Roddy v. Office of the District Attorney et al

Filing 5

ORDER granting 4 Motion for Leave to Proceed in forma pauperis. The Secretary CDCR, 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). The Court di smisses Plaintiff's Complaint (ECF No. 1) for failing to state a claim. The Court grants Plaintiff thirty (30) days leave from the date of this Order in which to file an Amended Complaint which cures all the deficiencies of pleading noted. (Orde r electronically transmitted to Secretary of CDCR). Signed by Judge Larry Alan Burns on 11/28/2017. (Copy of order mailed to Watch Commander. Copy of order and blank 1983 form mailed to Plaintiff.) (All non-registered users served via U.S. Mail Service)(jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RICHARD PAUL RODDY, II,
Booking #16113441,

Case No.: 3:17-cv-1964-LAB-PCL
ORDER:

Plaintiff,

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vs.

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1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 4]; AND

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OFFICE OF DISTRICT ATTORNEY;
COURT OF APPEAL, FOURTH
DISTRICT; APPELLATE DEFENDERS,
INC.; JUDGE ROBERT F. O'NEIL,

2) DISMISSING CIVIL ACTION
FOR FAILURE TO STATE A CLAIM
AND SEEKING MONETARY
DAMAGES AGAINST IMMUNE
DEFEDANTS PURSUANT TO 28
U.S.C. § 1915(e)(2) AND § 1915A(b)

Defendants.

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Richard Paul Roddy, II, (“Plaintiff”), currently incarcerated at the George Bailey

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Detention Facility (“GBDF”) in San Diego, California, and proceeding pro se, has filed a

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a civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has also filed

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a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF

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No. 4).
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3:17-cv-1964-LAB-PCL

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I.

Motion to Proceed IFP

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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 of

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$400. 1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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

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

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

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

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

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

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

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2002).

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

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

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

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

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trust account statement, the Court assesses an initial payment of 20% of (a) the average

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

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

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

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custody of the prisoner then collects subsequent payments, assessed at 20% of the

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preceding month’s income, in any month in which his account exceeds $10, and forwards

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

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In addition to the $350 statutory fee, 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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3:17-cv-1964-LAB-PCL

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

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by a GBDF administrative lieutenant attesting to his trust account activity. See ECF No. 4

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at 4; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These

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statements show Plaintiff has had no monthly deposits to his account, has carried no

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balance over the six month period preceding the filing of his Complaint, and that his

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current available balance is zero. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no

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event shall a prisoner be prohibited from bringing a civil action or appealing a civil action

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or criminal judgment for the reason that the prisoner has no assets and no means by

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which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; 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 Plaintiff’s Motion to Proceed IFP (ECF No. 4),

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declines to “exact” any initial filing fee because his trust account statement shows he “has

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no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Watch Commander at

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GBDF to instead collect the entire $350 balance of the filing fees required by 28 U.S.C.

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§ 1914 and forward them to the Clerk of the Court pursuant to the installment payment

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provisions set forth in 28 U.S.C. § 1915(b)(1).

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II.

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

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A.

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

Standard of Review

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

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

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it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

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

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

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2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

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the targets of frivolous or malicious suits need not bear the expense of responding.’”
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3:17-cv-1964-LAB-PCL

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009).

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B.

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Plaintiff alleges San Diego Deputy District Attorneys Christina Eastman,

Plaintiff’s Allegations

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Jacqueline Vasquez and Christopher Moon “refuse[d] to give Plaintiff discovery.”

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(Compl. at 2.) He further alleges that Defendant, San Diego Superior Court Judge Robert

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F. O’Neil, “refused to acknowledge that Prosecutors’ office” had refused to give Plaintiff

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discovery. (Id.) Plaintiff claims that both the Appellate Defenders and the Court of

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Appeals also refused to acknowledge the alleged denial of discovery. (Id.) Plaintiff

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requests $50,000 in compensatory and punitive damages. (Id. at 5.)

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3:17-cv-1964-LAB-PCL

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C.

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

42 U.S.C. § 1983

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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 (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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D.

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First, to the extent that Plaintiff is alleging that the actions of the Defendants

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resulted in his criminal conviction, he may not pursue those claims in a civil rights action

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pursuant to 42 U.S.C. § 1983, without first showing those convictions have already been

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invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

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Criminal Proceedings

In Heck, the Supreme Court held:
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A
claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under
§ 1983.
Id. at 486-87.
“Suits challenging the validity of the prisoner’s continued incarceration lie within

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‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state

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prisoner who is making a constitutional challenge to the conditions of his prison life, but
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not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir.

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2003), quoting Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973) (holding that a writ of

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habeas corpus is “explicitly and historically designed” to provide a state prisoner with the

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“exclusive” means to “attack the validity of his confinement” in federal court).

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Because Plaintiff seeks damages based on his criminal conviction, his claims

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amount to an attack on the validity of his underlying criminal conviction, and may not

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proceed pursuant to § 1983, unless his conviction has already been invalidated. Heck, 512

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U.S. at 486-87; Ramirez, 334 F.3d at 855-56 (“Absent such a showing, ‘[e]ven a prisoner

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who has fully exhausted available state remedies has no cause of action under § 1983.’”),

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quoting Heck, 512 U.S. at 489.

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E.

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Second, to the extent Plaintiff seeks damages against Judge O’Neil and any Justice

Judicial and Prosecutorial Immunity

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with the California Court of Appeals, for either presiding over his criminal proceedings

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or denying him relief in his appeal, his claims are legally frivolous, for “[j]udges are

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absolutely immune from damage liability for acts performed in their official capacities.”

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Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). As prosecutors Eastman,

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Vasquez, and Moon are likewise entitled to absolute prosecutorial immunity. Id. at 1076

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(“Where a prosecutor acts as an advocate ‘in initiating a prosecution and in presenting the

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state’s case,’ absolute immunity applies.” (quoting Imbler v. Pachtman, 424 U.S. 409,

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431 (1976)); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 912 (9th Cir. 2012)

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(“Prosecutors performing their official prosecutorial functions are entitled to absolute

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immunity against constitutional torts.”).

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Thus, for all these reasons, the Court finds Plaintiff’s Complaint fails to state a

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claim upon which § 1983 relief may be granted and for seeking monetary relief against

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immune defendants, and that it therefore must be DISMISSED pursuant to 28 U.S.C.

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§ 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 1126-27; Wilhelm, 680 F.3d at

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1121.

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3:17-cv-1964-LAB-PCL

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IV.

Conclusion and Order

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For all the reasons explained 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. 4).

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2.

DIRECTS the Watch Commander of GBDF, or his designee, to collect from

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Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly

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

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month’s income and forwarding those payments to the Clerk of the Court each time the

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

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PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

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ASSIGNED TO THIS ACTION.

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3.

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

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Commander, George Bailey Detention Facility, 446 Alta Road, Ste. 5300, San Diego,

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California, 92158.

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4.

DISMISSES Plaintiff’s Complaint (ECF No. 1) for failing to state a claim

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upon which § 1983 relief can be granted and for seeking monetary damages against

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immune defendants pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A.

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5.

GRANTS him thirty (30) days leave from the date of this Order in which to

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file 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).

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Defendants not named and any claim not re-alleged in his Amended Complaint

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will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard

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Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading

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

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

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amended pleading may be “considered waived if not repled.”).

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3:17-cv-1964-LAB-PCL

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6.

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

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rights form for his use in amending.

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IT IS SO ORDERED.

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Dated: November 28, 2017
HON. LARRY ALAN BURNS
United States District Judge

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