Johnson v. Doe et al

Filing 14

ORDER: Plaintiff's Motion for Leave to Proceed in forma pauperis (ECF 4 ) is Granted. The Secretary of the CDCR, or his designee, is ordered to collect from Plaintiff's prison trust account the $350 filing fee owed in this case by ga rnishing monthly payments from his account in an amount equal to 20% of the preceding month's income and forwarding those payments to the Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28 U.S.C. 1915(b)( 2). Plaintiff's Motion for Appointment of Counsel (ECF 9 ) is Denied. The Court sua sponte dismisses the Plaintiff's Complaint. Plaintiff is Granted forty-five (45) days leave in which to file an Amended Complaint. Signed by Judge William Q. Hayes on 10/18/2017. (All non-registered users served via U.S. Mail Service. Per Order, blank Amended Complaint form also sent to Plaintiff. Order electronically transmitted to Secretary of CDCR. Per Order, copy of Order also mailed to Secretary of CDCR.) (ajs)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 SEDRIC EUGENE JOHNSON, CDCR #AZ-2648, ORDER: Plaintiff, 13 vs. 14 15 Case No.: 3:17-cv-01309-WQH-WVG JOHN DOE, et al., Defendants. 16 17 18 19 Sedric Eugene Johnson (“Plaintiff”), incarcerated at Kern Valley State Prison 20 located in Delano, California, is proceeding pro se in this case with a civil rights Complaint 21 filed pursuant to 22 U.S.C. § 1983 on June 26, 2017 (ECF No. 1). In addition, Plaintiff has 22 filed a “Declaration in Support of Complaint” (ECF No. 5). 23 Plaintiff has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a); 24 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 25 § 1915(a) (ECF No. 4). He has also filed a Motion to Appoint Counsel (ECF No. 9). 26 I. Motion to Proceed IFP 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 3:17-cv-01309-WQH-WVG 1 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 5 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 6 Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 7 (9th Cir. 2015), regardless of whether his action is ultimately dismissed., see 28 U.S.C. § 8 1915(b)(1)-(2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). Section 1915(a)(2) 9 requires prisoners seeking leave to proceed IFP to submit a “certified copy of the trust fund 10 account statement (or institutional equivalent) for . . . the 6-month period immediately 11 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 12 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses 13 an initial payment of 20% of (a) the average monthly deposits in the account for the past 14 six months, or (b) the average monthly balance in the account for the past six months, 15 whichever is greater, unless the prisoner has no assets. 28 U.S.C. § 1915(b)(1); 28 U.S.C. 16 § 1915(b)(4). The institution having custody of the prisoner then collects subsequent 17 payments, assessed at 20% of the preceding month’s income, in any month in which his 18 account exceeds $10, and forwards those payments to the Court until the entire filing fee 19 is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. 20 In support of his Motion to Proceed IFP, Plaintiff has submitted a copy of his CDCR 21 Inmate Statement Report (ECF No. 4 at 7), together with a prison certificate attesting as to 22 his trust account activity. Id. at 4; see 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; 23 Andrews, 398 F.3d at 1119. These statements show that Plaintiff has had no money in his 24 trust account for the six months preceding the filing of this action, and that he had a zero 25 balance at the time of filing. See ECF No. 4 at 4-7. 26 “In no event shall a prisoner be prohibited from bringing a civil action or appealing 27 a civil action or criminal judgment for the reason that the prisoner has no assets and no 28 means by which to pay the initial partial filing fee.” 28 U.S.C. § 1915(b)(4); see also 2 3:17-cv-01309-WQH-WVG 1 Bruce, 103 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts 2 as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure 3 to pay . . . due to the lack of funds available to him when payment is ordered.”). Therefore, 4 the Court grants Plaintiff’s Motion to Proceed IFP (ECF No. 4), declines to “exact” any 5 initial filing fee because his trust account statement shows he “has no means to pay it,” 6 Bruce, 136 S. Ct. at 629, and directs the Secretary of the California Department of 7 Corrections and Rehabilitation (CDCR) to collect the entire $350 balance of the filing fees 8 required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the 9 installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 10 11 12 II. Motion for Appointment of Counsel Plaintiff also requests that the Court appoint him counsel due to his indigence and the “complexity” of the issues involved in this case. (ECF No. 9 at 1.) 13 There is no constitutional right to counsel in a civil case; and Plaintiff’s Complaint 14 does not demand that the Court exercise its limited discretion to request than an attorney 15 represent him pro bono pursuant to 28 U.S.C. § 1915(e)(1) at this stage of the case. See 16 Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of 17 America, 390 F.3d 1101, 1103 (9th Cir. 2004). Only “exceptional circumstances” support 18 such a discretionary appointment. Terrell v. Brewer, 935 F.3d 1015, 1017 (9th Cir. 1991); 19 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Exceptional circumstances exist 20 where there is cumulative showing of both a likelihood of success on the merits and a 21 demonstrated inability of the pro se litigant to articulate his claims in light of their legal 22 complexity. Id. 23 As currently pleaded, Plaintiff’s Complaint demonstrates that while he may not be 24 formally trained in law, he nevertheless is fully capable of legibly articulating the facts and 25 circumstances relevant to his claims, which are typical and not legally “complex.” 26 Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed below, Plaintiff has yet 27 to show he is likely to succeed on the merits of the claims. Therefore, the Court DENIES 28 Plaintiff’s Motion for Appointment of Counsel (ECF No. 9). 3 3:17-cv-01309-WQH-WVG 1 III. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A(b) 2 A. Standard of Review 3 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 4 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, 5 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 6 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 7 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 8 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 9 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 10 targets of frivolous or malicious suits need not bear the expense of responding.’” 11 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted). 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 F.3d 15 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual 16 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 17 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 18 1121. 19 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 20 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 21 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 22 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 23 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 24 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 25 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 26 B. Eighth Amendment Excessive Force Claims 27 On August 3, 2016, Plaintiff was housed at Centinela State Prison (“CEN”). See 28 ECF No. 1 at 3. On that date, Plaintiff entered the “chow hall” for breakfast. Id. As 4 3:17-cv-01309-WQH-WVG 1 Plaintiff approached the “chow hall” he “forgot” to remove his hat due to “feeling self- 2 conscious about [his] hair.” Id. A correctional officer directed his flashlight at Plaintiff 3 which Plaintiff took as an instruction to remove the hat. Id. However, because Plaintiff 4 did not receive a “direct acknowledgement” of the perceived order to remove his hat, he 5 continued on into the “chow hall.” Id. Once again, the unnamed correctional officer 6 flashed his light at Plaintiff and “patt[ed] his head,” indicating Plaintiff should remove his 7 hat. Id. Plaintiff refused. Id. 8 9 The unnamed correctional officer “attempted” to grab Plaintiff’s arm, advised Plaintiff that he was being escorted out of the area, and “denied service” to Plaintiff. Id. 10 Plaintiff told this officer that he was “not a threat” and was able to “walk on [his] own 11 behalf.” Id. at 4. Even though Plaintiff was “obviously being compliant,” he was “grabbed, 12 slammed, and placed into restraints.” Id. Plaintiff was then taken to the program office 13 and placed in a “stand up cage.” Id. Plaintiff was released back to his cell and no 14 disciplinary report was issued. Id. 15 Any physical application of force against a person in custody, whether it be through 16 brute strength, chemical or other weaponry, or mechanical restraint, may not be excessive. 17 See Whitley v. Albers, 475 U.S. 312 (1986) (prison shooting); Hudson v. McMillian, 503 18 U.S. 1 (1992) (prison beating); LeMaire v. Maass, 12 F.3d 1444, 1450-53, 1457, 1460 (9th 19 Cir. 1993) (prison’s use of in-shower and in-cell leg and waist restraints). “That is not to 20 say that every malevolent touch by a prison guard gives rise to a federal cause of action.” 21 Hudson, 503 U.S. at 10 (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (“Not 22 every push or shove, even if it may later seem unnecessary in the peace of a judge’s 23 chambers, violates a prisoner’s constitutional rights”). 24 Amendment, the Defendant must use force which is “unnecessary” and “wanton.” Whitley, 25 475 U.S. at 319. “It is obduracy and wantonness, not inadvertence or error in good faith, 26 that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, 27 whether that conduct occurs in connection with establishing conditions of confinement, 28 supplying medical needs, or restoring official control over a tumultuous cellblock.” Id. In order to violate the Eighth 5 3:17-cv-01309-WQH-WVG 1 Thus, a constitutional violation can only be established if force was used 2 “maliciously and sadistically for the purpose of causing harm.” Id.; see also Wilson v. 3 Seiter, 501 U.S. 294, 298 (1991) (claims that an official has inflicted cruel and unusual 4 punishment contain both an objective component as well as a subjective “inquiry into the 5 prison official’s state of mind”). Here, the Court finds that Plaintiff’s claims, due in part 6 to a lack of sufficient factual allegations, fail to rise to the level of an Eighth Amendment 7 violation. There are no factual allegations from which the Court could find that any of the 8 named Defendants acted with malicious or sadistic intent. 9 Accordingly, the Court finds that Plaintiff has failed to state an Eighth Amendment 10 against any of the named Defendants, and that these claims must be dismissed pursuant to 11 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 1126-27; Resnick, 213 12 F.3d at 446. 13 C. Eighth Amendment Conditions of Confinement Claim 14 Plaintiff claims that an unnamed Correctional Sergeant denied him a “day’s portion 15 of lunch and breakfast which the Court construes as an Eighth Amendment conditions of 16 confinement claim.” ECF No. 1 at 2. To state a claim for cruel and unusual punishment, 17 however, Plaintiff must allege facts sufficient to show that the conditions of his 18 confinement subjected him to “unquestioned and serious deprivations of basic human 19 needs.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Wilson v. Seiter, 501 U.S. 294, 20 298-300 (1991). The Eighth Amendment “does not mandate comfortable prisons,” and 21 conditions imposed may be “restrictive and even harsh.” Rhodes, 452 U.S. at 347, 349. 22 Adequate food is a basic human need protected by the Eighth Amendment. Hoptowit v. 23 Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). However, prison food need only be “adequate 24 to maintain health.” LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993); Keenan v. 25 Hall, 83 F.3d 1083, 1091 (9th Cir. 1996). 26 The Ninth Circuit has held that the “sustained deprivation of food can be cruel and 27 unusual punishment when it results in pain without any penological purpose.” Foster v. 28 Runnels, 554 F.3d 807, 812-13 (9th Cir. 2009) (the denial of 16 meals in 23 days is a 6 3:17-cv-01309-WQH-WVG 1 violation of the Eighth Amendment). Here, Plaintiff claims he was denied two meals on 2 the same day which are insufficient allegations to show that he had a “sustained 3 deprivation” of nutrition that would rise to the level of an Eighth Amendment violation. 4 IV. Conclusion and Order 5 Based on the foregoing, the Court: 6 1) GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 4). 7 2) DIRECTS the Secretary of the CDCR, or his designee, to collect from 8 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 9 payments from his account in an amount equal to twenty percent (20%) of the preceding 10 month’s income and forwarding those payments to the Clerk of the Court each time the 11 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 12 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 13 ASSIGNED TO THIS ACTION; 14 15 3) 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; 16 4) DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 9). 17 5) DISMISSES Plaintiff’s Complaint sua sponte for failing to state a claim upon 18 19 which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 6) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 20 which to file an Amended Complaint which cures the deficiencies of pleading noted. 21 Plaintiff’s Amended Complaint must be complete by itself without reference to his original 22 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 23 will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard 24 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 25 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 26 (noting that claims dismissed with leave to amend which are not re-alleged in an amended 27 pleading may be “considered waived if not repled.”). 28 The Court DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy 7 3:17-cv-01309-WQH-WVG 1 of its form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for Plaintiff’s use and 2 to assist him in complying with LR 8.2.a’s requirements. 3 4 IT IS SO ORDERED. Dated: October 18, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 3:17-cv-01309-WQH-WVG

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