “a

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credible threat of harm” that is “both real and immediate” and not merely “conjectural or

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hypothetical.” Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir. 2010)

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(citations omitted.)

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Here, Plaintiff was notified about the laptop theft but also informed that Defendant

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CCHCS did not “know if any sensitive information was contained in the laptop” and or if

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it contained any of Plaintiff’s personal information. (ECF No. 1-2 at 26.) Thus, whether

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Plaintiff suffered an actual injury is merely speculative on his part and thus, his

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constitutional claims are DISMISSED without prejudice for lack of standing. See Fleck

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& Assoc, Inc. v. City of Phoenix, 471 F.3d 1100, 1106-07 (9th Cir. 2006).

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Even if Plaintiff had standing to pursue this claim, he has failed to allege facts

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sufficient to state a claim. Where a prisoner alleges he was deprived of a property

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interest caused by the unauthorized acts of state officials, either negligent or intentional,

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he cannot state a constitutional claim where the state provides an adequate post-

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deprivation remedy. See Zinermon v. Burch, 494 U.S. 113, 129-32 (1990); Hudson v.

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Palmer, 468 U.S. 517, 533 (1984) (holding that the unauthorized negligent or intentional

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deprivation of property does not violate due process if a meaningful post-deprivation

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remedy is available). The California Tort Claims Act (“CTCA”) provides an adequate

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post-deprivation state remedy for the random and unauthorized taking of property.

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Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (“California law provides an

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adequate post-deprivation remedy for any property deprivations.”) Thus, to the extent

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Plaintiff challenges the unauthorized or negligent taking of identity information, the

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Plaintiff Belton claims that his information was stolen and used to create debt in his name but he is
not a party to this action. Plaintiff Brown offers no factual allegations or provide any documentation to
support such a claim.
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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 are not cognizable in a § 1983 action.

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V.

Conclusion and Order

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Accordingly, the Court:

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(1)

DISMISSES Plaintiff Beltran from this action sua sponte without prejudice

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for failure to pay the $400 civil filing and administrative fee or to submit a Motion to

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Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a);

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(2)

Restraining Order (ECF No. 10). No further filings from Plaintiff Beltran will be
accepted in this action.

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DENIES Plaintiff Beltran’s Motion for Emergency Injunction and

(3)

GRANTS Plaintiff Brown’s Motion to Proceed IFP pursuant to 28 U.S.C.

§ 1915(a) (ECF No. 2);

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(4)

DIRECTS the Secretary of the CDCR, or his designee, to collect from

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Plaintiff Brown’s trust account the $350 filing fee owed in this case by garnishing

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monthly payments from his account in an amount equal to twenty percent (20%) of the

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preceding month’s income and forwarding those payments to the Clerk of the Court each

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time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

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PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

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ASSIGNED TO THIS ACTION.

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(5)

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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(6)

DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

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§ 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A and for

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lack of subject matter jurisdiction;

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(7)

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DENIES Plaintiff Brown’s Motion to Effect Service (ECF No. 6) as moot;

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(8)

GRANTS Plaintiff Brown forty-five (45) days leave to file an Amended

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Complaint which cures all the deficiencies of pleading described in this Order. Plaintiff is

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cautioned, however, that should he choose to file an Amended Complaint, it must be

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complete by itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim

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not re-alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios,

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Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

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pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.

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2012) (noting that claims dismissed with leave to amend which are not re-alleged in an

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amended pleading may be “considered waived if not repled.”).

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(9)

The Clerk of Court is directed to mail Plaintiff Brown a court approved

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form civil rights complaint.

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IT IS SO ORDERED.

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Dated: July 24 2017
HON. LARRY ALAN BURNS
United States District Judge

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