Diaz v. McGee et al

Filing 3

ORDER: 1) Granting 2 Motion to Proceed in Forma Pauperis and 2) Dismissing Complaint for Failing to State Claim Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. The Secretary CDCR, or his designee, is ordered to collect from prison tru st 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 th e Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). The Clerk of the Court is directed to serve a copy of this Order on Scott Kernan, Secretary, California Department of Corrections and Rehabilitation , P.O. Box 942883, Sacramento, California, 94283-0001. The Court Grants Plaintiff forty-five (45) days leave from the date of this Order in which to file an Amended Complaint which cures all the deficiencies of pleading noted. The Clerk of Court i s directed to mail Plaintiff a copy of a court approved form § 1983 complaint. Signed by Judge Larry Alan Burns on 09/25/2017. (Order electronically transmitted and mailed via U.S. Mail Service to Secretary of CDCR) (Plaintiff served copy of this Order and blank § 1983 complaint form via U.S. Mail Service)(ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RONALD C. DIAZ,
CDCR #AD2009

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ORDER:

Plaintiff,

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Case No.: 3:17-cv-1772-LAB-BLM

v.

(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS;
AND

N. McGEE; S. RUTHLEDGE; D.
HOLBROOK; J. WILBORN; CALVERT;
RICHARD J. DONOVAN
CORRECTIONAL FACILTY ,

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

Defendants.

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Ronald C. Diaz (“Plaintiff”), a state inmate currently incarcerated at California

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State Prison - Los Angeles County located in Lancaster, California and proceeding pro

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se, has filed a civil rights Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (ECF No.

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1.) He alleges violation of his First, Eighth and Fourteenth Amendment rights when he

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was previously housed at the Richard J. Donovan Correctional Facility (“RJD”) in San

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Diego, California. (Compl. at 1.) In addition, Plaintiff has filed a Motion to Proceed In

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Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.)
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I.

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Plaintiff’s Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the

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United States must satisfy a filing fee requirement. See 28 U.S.C. § 1914(a).1 An action

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may proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted

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leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). Rodriguez v. Cook, 169 F.3d

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1176, 1177 (9th Cir. 1999). However, if the plaintiff is a prisoner, even if he is granted

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leave to proceed IFP he remains obligated to pay the full entire fee in “increments,” see

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Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his

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action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2).

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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act

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(“PLRA”), prisoners seeking leave to proceed IFP must submit a “certified copy of the

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trust fund account statement (or institutional equivalent) for the . . . six-month period

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immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.

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King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement,

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the Court assesses an initial payment of 20 percent of (a) the average monthly deposits in

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

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the past six months, whichever is greater, unless the prisoner has no assets. See 28

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U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the

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prisoner collects subsequent payments, assessed at 20 percent of the preceding month’s

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income, in any month in which the prisoner’s account exceeds $10, and forwards those

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payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

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In support of his IFP Motion, Plaintiff has submitted a prison certificate attesting to his

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trust account balance and activity for the six-month period prior to the filing of his

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Complaint as required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. This

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certificate shows that Plaintiff has no available funds to his credit at the time of filing.

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In addition to the $350 statutory fee for this action, 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. Dec. 1, 2014)). The additional $50 administrative fee does not apply to persons
granted leave to proceed IFP. Id.
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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), and

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assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). See 28 U.S.C.

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§ 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a

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civil action or appealing a civil action or criminal judgment for the reason that the

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prisoner has no assets and no means by which to pay the initial partial filing fee.”);

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Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding that 28 U.S.C.

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

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

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ordered.”) However, the entire $350 balance for this case must be forwarded to the Clerk

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of the Court pursuant to the installment payment provisions set forth in 28 U.S.C.

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§ 1915(b)(1).

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II.

Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

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A.

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“The Court shall review, before docketing, if feasible or, in any event, as soon as

Standard of Review

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practicable after docketing,” complaints filed by all persons proceeding IFP, and by those

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who are “incarcerated or detained in any facility [and] accused of, sentenced for, or

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adjudicated delinquent for, violations of criminal law or the terms or conditions of parole,

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probation, pretrial release, or diversionary program.” See 28 U.S.C. §§ 1915(e)(2) and

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1915A(b). The Court must sua sponte dismiss complaints, or any portions thereof, which

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are frivolous, malicious, fail to state a claim, or which seek damages from defendants

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who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d

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1122, 1126-27 (9th Cir. 2000).

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All complaints must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Determining

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whether a complaint states a plausible claim for relief [is] . . . a context-specific task that
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requires the reviewing court to draw on its judicial experience and common sense.” Id. at

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679. The “mere possibility of misconduct” falls short of meeting the Iqbal plausibility

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

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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(“Under § 1983, when determining whether a complaint states a claim, a court must

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accept as true all allegations of material fact and must construe those facts in the light

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most favorable to the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

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1998) (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil

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Procedure 12(b)(6)”). However, while the court has an “obligation . . . where the

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petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally

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and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342

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(9th Cir. 2010), citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en

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banc), it may not, in so doing, “supply essential elements of the claim that were not

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initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268

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(9th Cir. 1982).

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“Section 1983 creates a private right of action against individuals who, acting

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under color of state law, violate federal constitutional or statutory rights.” Devereaux v.

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Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks

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and citations omitted). “To establish § 1983 liability, a plaintiff must show both

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(1) deprivation of a right secured by the Constitution and laws of the United States, and

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(2) that the deprivation was committed by a person acting under color of state law.” Tsao

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v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

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B.

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Plaintiff’s Allegations
On August 28, 2015, Plaintiff was transported from RJD to Salinas Valley State

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Prison and placed on suicide watch. (See Compl. at 3.) When he was transported,

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Plaintiff claims RJD prison officials had the responsibility to “secure and pack up

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Plaintiff’s personal property.” (Id.) However, because RJD officials believed Plaintiff

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would return that evening to RJD, they did not secure his property which resulted in all of

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Plaintiff’s property being stolen by other inmates. (Id.)

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C.

Loss of Property Claims

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The Due Process Clause protects prisoners from being deprived of property

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without due process of law, Wolff v. McDonald, 418 U.S. 539, 556 (1974), and prisoners

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have a protected interest in their personal property. Hansen v. May, 502 F.2d 728, 730

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(9th Cir. 1974). However, “[a]n unauthorized intentional deprivation of property by a

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[state actor] does not constitute a violation of the procedural requirements of the Due

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Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy

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for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor,

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451 U.S. 527, 541-44 (1981), overruled on other grounds by Daniels v. Williams, 474

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U.S. 327 (1986) (a deprivation of property allegedly caused by a state employee does not

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constitute a valid § 1983 constitutional claim if the state provides other adequate post-

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deprivation remedies); Zinermon v. Burch, 494 U.S. 113, 128 (1990) (a state post-

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deprivation remedy, e.g., a state tort action, precludes relief under § 1983 because it

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provides sufficient procedural due process).

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The Ninth Circuit has held that the California Tort Claims Act provides an

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additional adequate post-deprivation remedy for property deprivations caused by any

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public official. See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994); see CAL. GOV’T.

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CODE §§ 810-997.6. It does not matter whether or not Plaintiff succeeds in redressing his

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loss through these available state remedies; it is the existence of these alternate remedies

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that bars him from pursuing a procedural due process claim in a § 1983 action.

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Willoughby v. Luster, 717 F. Supp. 1439, 1443 (D. Nev.1989).
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D.

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Grievances
Plaintiff’s also fails to state a viable Section 1983 claim against Defendants for the

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manner in which they responded to his administrative grievances. The claims against

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these Defendants arise from Plaintiff’s allegations that they refused to grant his entire

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request for reimbursement when they responded to his administrative grievances.

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(Compl. at 19-23.) However, a prison official’s alleged improper processing of an

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inmate’s grievances or appeals, without more, cannot serve as a basis for section 1983

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liability. See generally Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (prisoners

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do not have a “separate constitutional entitlement to a specific prison grievance

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procedure.”) (citation omitted); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (due

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process not violated simply because defendant fails properly to process grievances

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submitted for consideration); see also Shallowhorn v. Molina, 572 Fed. Appx. 545, 547

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(9th Cir. 2014) (district court properly dismissed section 1983 claims against defendants

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who “were only involved in the appeals process”) (citing Ramirez, 334 F.3d at 860).

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Here, the Court finds that Plaintiff’s allegations against Defendants are insufficient

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to state a plausible due process claim. See Iqbal, 556 U.S. at 680-84 (citations omitted).

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E.

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Retaliation
Plaintiff claims that all the Defendants retaliated against him for filing grievances.

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(See Compl. at 29.) Retaliation against a prisoner for exercising his rights to speech or to

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petition the government may violate the First Amendment. See Rizzo v. Dawson, 778

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F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th

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Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison

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context, a viable claim of First Amendment retaliation entails five basic elements: (1) An

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assertion that a state actor took some adverse action against an inmate (2) because of (3)

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that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of

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his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

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Here, Plaintiff does not allege that any Defendants took “adverse action” against

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him because he was engaging in “protected conduct.” Id. Plaintiff acknowledges that

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Defendants attempted to reimburse him for some of his lost property and they also

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attempted to replace some of Plaintiff’s property which he ultimately refused.

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As set forth above, the “mere possibility of misconduct” or “unadorned, the

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defendant-unlawfully-harmed me accusation[s]” fall short of meeting Iqbal’s plausibility

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standard. Iqbal, 556 U.S. at 678. Therefore, Plaintiff’s claims of retaliation are dismissed

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for failing to state a claim.

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III.

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Leave to Amend
Because Plaintiff is proceeding without counsel, and he has now been provided

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with notice of his Complaint’s deficiencies, the Court will grant him leave to amend. See

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Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not

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dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C.

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§ 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint

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could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th

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Cir. 2012)).

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IV.

Conclusion and Orders

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Good cause appearing, the Court:

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1.

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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

(ECF No. 2).

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2.

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

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Plaintiff’s trust account the $350 owed in monthly payments in an amount equal to

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twenty percent (20%) of the preceding month’s income to the Clerk of the Court each

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time the amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2).

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ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND

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NUMBER ASSIGNED TO THIS ACTION.

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3:17-cv-1772-LAB-BLM

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3.

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) and § 1915A(b),

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and GRANTS him forty-five (45) days leave from the date of this Order in which to file

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an Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s

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Amended Complaint must be complete by itself without reference to his original

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

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claim not re-alleged in his Amended Complaint will be considered waived. See S.D. CAL.

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CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546

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

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

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amend which are not re-alleged in an amended pleading may be “considered waived if

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not repled.”).

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5.

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The Clerk of Court is directed to mail Plaintiff a copy of a court approved

form § 1983 complaint.
IT IS SO ORDERED.
Dated: September 25, 2017
Hon. Larry Alan Burns
United States District Judge

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