Ruiz v. Oliveira et al

Filing 7

ORDER granting 2 Motion for Leave to Proceed in forma pauperis; and Dismissing First Amended Complaint for Failing to State a Claim Pursuant to 28U.S.C. § 1915(e)(2)and §1915A(b) (Order electronically transmitted to Secretary of CDCR). Signed by Judge Roger T. Benitez on 12/4/2017. (All non-registered users served via U.S. Mail Service)(anh)

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FILED

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DEC 0 5 2017

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CLERK US DISI 111CT COURT
SOUTHERN DISTRICT OF CALIFORNIA
BY
Q£;l/Vl DEPUTY

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROGELIO RUIZ,
CDCR #F-59761,

Case No.: 3: 17-cv-01914-BEN-NLS
Plaintiff,

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vs.

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R. OLIVEIRA; B. SELF; M. VOONG;
CDCR OFFICERS,

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Defendants.

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ORDER:
(1) GRANTING PLAINTIFF'S
MOTION TO PROCEED IFP; AND
(2) DISMISSING FIRST AMENDED
COMPLAINT FOR FAILING TO
STATE A CLAIM PURSUANT TO 28
U.S.C. § 1915(e)(2) AND§ 1915A(b)

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I.

Procedural History

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On September 19, 2017, Rogelio May Ruiz ("Plaintiff'), a prisoner currently

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incarcerated at Corcoran State Prison located in Corcoran, California, and proceeding pro

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se, filed a civil rights complaint ("Comp!.") pursuant to 42 U.S.C. § 1983 (ECF No. 1).

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Plaintiff did not prepay the civil filing fee; instead he filed a Motion to Proceed In Forma

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Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).

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Ill

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On October 4, 2017, the Court dismissed his Complaint for failing to comply with

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Rule 8 and S.D. Local Rule 5.1.a. (ECF No. 3.) Plaintiffs Motion to Proceed IFP was

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denied as moot and without prejudice to re-file with an amended pleading. (Id.) On

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October 30, 2017, Plaintiff filed his First Amended Complaint ("FAC"). (ECF No. 4.)

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II.

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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, except an application for writ of habeas corpus, must pay a filing fee. See

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28 U.S.C. § 1914(a). An action may proceed despite the plaintiffs failure to prepay the

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entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See

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Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, ifthe plaintiff is a

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prisoner and is granted leave to proceed IFP, he nevertheless remains obligated to pay the

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entire fee in installments, regardless of whether his action is ultimately dismissed. See 28

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U.S.C. § 1915(b)(l) & (2); Taylor v. Delatoore, 281FJd844, 847 (9th Cir. 2002).

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

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("PLRA"), a prisoner seeking leave to proceed IFP must also submit a "certified copy of

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the 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 of20% of: (a) the average monthly deposits in the

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

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

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

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collects subsequent payments, assessed at 20% of the preceding month's income, in any

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month in which the prisoner's account exceeds $10, and forwards them to the Court until

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

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Ill

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In support of his IFP Motion, Plaintiff has submitted the certified copy of his trust

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account statement required by 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2.

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Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiffs trust account statements

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which show that he has had no monthly deposits, and has carried an average balance of

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zero in his account during the 6-month period preceding the filing of this action, and had

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no available funds to his credit at the time of filing. See 28 U.S.C. § 1915(b)(4)

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(providing that "[i]n no event shall a prisoner be prohibited from bringing a civil action

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or appealing a civil action or criminal judgment for the reason that the prisoner has no

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assets and no means by which to pay the initial partial filing fee."); Taylor, 281 F.3d at

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850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of

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a prisoner's IFP case based solely on a "failure to pay ... due to the lack of funds

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available to him when payment is ordered.").

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Therefore, the Court GRANTS Plaintiffs 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)(l). However, the entire $350

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balance of the filing fees due for this case must be collected by the California Department

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of Corrections and Rehabilitation ("CDCR") and forwarded to the Clerk of the Court

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pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(l).

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II.

Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)
Standard of Review

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A.

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Notwithstanding Plaintiffs IFP status or the payment of any partial filing fees, the

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PLRA also obligates the Court to review complaints filed by all persons proceeding IFP

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and by those, like Plaintiff, who are "incarcerated or detained in any facility [and]

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accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the

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terms or conditions of parole, probation, pretrial release, or diversionary program," "as

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soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2), 1915A(b). Under

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these statutes, the Court must sua sponte dismiss complaints, or any portions thereof,

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1 which are frivolous, malicious, fail to state a claim, or which seek damages from
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defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); Lopez v. Smith,

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203 F.3d 1122, 1126-27 (9th Cir. 2000) (en bane)(§ 1915(e)(2)); Rhodes v. Robinson,

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621F.3d1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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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 (2009)

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(citing Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Determining whether a

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complaint states a plausible claim for relief [is] ... a context-specific task that requires

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the reviewing court to draw on its judicial experience and common sense." Id. The "mere

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possibility of misconduct" falls short of meeting this plausibility standard. Id.; see also

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Moss v. U.S. Secret Serv., 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. at679; seealsoResnickv. Hayes, 213 F.3d443, 447 (9th Cir. 2000)

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("[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to

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the plaintiff."); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

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§ 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)").

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However, while the court "ha[s] an obligation where the petitioner is prose,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (citing Bretz v. Kelman, 773 F .2d 1026, 1027 n.1 (9th Cir. 1985)), it may not

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"supply essential elements of claims that were not initially pied." Ivey v. Bd. ofRegents

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of the Univ. ofAlaska, 673 F.2d 266, 268 (9th Cir. 1982).

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42 u.s.c. § 1983

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B.

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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.

4 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 (1)

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deprivation of a right secured by the Constitution and laws of the United States, and (2)

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that the deprivation was committed by a person acting under color of state law." Tsao v.

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

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C.

Grievance Procedures

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Plaintiff has failed to allege a viable claim against any of the individually named

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Defendants. Plaintiffs FAC is not entirely clear but he appears to allege that Defendants

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have violated his constitutional rights due to the manner in which they responded to his

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administrative grievances. (See FAC at 2-4.) However, a prison official's alleged

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improper processing of an inmate's grievances or appeals, without more, cannot serve as

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a basis for section 1983 liability. See generally Ramirez v. Galaza, 334 F.3d 850, 860

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(9th Cir. 2003) (prisoners do not have a "separate constitutional entitlement to a specific

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prison grievance procedure.") (citation omitted); Mann v. Adams, 855 F.2d 639, 640 (9th

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Cir. 1988) (due process not violated simply because defendant fails properly to process

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

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545, 547 (9th Cir. 2014) (district court properly dismissed section 1983 claims against

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defendants who "were only involved in the appeals process") (citing Ramirez, 334 F.3d at

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860).

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Accordingly, Plaintiffs entire FAC is dismissed for failing to state a claim upon

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which relief may be granted. Because he is proceeding pro se, however, the Court having

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1 now provided him with "notice of the deficiencies in his complaint," will also grant
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Plaintiff an opportunity to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

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2012) (citing Ferdikv. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

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III.

Conclusion and Order

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Good cause appearing, the Court:

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1.

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

(ECF No. 2).
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ORDERS the Secretary of the CDCR, or his designee, to collect from

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Plaintiffs prison trust account the $350 filing fee owed in this case by collecting monthly

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

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month's income and forwarding them to the Clerk of the Court each time the amount in

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hisaccountexceeds$10inaccordancewith28U.S.C. § 1915(b)(2). ALL PAYMENTS

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MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

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THIS ACTION.

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3.

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

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Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883,

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Sacramento, California, 94283-0001.

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4.

DISMISSES Plaintiffs FAC (ECF No. 4) for failing to state a claim upon

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which§ 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

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1915A(b)(l).

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5.

GRANTS Plaintiff thirty (30) days leave from the date of this Order in

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which to file a Second Amended Complaint that cures the deficiencies of pleading

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described above. Plaintiffs Second Amended Complaint must be complete by itself

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without reference to his original complaint. See S.D. Cal. CivLR 15.l; Hal Roach

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Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) ("[A]n

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amended pleading supersedes the original."); Lacey v. Maricopa Cnty., 693 F.3d 896, 928

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1 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re2

alleged in an amended pleading may be "considered waived if not repled.").

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Should Plaintiff elect not to proceed by filing a Second Amended Complaint

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within 30 days, the Court will enter a final Order of dismissal of this civil action for

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failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and§ 1915A(b)(l), and

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for failure to prosecute in compliance with a Court Order requiring amendment. See

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Ferdikv. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to

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prosecute permitted if plaintiff fails to respond to a court's order requiring amendment of

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complaint); Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) ("If a plaintiff does not

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

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dismissal of the complaint into dismissal of the entire action.").

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6.

The Clerk of Court is directed to mail Plaintiff a civil rights form complaint

for his use in amending.

IT IS SO ORDERED.

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United States District Judge

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