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 1 DEC 0 5 2017 2 CLERK US DISI 111CT COURT SOUTHERN DISTRICT OF CALIFORNIA BY Q£;l/Vl DEPUTY 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ROGELIO RUIZ, CDCR #F-59761, Case No.: 3: 17-cv-01914-BEN-NLS Plaintiff, 13 vs. 14 15 R. OLIVEIRA; B. SELF; M. VOONG; CDCR OFFICERS, 16 Defendants. 17 18 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) 19 20 I. Procedural History 21 On September 19, 2017, Rogelio May Ruiz ("Plaintiff'), a prisoner currently 22 incarcerated at Corcoran State Prison located in Corcoran, California, and proceeding pro 23 se, filed a civil rights complaint ("Comp!.") pursuant to 42 U.S.C. § 1983 (ECF No. 1). 24 Plaintiff did not prepay the civil filing fee; instead he filed a Motion to Proceed In Forma 25 Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 26 Ill 27 3:17-cv-01914-BEN-NLS 28 • • 1 On October 4, 2017, the Court dismissed his Complaint for failing to comply with 2 Rule 8 and S.D. Local Rule 5.1.a. (ECF No. 3.) Plaintiffs Motion to Proceed IFP was 3 denied as moot and without prejudice to re-file with an amended pleading. (Id.) On 4 October 30, 2017, Plaintiff filed his First Amended Complaint ("FAC"). (ECF No. 4.) 5 II. 6 Plaintiff's Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 7 United States, except an application for writ of habeas corpus, must pay a filing fee. See 8 28 U.S.C. § 1914(a). An action may proceed despite the plaintiffs failure to prepay the 9 entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 10 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, ifthe plaintiff is a 11 prisoner and is granted leave to proceed IFP, he nevertheless remains obligated to pay the 12 entire fee in installments, regardless of whether his action is ultimately dismissed. See 28 13 U.S.C. § 1915(b)(l) & (2); Taylor v. Delatoore, 281FJd844, 847 (9th Cir. 2002). 14 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 15 ("PLRA"), a prisoner seeking leave to proceed IFP must also submit a "certified copy of 16 the trust fund account statement (or institutional equivalent) for ... the six-month period 17 immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. 18 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, 19 the Court assesses an initial payment of20% of: (a) the average monthly deposits in the 20 account for the past six months, or (b) the average monthly balance in the account for the 21 past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 22 § 1915(b)(l); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then 23 collects subsequent payments, assessed at 20% of the preceding month's income, in any 24 month in which the prisoner's account exceeds $10, and forwards them to the Court until 25 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 26 Ill 27 2 3:17-cv-01914-BEN-NLS 28 1 In support of his IFP Motion, Plaintiff has submitted the certified copy of his trust 2 account statement required by 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. 3 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiffs trust account statements 4 which show that he has had no monthly deposits, and has carried an average balance of 5 zero in his account during the 6-month period preceding the filing of this action, and had 6 no available funds to his credit at the time of filing. See 28 U.S.C. § 1915(b)(4) 7 (providing that "[i]n no event shall a prisoner be prohibited from bringing a civil action 8 or appealing a civil action or criminal judgment for the reason that the prisoner has no 9 assets and no means by which to pay the initial partial filing fee."); Taylor, 281 F.3d at 10 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of 11 a prisoner's IFP case based solely on a "failure to pay ... due to the lack of funds 12 available to him when payment is ordered."). 13 Therefore, the Court GRANTS Plaintiffs Motion to Proceed IFP (ECF No. 2), and 14 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(l). However, the entire $350 15 balance of the filing fees due for this case must be collected by the California Department 16 of Corrections and Rehabilitation ("CDCR") and forwarded to the Clerk of the Court 17 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(l). 18 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) Standard of Review 19 A. 20 Notwithstanding Plaintiffs IFP status or the payment of any partial filing fees, the 21 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP 22 and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] 23 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 24 terms or conditions of parole, probation, pretrial release, or diversionary program," "as 25 soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2), 1915A(b). Under 26 these statutes, the Court must sua sponte dismiss complaints, or any portions thereof, 27 3 3:17-cv-01914-BEN-NLS 28 1 which are frivolous, malicious, fail to state a claim, or which seek damages from 2 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); Lopez v. Smith, 3 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en bane)(§ 1915(e)(2)); Rhodes v. Robinson, 4 621F.3d1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 5 All complaints must contain "a short and plain statement of the claim showing that 6 the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 7 not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by 8 mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 9 (citing Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Determining whether a 10 complaint states a plausible claim for relief [is] ... a context-specific task that requires 11 the reviewing court to draw on its judicial experience and common sense." Id. The "mere 12 possibility of misconduct" falls short of meeting this plausibility standard. Id.; see also 13 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 14 "When there are well-pleaded factual allegations, a court should assume their 15 veracity, and then determine whether they plausibly give rise to an entitlement to relief." 16 Iqbal, 556 U.S. at679; seealsoResnickv. Hayes, 213 F.3d443, 447 (9th Cir. 2000) 17 ("[W]hen determining whether a complaint states a claim, a court must accept as true all 18 allegations of material fact and must construe those facts in the light most favorable to 19 the plaintiff."); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 20 § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). 21 However, while the court "ha[s] an obligation where the petitioner is prose, 22 particularly in civil rights cases, to construe the pleadings liberally and to afford the 23 petitioner the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 24 2010) (citing Bretz v. Kelman, 773 F .2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 25 "supply essential elements of claims that were not initially pied." Ivey v. Bd. ofRegents 26 of the Univ. ofAlaska, 673 F.2d 266, 268 (9th Cir. 1982). 27 4 3:17-cv-01914-BEN-NLS 28 42 u.s.c. § 1983 1 B. 2 "Section 1983 creates a private right of action against individuals who, acting 3 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 5 substantive rights, but merely provides a method for vindicating federal rights elsewhere 6 conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 7 and citations omitted). "To establish§ 1983 liability, a plaintiff must show both (1) 8 deprivation of a right secured by the Constitution and laws of the United States, and (2) 9 that the deprivation was committed by a person acting under color of state law." Tsao v. 10 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 11 C. Grievance Procedures 12 Plaintiff has failed to allege a viable claim against any of the individually named 13 Defendants. Plaintiffs FAC is not entirely clear but he appears to allege that Defendants 14 have violated his constitutional rights due to the manner in which they responded to his 15 administrative grievances. (See FAC at 2-4.) However, a prison official's alleged 16 improper processing of an inmate's grievances or appeals, without more, cannot serve as 17 a basis for section 1983 liability. See generally Ramirez v. Galaza, 334 F.3d 850, 860 18 (9th Cir. 2003) (prisoners do not have a "separate constitutional entitlement to a specific 19 prison grievance procedure.") (citation omitted); Mann v. Adams, 855 F.2d 639, 640 (9th 20 Cir. 1988) (due process not violated simply because defendant fails properly to process 21 grievances submitted for consideration); see also Shallowhorn v. Molina, 572 Fed. Appx. 22 545, 547 (9th Cir. 2014) (district court properly dismissed section 1983 claims against 23 defendants who "were only involved in the appeals process") (citing Ramirez, 334 F.3d at 24 860). 25 Accordingly, Plaintiffs entire FAC is dismissed for failing to state a claim upon 26 which relief may be granted. Because he is proceeding pro se, however, the Court having 27 5 3:17-cv-01914-BEN-NLS 28 1 now provided him with "notice of the deficiencies in his complaint," will also grant 2 Plaintiff an opportunity to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 3 2012) (citing Ferdikv. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 4 III. Conclusion and Order 5 Good cause appearing, the Court: 6 1. 7 8 GRANTS Plaintiffs Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 9 Plaintiffs prison trust account the $350 filing fee owed in this case by collecting monthly 10 payments from the account in an amount equal to twenty percent (20%) of the preceding 11 month's income and forwarding them to the Clerk of the Court each time the amount in 12 hisaccountexceeds$10inaccordancewith28U.S.C. § 1915(b)(2). ALL PAYMENTS 13 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 14 THIS ACTION. 15 3. DIRECTS the Clerk of Court to serve a copy of this Order on Scott Kernan, 16 Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883, 17 Sacramento, California, 94283-0001. 18 4. DISMISSES Plaintiffs FAC (ECF No. 4) for failing to state a claim upon 19 which§ 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 20 1915A(b)(l). 21 5. GRANTS Plaintiff thirty (30) days leave from the date of this Order in 22 which to file a Second Amended Complaint that cures the deficiencies of pleading 23 described above. Plaintiffs Second Amended Complaint must be complete by itself 24 without reference to his original complaint. See S.D. Cal. CivLR 15.l; Hal Roach 25 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) ("[A]n 26 amended pleading supersedes the original."); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 27 6 3:17-cv-01914-BEN-NLS 28 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."). 3 Should Plaintiff elect not to proceed by filing a Second Amended Complaint 4 within 30 days, the Court will enter a final Order of dismissal of this civil action for 5 failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and§ 1915A(b)(l), and 6 for failure to prosecute in compliance with a Court Order requiring amendment. See 7 Ferdikv. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to 8 prosecute permitted if plaintiff fails to respond to a court's order requiring amendment of 9 complaint); Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) ("If a plaintiff does not 10 take advantage of the opportunity to fix his complaint, a district court may convert the 11 dismissal of the complaint into dismissal of the entire action."). 12 13 14 6. The Clerk of Court is directed to mail Plaintiff a civil rights form complaint for his use in amending. IT IS SO ORDERED. 15 16 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 7 3:17-cv-01914-BEN-NLS 28

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