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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ANTHONY BROWN; LARRY E. BELTON, SR., ORDER: Plaintiffs, 13 14 Case No.: 3:17-cv-00693-LAB-WVG vs. 1) DISMISSING PLAINTIFF BELTON; 15 16 17 18 19 20 21 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 22 23 5) DENYING MOTION TO EFFECT SERVICE AS MOOT [ECF No. 6] 24 25 26 Anthony Brown and Larry Belton are inmates currently incarcerated at Richard J. 27 Donovan Correctional Facility (RJD) in San Diego, California. Both Plaintiffs are 28 proceeding pro se, and have filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. 1 3:17-cv-00693-LAB-WVG 1 However, only Plaintiff Brown has filed a Motion to Proceed In Forma Pauperis 2 (IFP) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.) Plaintiff Belton has not filed a 3 Motion to Proceed IFP, nor has he prepaid the $400 civil filing fee required by 28 U.S.C. 4 § 1914(a) at the time of filing. 5 In addition, Plaintiffs have filed a “Motion to Effect Service” (ECF No. 6), while 6 Plaintiff Belton has separately filed a “Motion for an Emergency Injunction and 7 Restraining Order” (ECF No. 10). 8 I. 9 Motion to Proceed In Forma Pauperis All parties instituting any civil action, suit or proceeding in a district court of the 10 United States, except an application for writ of habeas corpus, must pay a filing fee of 11 $400. 1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 12 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 13 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 14 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 15 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 16 Bruce v. Samuels, __ S. Ct. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 17 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately 18 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 19 Cir. 2002). 20 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 21 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 22 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 23 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 24 25 26 27 28 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:17-cv-00693-LAB-WVG 1 trust account statement, the Court assesses an initial payment of 20% of (a) the average 2 monthly deposits in the account for the past six months, or (b) the average monthly 3 balance in the account for the past six months, whichever is greater, unless the prisoner 4 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 5 custody of the prisoner then collects subsequent payments, assessed at 20% of the 6 preceding month’s income, in any month in which his account exceeds $10, and forwards 7 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 8 Bruce, 136 S. Ct. at 629. 9 A. Plaintiff Brown 10 In support of his IFP Motion, Plaintiff Brown has submitted a copy of his CDCR 11 Inmate Statement Report attesting to his balances and deposits over the 6-month period 12 preceding the filing of his Complaint. See ECF No. 4 at 1-2; 28 U.S.C. § 1915(a)(2); S.D. 13 CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. This statement shows that Plaintiff has 14 nearly a zero balance at the time of filing. See ECF No. 5 at 1-2. See 28 U.S.C. 15 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 16 civil action or appealing a civil action or criminal judgment for the reason that the 17 prisoner has no assets and no means by which to pay the initial partial filing fee.”); 18 Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) 19 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a 20 “failure to pay ... due to the lack of funds available to him when payment is ordered.”). 21 Therefore, the Court grants Plaintiff Brown’s Motion to Proceed IFP (ECF No. 2), 22 declines to “exact” any initial filing fee because his trust account statement shows he “has 23 no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California 24 Department of Corrections and Rehabilitation (CDCR) to collect the entire $350 balance 25 of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the 26 Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 27 /// 28 /// 3 3:17-cv-00693-LAB-WVG 1 B. 2 Plaintiff Belton has not prepaid the $400 in filing and administrative fees required Plaintiff Belton 3 to commence this civil action, nor has he filed a properly supported Motion to Proceed 4 IFP pursuant to 28 U.S.C. § 1915(a). Therefore, his case cannot yet proceed. See 28 5 U.S.C. § 1914(a); Andrews, 493 F.3d at 1051. 6 Even if Plaintiff Belton were to file a properly supported Motion to Proceed IFP, 7 the Court would deny any such motion as barred pursuant to 28 U.S.C. § 1915(g). The 8 Prison Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege 9 to proceed IFP: 10 11 12 13 . . . 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. 14 15 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 16 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 17 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 18 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 19 “Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful 20 suits may entirely be barred from IFP status under the three strikes rule[.]”). The 21 objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner 22 litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 23 “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both 24 before and after the statute’s effective date.” Id. at 1311. 25 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 26 which were dismissed on the ground that they were frivolous, malicious, or failed to state 27 a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the 28 district court styles such dismissal as a denial of the prisoner’s application to file the 4 3:17-cv-00693-LAB-WVG 1 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 2 (9th Cir. 2008); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) 3 (noting that when court “review[s] a dismissal to determine whether it counts as a strike, 4 the style of the dismissal or the procedural posture is immaterial. Instead, the central 5 question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure 6 to state a claim.’”) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 7 Once a prisoner has accumulated three strikes, he is simply prohibited by section 8 1915(g) from pursuing any other IFP civil action or appeal in federal court unless he 9 alleges he is facing “imminent danger of serious physical injury.” See 28 U.S.C. 10 § 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP 11 complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger 12 of serious physical injury’ at the time of filing.”). 13 1. Application to Plaintiff 14 The Court has carefully reviewed Plaintiff Belton’s Complaint and has ascertained 15 that it does not contain any “plausible allegations” to suggest he “faced ‘imminent danger 16 of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 17 U.S.C. § 1915(g)). 18 A court may take judicial notice of its own records and “‘may take notice of 19 proceedings in other courts, both within and without the federal judicial system, if those 20 proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 21 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 22 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, 23 Inc., 971 F.2d 244, 248 (9th Cir. 1992). Plaintiff has been barred from proceeding IFP in 24 a number of cases included Belton v. Gacad, et al., S.D. Cal. Civil Case No. 3:13-cv- 25 01375-H-DHB (Order Denying Motion to Proceed IFP as barred by 28 U.S.C. § 1915(g) 26 and Dismissing Civil Action dated Aug. 16, 2013.) 27 /// 28 /// 5 3:17-cv-00693-LAB-WVG 1 II. 2 Representation of other parties To the extent that Plaintiff Brown is proceeding pro se and he intends to also 3 represent Plaintiff Belton, he has no authority to represent the legal interest of any other 4 party. See Cato v. United States, 70 F.3d 1103, 1105 n.1 (9th Cir. 1995); C.E. Pope 5 Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987); see also Fed.R.Civ.P. 6 11(a) (“Every pleading, written motion, and other paper shall be signed by at least one 7 attorney of record in the attorney’s original name, or if the party is not represented by an 8 attorney, shall be signed by the party.”). In this matter, neither Plaintiff signed the 9 Complaint. Because Plaintiff Belton has not filed a Motion to Proceed IFP, paid the 10 initial civil filing fee, or signed the Complaint, he is DISMISSED from this action. The 11 Court will not accept further filings from Plaintiff Belton in this matter. 12 III. Plaintiff Belton’s Motion for an Emergency Injunction 13 Plaintiff Belton has also filed a “Motion for an Emergency Injunction and 14 Restraining Order.” (ECF No. 10.) In this Motion, Plaintiff Belton alleges misconduct 15 on the part of RJD correctional officers who are not named Defendants in this action. 16 The facts alleged in this Motion appear to relate only to Plaintiff Belton who has been 17 dismissed from this action and there is no indication or factual allegations in this Motion 18 that Plaintiff Brown is seeking injunctive relief. 19 Procedurally, a federal district court may issue emergency injunctive relief only if 20 it has personal jurisdiction over the parties and subject matter jurisdiction over the 21 lawsuit. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) 22 (noting that one “becomes a party officially, and is required to take action in that 23 capacity, only upon service of summons or other authority-asserting measure stating the 24 time within which the party served must appear to defend.”). The court may not attempt 25 to determine the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. 26 Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir. 27 1983); Lathrop v. Unidentified, Wrecked & Abandoned Vessel, 817 F. Supp. 953, 961 28 (M.D. Fl. 1993); Kandlbinder v. Reagan, 713 F. Supp. 337, 339 (W.D. Mo. 1989); Suster 6 3:17-cv-00693-LAB-WVG 1 v. Marshall, 952 F. Supp. 693, 701 (N.D. Ohio 1996); see also Califano v. Yamasaki, 442 2 U.S. 682, 702 (1979) (injunctive relief must be “narrowly tailored to give only the relief 3 to which plaintiffs are entitled”). Under Federal Rule of Civil Procedure 65(d)(2) an 4 injunction binds only “the parties to the action,” their “officers, agents, servants, 5 employees, and attorneys,” and “other persons who are in active concert or participation.” 6 FED. R. CIV. P. 65(d)(2)(A)-(C). 7 As stated above, Plaintiff Belton has been dismissed from this action, the 8 individuals Plaintiff Belton seeks to restrain are not currently named Defendants, Plaintiff 9 Brown’s case is still in its preliminary screening stage, and the United States Marshal has 10 yet to effect service on Plaintiff Brown’s behalf. Therefore, Defendants have no actual 11 notice and the Court has no personal jurisdiction over any Defendant at this time. See 12 FED. R. CIV. P. 65(d)(2); Murphy Bros., Inc., 526 U.S. at 350; Zepeda, 753 F.2d at 727- 13 28. Accordingly, the Court DENIES Plaintiff Belton’s Motion for injunctive relief. 14 IV. 15 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 16 requires a pre-answer screening which the Court conducts sua sponte pursuant to 28 17 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must dismiss a 18 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state 19 a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 20 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); 21 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 22 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 23 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 24 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 25 680, 681 (7th Cir. 2012)). 26 “The standard for determining whether a plaintiff has failed to state a claim upon 27 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 28 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 7 3:17-cv-00693-LAB-WVG 1 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 2 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 3 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 4 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 5 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 6 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 7 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 8 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 9 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 10 relief [is] ... a context-specific task that requires the reviewing court to draw on its 11 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 12 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 13 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 14 (9th Cir. 2009). 15 A. 16 Plaintiff claims that he was notified by Defendant California Correctional Health 17 Care Service (“CCHCS”) through correspondence dated May 16, 2016 that there was a 18 “possible information security incident involving your personal information.” (ECF No. 19 1 at 6; 1-2 at 26.) In this notification it stated that an “unencrypted laptop was stolen 20 from a CCHCS workforce member’s personal vehicle.” (ECF No. 1-2 at 26.) It further 21 states that CCHCS does “not know if any sensitive information was contained in the 22 laptop” or whether the laptop “included any of your information.” (Id.) While Plaintiff 23 claims Defendants have “maliciously, intentionally violated the Plaintiff’s U.S. 24 Constitutional Eighth Amendment right to be free from cruel and unusual punishment,” 25 his injury is merely speculative. (ECF No. 1 at 8.) 26 /// 27 /// 28 /// Plaintiff Brown’s allegations 8 3:17-cv-00693-LAB-WVG 1 Plaintiff does not allege that he has any knowledge that any injury has resulted 2 from the theft or that he suffered any harm. 2 In order to determine whether Plaintiff even 3 has standing to bring such a claim, Plaintiff must allege facts to show that he faces “a 4 credible threat of harm” that is “both real and immediate” and not merely “conjectural or 5 hypothetical.” Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir. 2010) 6 (citations omitted.) 7 Here, Plaintiff was notified about the laptop theft but also informed that Defendant 8 CCHCS did not “know if any sensitive information was contained in the laptop” and or if 9 it contained any of Plaintiff’s personal information. (ECF No. 1-2 at 26.) Thus, whether 10 Plaintiff suffered an actual injury is merely speculative on his part and thus, his 11 constitutional claims are DISMISSED without prejudice for lack of standing. See Fleck 12 & Assoc, Inc. v. City of Phoenix, 471 F.3d 1100, 1106-07 (9th Cir. 2006). 13 Even if Plaintiff had standing to pursue this claim, he has failed to allege facts 14 sufficient to state a claim. Where a prisoner alleges he was deprived of a property 15 interest caused by the unauthorized acts of state officials, either negligent or intentional, 16 he cannot state a constitutional claim where the state provides an adequate post- 17 deprivation remedy. See Zinermon v. Burch, 494 U.S. 113, 129-32 (1990); Hudson v. 18 Palmer, 468 U.S. 517, 533 (1984) (holding that the unauthorized negligent or intentional 19 deprivation of property does not violate due process if a meaningful post-deprivation 20 remedy is available). The California Tort Claims Act (“CTCA”) provides an adequate 21 post-deprivation state remedy for the random and unauthorized taking of property. 22 Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (“California law provides an 23 adequate post-deprivation remedy for any property deprivations.”) Thus, to the extent 24 Plaintiff challenges the unauthorized or negligent taking of identity information, the 25 26 27 28 2 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. 9 3:17-cv-00693-LAB-WVG 1 CTCA provides him with an adequate state post-deprivation remedy, and his substantive 2 and procedural due process claims are not cognizable in a § 1983 action. 3 V. Conclusion and Order 4 Accordingly, the Court: 5 (1) DISMISSES Plaintiff Beltran from this action sua sponte without prejudice 6 for failure to pay the $400 civil filing and administrative fee or to submit a Motion to 7 Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); 8 9 10 (2) Restraining Order (ECF No. 10). No further filings from Plaintiff Beltran will be accepted in this action. 11 12 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); 13 (4) DIRECTS the Secretary of the CDCR, or his designee, to collect from 14 Plaintiff Brown’s trust account the $350 filing fee owed in this case by garnishing 15 monthly payments from his account in an amount equal to twenty percent (20%) of the 16 preceding month’s income and forwarding those payments to the Clerk of the Court each 17 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 18 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 19 ASSIGNED TO THIS ACTION. 20 21 (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. 22 (6) DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 23 § 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A and for 24 lack of subject matter jurisdiction; 25 (7) 26 /// 27 /// 28 DENIES Plaintiff Brown’s Motion to Effect Service (ECF No. 6) as moot; /// 10 3:17-cv-00693-LAB-WVG 1 (8) GRANTS Plaintiff Brown forty-five (45) days leave to file an Amended 2 Complaint which cures all the deficiencies of pleading described in this Order. Plaintiff is 3 cautioned, however, that should he choose to file an Amended Complaint, it must be 4 complete by itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim 5 not re-alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, 6 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 7 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 8 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 9 amended pleading may be “considered waived if not repled.”). 10 (9) The Clerk of Court is directed to mail Plaintiff Brown a court approved 11 form civil rights complaint. 12 IT IS SO ORDERED. 13 14 15 16 Dated: July 24 2017 HON. LARRY ALAN BURNS United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 11 3:17-cv-00693-LAB-WVG

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