Yasin v. D. Flynn et al

Filing 9

ORDER granting 4 Motion for Leave to Proceed in forma pauperis. The Warden of the OMDC, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). Plainti ff has forty-five (45) days leave from the date of this Order in which to file an Amended Complaint which cures the deficiencies of pleading described in this Order. Signed by Judge Cynthia Bashant on 11/16/2017. (All non-registered users served via U.S. Mail Service)A copy of this order sent to Warden of the OMDC via U.S. mail(acc)

1
2
3
4
5
6
7
8
9
10

UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA

12
13

OMAR YASIN,

Case No. 17-cv-01057-BAS-JLB

14
15
16

ORDER:

Plaintiff,
v.

(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
(ECF No. 4)

17
18

CAPTAIN D. FLYNN, et al.,
AND

19
20

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

Defendants.

21
22
23
24

Omar Yasin (“Plaintiff”), while he was detained at the San Diego Sheriff’s

25

Department George Bailey Detention Facility (“GBDF”), and proceeding pro se, filed a

26

civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.)

27

Plaintiff claims two San Diego County Sheriff’s Department Captains, one at GBDF,

28

and another at the San Diego Central Jail (“SDCJ”), violated his Eighth Amendment rights
1
17cv1057

1

by confining him in a five-foot by seven-foot cell with two other inmates on May 15, 2016.1

2

(ECF No. 1 at 1-2.)

3

On August 1, 2017, the Court dismissed the action because Plaintiff failed to pay the

4

filing fees required to commence a civil action by 28 U.S.C. § 1914(a) (ECF No. 3), but

5

granted him forty-five days leave in which to pay those fees or file a Motion to Proceed In

6

Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Id. at 4.)

7

He has since filed a Motion to Proceed In Forma Pauperis (“IFP”) (ECF No. 4),

8

together with a supplemental affidavit attesting as to his trust account activity and balances

9

as required by 28 U.S.C. § 1915(a)(2) (ECF No. 8).

10
11

I.

Motion to Proceed IFP

12

All parties instituting any civil action, suit, or proceeding in a district court of the

13

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

14

$400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

15

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

16

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

17

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

18

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

19

Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d

20
21
1

25

Plaintiff has since been transferred from County custody to the Otay Mesa Detention
Center (“OMDC”), which is operated by CoreCivic, formerly known as the Corrections
Corporation of America or CCA. CoreCivic is a private company that operates prison and
detention facilities, under contract with state and federal government agencies. See
http://www.cca.com/insidecca/corrections-corporation-of-America-rebrands-as-corecivic
(last visited Oct. 24, 2017).

26

2

22
23
24

27
28

In addition to the $350.00 statutory fee, civil litigants must pay an additional
administrative fee of $50.00. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of
Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50.00
administrative fee does not apply to persons granted leave to proceed IFP. Id.
2
17cv1057

1

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

2

See 28 U.S.C. § 1915(b)(1), (b)(2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

3

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

4

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

5

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

6

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

7

trust account statement, the Court assesses an initial payment of twenty percent of (a) the

8

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

9

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

10

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

11

custody of the prisoner then collects subsequent payments, assessed at twenty percent of

12

the preceding month’s income, in any month in which his account exceeds ten dollars, and

13

forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. §

14

1915(b)(2); Bruce, 136 S. Ct. at 629.

15

In support of his IFP Motion, Plaintiff has submitted two prison certificates certified

16

authorized OMDC officials. (ECF No. 4 at 5; ECF No. 8 at 4); see also 28 U.S.C.

17

§ 1915(a)(2); S.D. Cal. Civ. R. 3.2; Andrews, 398 F.3d at 1119. These certificates attest

18

that Plaintiff carried an average monthly balance of $29.67, had average monthly deposits

19

of $30.00 to his account over the six-month period immediately preceding the filing of his

20

Motion, and had an available balance of $56.34 on the books at the time of filing. (ECF

21

No. 4 at 5; ECF No. 8 at 4.) Thus, the Court GRANTS Plaintiff’s Motion to Proceed IFP

22

(ECF No. 4) and assesses his initial partial filing fee to be $6.00 pursuant to 28 U.S.C.

23

§ 1915(b)(1).

24

However, the Court will direct the Warden of OMDC, or his designee, to collect this

25

initial fee only if sufficient funds are available in Plaintiff’s account at the time this Order

26

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

27

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

28

the reason that the prisoner has no assets and no means by which to pay the initial partial
3
17cv1057

1

filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C.

2

§ 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based

3

solely on a “failure to pay . . . due to the lack of funds available to him when payment is

4

ordered.”). The remaining balance of the $350.00 total fee owed in this case must be

5

collected and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(1).

6
7

II.

Screening of Plaintiff’s Complaint

8

A.

9

Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre-

10

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

11

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

12

is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

13

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

14

28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

15

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

16

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

17

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

18

Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

Standard of Review

19

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

20

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

21

Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

22

1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

23

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

24

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

25

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

26

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

27

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

28

//
4
17cv1057

1

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

2

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

3

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

4

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

5

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

6

the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

7

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

8
9

B.

Plaintiff’s Factual Allegations

10

Plaintiff claims that upon his arrival at the SDCJ on or about May 15, 2016, he was

11

housed in a five-foot by nine-foot cell with two other inmates. (See ECF No. 1 at 1.) He

12

filed a grievance, but was told: “That’s how these cells are.” (Id. at 2.) Plaintiff claims he

13

remained confined to his bed because there was “no[t] enough space to move around,” and

14

because his cellmates were either playing cards or working out. (Id.) Plaintiff complained

15

to “numerous officials,” and asked Captain Flynn to “develop and implement a plan

16

designed to properly house [them].” (Id.) Flynn allegedly replied: “Don’t come to jail.”

17

(Id.)

18

On an unspecified date, Plaintiff was transferred to GBDF where he was assigned to

19

a five-foot by seven-foot cell, again with two cellmates. (ECF No. 1 at 2.) Plaintiff

20

continued to complain to Captain Duke, who rejected his grievances. (Id. at 2, 7.)

21

Plaintiff seeks $33 million in damages against Defendants for exposing him and a

22

list of his fellow inmates3 to “inhumane living conditions” in violation of the Eighth

23

Amendment. (Id. at 2-4.)

24
25
26
27
28

3

Because Plaintiff is proceeding pro se he may not represent anyone other than himself.
See Simon v. Hartford Life & Accident Ins. Co., 546 F.3d 661, 664 (9th Cir. 2008) (“[T]he
general rule prohibiting pro se plaintiffs from pursuing claims on behalf of others in a
representative capacity.”).
5
17cv1057

1

C.

2

First, while Plaintiff invokes the Eighth Amendment’s prohibition on cruel and

3

unusual punishments (see ECF No. 1 at 2), it is unclear whether he was convicted at the

4

time he was held at the SCDJ and GBDF.

Overcrowding

5

“Inmates who sue prison officials for injuries suffered while in custody may do so

6

under the Eighth Amendment’s Cruel and Unusual Punishment Clause or, if not yet

7

convicted, under the Fourteenth Amendment’s Due Process Clause.” Castro v. Cty. of Los

8

Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016), cert. denied sub nom. Los Angeles Cty.,

9

Cal. v. Castro, 137 S. Ct. 831 (2017) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)

10

(holding that, under the Due Process Clause, a detainee may not be punished prior to

11

conviction)). But under either Amendment, Plaintiff must allege facts sufficient to show

12

that Defendants acted with “deliberate indifference” in order to state a plausible claim for

13

relief. Id. at 1068; Iqbal, 556 U.S. at 678; Hatter v. Dyer, 154 F. Supp. 3d 940, 944-54

14

(E.D. Cal. 2015) (applying Castro’s deliberate indifference standard to pretrial detainee’s

15

over-crowding and general conditions of confinement claims).

16

Here, Plaintiff alleges Defendants Flynn and Duke violated his Eighth Amendment

17

rights by exposing him to “inhumane living conditions,” specifically by requiring him to

18

share his cells with two other detainees, and failing to respond to his complaints. (ECF No.

19

1 at 2-3.) It is well settled that “a prison official cannot be found liable under the Eighth

20

Amendment for denying an inmate humane conditions of confinement unless the official

21

knows of and disregards an excessive risk to inmate health or safety; the official must both

22

be aware of facts from which the inference could be drawn that a substantial risk of serious

23

harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837

24

(1994); see Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014). This “deliberate

25

indifference” standard requires more than “gross negligence” or even “recklessness.”

26

Farmer, 511 U.S. at 836, 836 n.4; Hatter, 154 F. Supp. 3d at 944.

27

First, Plaintiff has failed to allege facts sufficient to plausibly suggest that either the

28

SDCJ or GBDF’s three-man cells posed any “excessive risk to [his] health or safety.”
6
17cv1057

1

Farmer, 511 U.S. at 837; Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 471 (1989)

2

(finding overcrowding allegations, “standing alone,” “ha[d] no constitutional

3

significance.”); Rhodes v. Chapman, 452 U.S. 337, 348-49 (1981) (finding double-celling

4

of inmates by itself does not inflict unnecessary or wanton pain or constitute grossly

5

disproportionate punishment in violation of Eighth Amendment). An overcrowding claim

6

is cognizable only if the plaintiff alleges that crowding has caused an increase in violence,

7

has reduced the provision of other constitutionally required services, or has reached a level

8

rendering the institution no longer fit for human habitation. See Balla, 869 F.2d at 471;

9

Hoptowit v. Ray, 682 F.2d 1237, 1248–49 (9th Cir.1982) (noting that overcrowding itself

10

is not an Eighth Amendment violation, but that it can lead to specific effects that might

11

violate the Constitution).

12

Second, Plaintiff fails to allege facts sufficient to show that either Defendants Flynn

13

or Duke acted with “deliberate indifference” to any substantial risk of serious harm. Castro,

14

833 F.3d at 1068 (citing Farmer, 511 U.S. at 837). Plaintiff alleges only that he “spoke to”

15

Flynn and Duke and that he filed grievances related to his cell conditions. (ECF No. 1).

16

The mere fact that neither responded to Plaintiff’s complaints to his satisfaction, does not,

17

without more, rise to the level of deliberate indifference. Critically, Plaintiff does not

18

further allege that either Defendant was “aware of facts from which the inference could be

19

drawn that a substantial risk of serious harm exist[ed],” nor does he allege that either

20

actually “dr[e]w th[at] inference.” Hatter, 154 F. Supp. 3d at 944 (finding “inadvertent

21

failure[s]” and “mere inaction” insufficient to show deliberate indifference to

22

overcrowding).

23

Therefore, the Court finds Plaintiff’s Complaint must be dismissed sua sponte for

24

failing to state a claim upon which § 1983 relief may be granted. See 28 U.S.C.

25

1915(e)(2)(B)(ii); § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

26

//

27

//

28

//
7
17cv1057

1

III.

Conclusion

2

Accordingly, the Court:

3

(1)

4
5

GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. §
1915(a) (ECF No. 4);

(2)

ORDERS the Warden of the OMDC, or his designee, to collect from

6

Plaintiff’s trust account the $6.00 initial filing fee assessed, if those

7

funds are available at the time this Order is executed, and forward

8

whatever balance remains of the full $350.00 owed in monthly

9

payments in an amount equal to twenty percent (20%) of the preceding

10

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

11

Plaintiff’s account exceeds $10.00 pursuant to 28 U.S.C. § 1915(b)(2)

12

(all payments must be clearly identified by the name and number

13

assigned to this action);

14

(3)

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

15

Figueroa, Warden, Otay Mesa Detention Center, P.O. Box 438150, San

16

Diego, California 92143-8150;

17

(4)

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

18

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

19

1915A(b)(1); and

20

(5)

GRANTS Plaintiff forty-five (45) days leave from the date of this

21

Order in which to file an Amended Complaint which cures the

22

deficiencies of pleading described in this Order. Plaintiff’s Amended

23

Complaint must be complete by itself without reference to his original

24

pleading. Defendants not named and any claim not re-alleged in his

25

Amended Complaint will be considered waived. See S.D. Cal. Civ. R.

26

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

27

1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the

28

original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)
8
17cv1057

1

(noting that claims dismissed with leave to amend which are not re-

2

alleged in an amended pleading may be “considered waived if not

3

repled.”).

4

If Plaintiff fails to amend within 45 days, the Court will enter a final Order

5

dismissing this civil action based both on Plaintiff’s failure to state a claim upon which

6

relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and his failure

7

to prosecute in compliance with a court order requiring amendment. See Lira v. Herrera,

8

427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the

9

opportunity to fix his complaint, a district court may convert the dismissal of the complaint

10

into dismissal of the entire action.”).

11

IT IS SO ORDERED.

12
13

DATED: November 16, 2017

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
17cv1057