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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JUAN GUILLLEN,
CDCR #T-57240,

Case No.: 3:17-cv-0964-CAB-NLS

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ORDER:

Plaintiff,
vs.

1) GRANTING MOTIONS TO
PROCEED IFP PURSUANT TO 28
U.S.C. § 1915(a)
[ECF Nos. 8, 13];

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CORRECTIONAL OFFICER
MARTINEZ, et al.,

2) DENYING MOTION FOR
RECONSIDERATION AS MOOT;
AND

Defendant.

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3) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND § 1915A(b)

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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

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California on May 5, 2017. (ECF No. 4.)
Initially, this Court dismissed Plaintiff’s entire action because he had failed to file

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a Motion to Proceed In Forma Pauperis (“IFP”) or pay the initial civil filing fee. (ECF

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No. 7.) Plaintiff has now filed two Motions to Proceed IFP which has reopened this

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matter. (ECF Nos. 8, 13). In addition, Plaintiff has file a “Motion for Reconsideration

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and Reopening of Case File.” (ECF No. 10.) Because Plaintiff has filed the two IFP

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Motions, the Court has reopened the matter and thus, DENIES Plaintiff’s Motion for

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Reconsideration as moot.

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I.

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Plaintiff’s IFP Motions
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). However,

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prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in

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“increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629

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(2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of

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whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v.

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Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Section 1915(a)(2) also 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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3:17-cv-0964-CAB-NLS

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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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In support of his IFP Motions, Plaintiff has submitted CDCR Inmate Statement

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Report dated June 3, 2017, together with a prison certificate completed by a SVSP

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accounting official attesting to his trust account activity and balances for the six-months

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preceding the filing of his Complaint. See ECF No. 8 at 6-8; 28 U.S.C. § 1915(a)(2); S.D.

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CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These statements show that Plaintiff had an

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average monthly balance of $22.77, and average monthly deposits of $52.50 to his

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account over the 6-month period immediately preceding the filing of his Complaint, as

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well as an available balance of $49.00 at the time of filing. See ECF No. 8 at 7. Based on

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this financial information, the Court GRANTS Plaintiff’s Motions to Proceed IFP (ECF

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No. 8, 13), and assesses his initial partial filing fee to be $10.50 pursuant to 28 U.S.C.

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§ 1915(b)(1).

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However, the Court will direct the Secretary of the California Department of

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Corrections and Rehabilitation (“CDCR”), or his designee, to collect this initial fee only

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if sufficient funds are available in Plaintiff’s account at the time this Order is executed.

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

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from bringing a civil action or appealing a civil action or criminal judgment for the

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reason that the prisoner has no assets and no means by which to pay the initial partial

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filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850. The remaining balance of

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the $350 total fee owed in this case must be collected and forwarded to the Clerk of the

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Court pursuant to 28 U.S.C. § 1915(b)(1).
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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-

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Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

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statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

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it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

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who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

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2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

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the targets of frivolous or malicious suits need not bear the expense of responding.’”

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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

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Health Sources, Inc., 689 F.3d 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 to “contain sufficient factual matter,

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

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556 U.S. 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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Plaintiff’s Allegations

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When Plaintiff was previously housed at RJD, he was charged with a “Rules

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Violation Report” for the act of “battery on an inmate with a weapon resulting in serious

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bodily injury.” (Compl. at 3.) In August of 2015, Defendant Martinez, as the “Senior

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Hearing Officer,” conducted a disciplinary hearing based on this charge. (Id. at 5.)

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Plaintiff alleges Defendant Martinez allowed the “inmate and alleged victim” to provide

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written testimony against the objections of Plaintiff. (Id.) Plaintiff claims Defendant

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Martinez stated during the hearing that he reviewed Plaintiff’s file and stated “you are a

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fighter,” noted that Plaintiff is serving a sentence of life without the possibility of parole,”

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and concluded that “I believe you did it so deal with it on appeal.” (Id.) Plaintiff was

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sentenced to the Security Housing Unit (“SHU”) and claims that he “had to be kept under

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psychiatric care.” (Id.)

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The Due Process Clause protects prisoners against deprivation or restraint of “a

Due Process Claims

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protected liberty interest” and “atypical and significant hardship on the inmate in relation

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to the ordinary incidents of prison life.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.

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2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)) (internal quotation marks

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omitted). Although the level of the hardship must be determined in a case-by-case

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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.

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Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87). Only if an inmate has

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alleged facts sufficient to show a protected liberty interest does the court next consider

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“whether the procedures used to deprive that liberty satisfied Due Process.” Ramirez, 334

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F.3d at 860.

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As currently pleaded, Plaintiff’s Complaint fails to allege facts which show that the

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disciplinary punishment he faced as a result of the RVR subjected him to any “atypical

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and significant hardship in relation to the ordinary incidents of prison life.” Id.; Sandin,

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515 U.S. at 584. Plaintiff does not compare the conditions of his confinement before or

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after his disciplinary conviction. Nor does he allege the degree of restraint it imposed.

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Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87).

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And while Plaintiff does claim generally that his disciplinary conviction caused

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him “emotional distress, anguish,” his pleading contains no “factual content that allows

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the court to draw the reasonable inference,” Iqbal, 556 U.S. at 678, that Defendants

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actions “presented a dramatic departure from the basic conditions of [Plaintiff’s]

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indeterminate sentence,” or caused him to suffer an “atypical” or “significant hardship.”

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Sandin, 515 U.S. at 584-85; see also Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir.

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1996), amended by 135 F.3d 1318 (9th Cir. 1998).

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Moreover, even if Plaintiff had alleged facts sufficient to invoke a protected liberty

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interest under Sandin, he still fails to plead facts to plausibly show he was denied the

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procedural protections the Due Process Clause requires. See Iqbal, 556 U.S. at 678;

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Ramirez, 334 F.3d at 860 (citations omitted); see also Brown v. Oregon Dep’t of Corr.,

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751 F.3d 983, 987 (9th Cir. 2014). Those procedures include: (1) written notice of the

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charges at least 24 hours before the disciplinary hearing; (2) a written statement by the

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fact-finder of the evidence relied on and reasons for the disciplinary action; (3) the right

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to call witnesses and present documentary evidence if doing so will not jeopardize

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institutional safety or correctional goals; (4) the right to appear before an impartial body;

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and (5) assistance from fellow inmates or prison staff in complex cases. Wolff v.

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McDonnell, 418 U.S. 539, 563-72 (1974); Serrano v. Francis, 345 F.3d 1071, 1079-80

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(9th Cir. 2003). Plaintiff claims he “never agreed to waive the presence or agreed to the

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stipulated testimony of the requested witness.” (Compl. at 5.) Plaintiff does not allege he

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was denied the right to call a witness. He simply objects to the form in which the

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testimony from this witness was given which does not violate Wolff.
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Accordingly, the Court finds that Plaintiff’s Complaint fails to state a procedural

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due process claim as to any Defendant; therefore, his Fourteenth Amendment claims are

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also subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

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§ 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

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III.

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Leave to Amend
A pro se litigant must be given leave to amend his pleading to state a claim unless

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it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d

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at 1130 (noting leave to amend should be granted when a complaint is dismissed under

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28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can correct the defect”).

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Therefore, while the Court finds Plaintiff’s Complaint fails to state a claim upon which

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relief can be granted, it will provide him a chance to fix the pleading deficiencies

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discussed in this Order. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing

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Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

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IV.

Conclusion and Order

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For all the reasons discussed, the Court:

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1.

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File” (ECF No. 10) as moot.

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DENIES Plaintiff’s “Motion for Reconsideration and Reopening of Case

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

§ 1915(a) (ECF Nos. 8, 13).

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3.

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

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Plaintiff’s trust account the $10.50 initial filing fee assessed, if those funds are available

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at the time this Order is executed, and to forward whatever balance remains of the full

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$350 owed in monthly payments in an amount equal to twenty percent (20%) of the

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preceding month’s income to the Clerk of the Court each time the amount in Plaintiff’s

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account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE

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CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS

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ACTION.

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4.

DIRECTS the Clerk of the Court to serve a copy of this Order on Scott

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Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box

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942883, Sacramento, California, 94283-0001.

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DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim

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upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

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§ 1915A(b)(1), and GRANTS him forty-five (45) days leave from the date of this Order

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in which to file an Amended Complaint which cures all the deficiencies of pleading

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noted. Plaintiff’s Amended Complaint must be complete by itself without reference to his

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original pleading, and must comply with S.D. CAL. CIVLR 8.2(a). Defendants not named

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and any claim not re-alleged in his Amended Complaint will be considered waived. See

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S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d

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1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v.

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Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with

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leave to amend which are not re-alleged in an amended pleading may be “considered

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waived if not repled.”).

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If Plaintiff fails to file an Amended Complaint within the time provided, the Court

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will enter a final Order dismissing this civil action based both on Plaintiff’s failure to

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state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)

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and 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring

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amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005).

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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

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