Guillen v. Martinez et al

Filing 18

ORDER: 1) Granting Motions to Proceed IFP Pursuant to 28 U.S.C. 1915(a) [ECF Nos. 8 , 13 ]; 2) Denying Motion for Reconsideration as Moot; and 3) Dismissing Complaint for Failing to State a Claim Pursuant to 28 U.S.C. 1915(e)(2) and 1915A(b). (Order electronically transmitted to Secretary of CDCR)(Copy of order served on Scott Kernan, Secretary)(Complaint form mailed to Plaintiff). Signed by Judge Cathy Ann Bencivengo on 7/5/2017. (All non-registered users served via U.S. Mail Service)(jjg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JUAN GUILLLEN, CDCR #T-57240, Case No.: 3:17-cv-0964-CAB-NLS 13 14 ORDER: Plaintiff, vs. 1) GRANTING MOTIONS TO PROCEED IFP PURSUANT TO 28 U.S.C. § 1915(a) [ECF Nos. 8, 13]; 15 16 17 CORRECTIONAL OFFICER MARTINEZ, et al., 2) DENYING MOTION FOR RECONSIDERATION AS MOOT; AND Defendant. 18 19 3) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) 20 21 22 23 24 25 26 27 Juan Guillen (“Plaintiff”), is a prisoner at Salinas Valley State Prison (“SVSP”) in Soledad, California. He initially filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1) in the Northern District of California. However, because the claims he raised in his Complaint arose while he was incarcerated at the Richard J. Donovan Correctional Facility (“RJD”), the matter was transferred to the Southern District of 28 1 3:17-cv-0964-CAB-NLS 1 California on May 5, 2017. (ECF No. 4.) Initially, this Court dismissed Plaintiff’s entire action because he had failed to file 2 3 a Motion to Proceed In Forma Pauperis (“IFP”) or pay the initial civil filing fee. (ECF 4 No. 7.) Plaintiff has now filed two Motions to Proceed IFP which has reopened this 5 matter. (ECF Nos. 8, 13). In addition, Plaintiff has file a “Motion for Reconsideration 6 and Reopening of Case File.” (ECF No. 10.) Because Plaintiff has filed the two IFP 7 Motions, the Court has reopened the matter and thus, DENIES Plaintiff’s Motion for 8 Reconsideration as moot. 9 I. 10 Plaintiff’s IFP Motions All parties instituting any civil action, suit or proceeding in a district court of the 11 United States, except an application for writ of habeas corpus, must pay a filing fee of 12 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 13 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 14 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, 15 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in 16 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 17 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 18 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 19 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 20 Section 1915(a)(2) also 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-0964-CAB-NLS 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 In support of his IFP Motions, Plaintiff has submitted CDCR Inmate Statement 10 Report dated June 3, 2017, together with a prison certificate completed by a SVSP 11 accounting official attesting to his trust account activity and balances for the six-months 12 preceding the filing of his Complaint. See ECF No. 8 at 6-8; 28 U.S.C. § 1915(a)(2); S.D. 13 CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These statements show that Plaintiff had an 14 average monthly balance of $22.77, and average monthly deposits of $52.50 to his 15 account over the 6-month period immediately preceding the filing of his Complaint, as 16 well as an available balance of $49.00 at the time of filing. See ECF No. 8 at 7. Based on 17 this financial information, the Court GRANTS Plaintiff’s Motions to Proceed IFP (ECF 18 No. 8, 13), and assesses his initial partial filing fee to be $10.50 pursuant to 28 U.S.C. 19 § 1915(b)(1). 20 However, the Court will direct the Secretary of the California Department of 21 Corrections and Rehabilitation (“CDCR”), or his designee, to collect this initial fee only 22 if sufficient funds are available in Plaintiff’s account at the time this Order is executed. 23 See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited 24 from bringing a civil action or appealing a civil action or criminal judgment for the 25 reason that the prisoner has no assets and no means by which to pay the initial partial 26 filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850. The remaining balance of 27 the $350 total fee owed in this case must be collected and forwarded to the Clerk of the 28 Court pursuant to 28 U.S.C. § 1915(b)(1). 3 3:17-cv-0964-CAB-NLS 1 2 II. Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 3 Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 4 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 5 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 6 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 7 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 8 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 9 the targets of frivolous or malicious suits need not bear the expense of responding.’” 10 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 11 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 12 “The standard for determining whether a plaintiff has failed to state a claim upon 13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 15 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 16 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 17 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 18 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 19 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 20 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 21 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 22 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 23 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 24 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 25 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 26 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 27 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 28 (9th Cir. 2009). 4 3:17-cv-0964-CAB-NLS Plaintiff’s Allegations 1 1. 2 When Plaintiff was previously housed at RJD, he was charged with a “Rules 3 Violation Report” for the act of “battery on an inmate with a weapon resulting in serious 4 bodily injury.” (Compl. at 3.) In August of 2015, Defendant Martinez, as the “Senior 5 Hearing Officer,” conducted a disciplinary hearing based on this charge. (Id. at 5.) 6 Plaintiff alleges Defendant Martinez allowed the “inmate and alleged victim” to provide 7 written testimony against the objections of Plaintiff. (Id.) Plaintiff claims Defendant 8 Martinez stated during the hearing that he reviewed Plaintiff’s file and stated “you are a 9 fighter,” noted that Plaintiff is serving a sentence of life without the possibility of parole,” 10 and concluded that “I believe you did it so deal with it on appeal.” (Id.) Plaintiff was 11 sentenced to the Security Housing Unit (“SHU”) and claims that he “had to be kept under 12 psychiatric care.” (Id.) 13 2. 14 The Due Process Clause protects prisoners against deprivation or restraint of “a Due Process Claims 15 protected liberty interest” and “atypical and significant hardship on the inmate in relation 16 to the ordinary incidents of prison life.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 17 2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)) (internal quotation marks 18 omitted). Although the level of the hardship must be determined in a case-by-case 19 determination, courts look to: 1) whether the challenged condition ‘mirrored those conditions imposed upon inmates in administrative segregation and protective custody,’ and thus comported with the prison’s discretionary authority; 2) the duration of the condition, and the degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence. 20 21 22 23 24 Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87). Only if an inmate has 25 alleged facts sufficient to show a protected liberty interest does the court next consider 26 “whether the procedures used to deprive that liberty satisfied Due Process.” Ramirez, 334 27 F.3d at 860. 28 /// 5 3:17-cv-0964-CAB-NLS 1 As currently pleaded, Plaintiff’s Complaint fails to allege facts which show that the 2 disciplinary punishment he faced as a result of the RVR subjected him to any “atypical 3 and significant hardship in relation to the ordinary incidents of prison life.” Id.; Sandin, 4 515 U.S. at 584. Plaintiff does not compare the conditions of his confinement before or 5 after his disciplinary conviction. Nor does he allege the degree of restraint it imposed. 6 Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87). 7 And while Plaintiff does claim generally that his disciplinary conviction caused 8 him “emotional distress, anguish,” his pleading contains no “factual content that allows 9 the court to draw the reasonable inference,” Iqbal, 556 U.S. at 678, that Defendants 10 actions “presented a dramatic departure from the basic conditions of [Plaintiff’s] 11 indeterminate sentence,” or caused him to suffer an “atypical” or “significant hardship.” 12 Sandin, 515 U.S. at 584-85; see also Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 13 1996), amended by 135 F.3d 1318 (9th Cir. 1998). 14 Moreover, even if Plaintiff had alleged facts sufficient to invoke a protected liberty 15 interest under Sandin, he still fails to plead facts to plausibly show he was denied the 16 procedural protections the Due Process Clause requires. See Iqbal, 556 U.S. at 678; 17 Ramirez, 334 F.3d at 860 (citations omitted); see also Brown v. Oregon Dep’t of Corr., 18 751 F.3d 983, 987 (9th Cir. 2014). Those procedures include: (1) written notice of the 19 charges at least 24 hours before the disciplinary hearing; (2) a written statement by the 20 fact-finder of the evidence relied on and reasons for the disciplinary action; (3) the right 21 to call witnesses and present documentary evidence if doing so will not jeopardize 22 institutional safety or correctional goals; (4) the right to appear before an impartial body; 23 and (5) assistance from fellow inmates or prison staff in complex cases. Wolff v. 24 McDonnell, 418 U.S. 539, 563-72 (1974); Serrano v. Francis, 345 F.3d 1071, 1079-80 25 (9th Cir. 2003). Plaintiff claims he “never agreed to waive the presence or agreed to the 26 stipulated testimony of the requested witness.” (Compl. at 5.) Plaintiff does not allege he 27 was denied the right to call a witness. He simply objects to the form in which the 28 testimony from this witness was given which does not violate Wolff. 6 3:17-cv-0964-CAB-NLS Accordingly, the Court finds that Plaintiff’s Complaint fails to state a procedural 1 2 due process claim as to any Defendant; therefore, his Fourteenth Amendment claims are 3 also subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 4 § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 5 III. 6 Leave to Amend A pro se litigant must be given leave to amend his pleading to state a claim unless 7 it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d 8 at 1130 (noting leave to amend should be granted when a complaint is dismissed under 9 28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can correct the defect”). 10 Therefore, while the Court finds Plaintiff’s Complaint fails to state a claim upon which 11 relief can be granted, it will provide him a chance to fix the pleading deficiencies 12 discussed in this Order. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing 13 Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 14 IV. Conclusion and Order 15 For all the reasons discussed, the Court: 16 1. 17 File” (ECF No. 10) as moot. 18 19 DENIES Plaintiff’s “Motion for Reconsideration and Reopening of Case 2. GRANTS Plaintiff’s Motions to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Nos. 8, 13). 20 3. ORDERS the Secretary of the CDCR, or his designee, to collect from 21 Plaintiff’s trust account the $10.50 initial filing fee assessed, if those funds are available 22 at the time this Order is executed, and to forward whatever balance remains of the full 23 $350 owed in monthly payments in an amount equal to twenty percent (20%) of the 24 preceding month’s income to the Clerk of the Court each time the amount in Plaintiff’s 25 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE 26 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 27 ACTION. 28 /// 7 3:17-cv-0964-CAB-NLS 1 4. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott 2 Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 3 942883, Sacramento, California, 94283-0001. 4 5. DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim 5 upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 6 § 1915A(b)(1), and GRANTS him forty-five (45) days leave from the date of this Order 7 in which to file an Amended Complaint which cures all the deficiencies of pleading 8 noted. Plaintiff’s Amended Complaint must be complete by itself without reference to his 9 original pleading, and must comply with S.D. CAL. CIVLR 8.2(a). Defendants not named 10 and any claim not re-alleged in his Amended Complaint will be considered waived. See 11 S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 12 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. 13 Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with 14 leave to amend which are not re-alleged in an amended pleading may be “considered 15 waived if not repled.”). 16 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 17 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to 18 state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) 19 and 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring 20 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005). 21 22 23 24 6. The Clerk of Court is directed to mail Plaintiff a court approved civil rights complaint form for his use in amending his pleading. IT IS SO ORDERED. Dated: July 5, 2017 25 26 27 28 8 3:17-cv-0964-CAB-NLS

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