Ruff v. Paramo

Filing 9

ORDER: 1) Granting Motion to Proceed in Forma Pauperis (ECF No. 8 ) 2) Dismissing Complaint for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) and Denying Motion for Restraining Order (ECF No. 6 ). The Secreta ry 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 cre dited 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 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. If Plaintiff fails to file an Amended Complaint within the time provided, the Court will enter a final Order dismissing this civil action. Signed by Judge William Q. Hayes on 11/21/2017. (Per Order, Secretary of CDCR served copy of this Order electronically and via U.S. Mail Service)(Per Order, Plaintiff served copy of this Order and blank 42 U.S.C. § 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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DAVID PAUL RUFF,
CDCR #E-74808,
Plaintiff,

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Case No.: 3:17-cv-2030-WQH-KSC

vs.
DANIEL PARAMO,
Defendant.

ORDER:
1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 8]
2) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND § 1915A(b)

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AND
3) DENYING MOTION FOR
RESTRAINING ORDER
[ECF No. 6]

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David Paul Ruff (“Plaintiff”), currently incarcerated at the Richard J. Donovan

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Correctional Facility (“RJD”) located in San Diego, California, and proceeding pro se, has

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filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1). In addition,
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Plaintiff has filed a Motion for Restraining Order (ECF No. 6), along with a certified copy

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of his inmate trust account statement which the Court liberally construes to be a Motion to

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Proceed In Forma Pauperis (“IFP”) (ECF No. 8).

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I.

Motion to Proceed In Forma Pauperis

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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 granted leave to proceed

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IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v.

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Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182,

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1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28

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U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 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 6-

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

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

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statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits

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

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for 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 prisoner

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then collects subsequent payments, assessed at 20% of the preceding month’s income, in

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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. June 1, 2016). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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any month in which his account exceeds $10, and forwards those payments to the Court

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until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.

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Plaintiff’s trust account statement shows Plaintiff has had no monthly deposits to his

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account, has carried no balance over the six month period preceding the filing of his

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Complaint, and that his current available balance is zero. 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 or

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

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and no means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630;

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Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve”

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preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to

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the lack of funds available to him when payment is ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 8),

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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 Secretary for the California

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Department of Corrections and Rehabilitation (“CDCR”) to instead collect the entire $350

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balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of

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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.

Sua Sponte Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A

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A.

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

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

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

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is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

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

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28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

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

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targets of frivolous or malicious suits need not bear the expense of responding.’”

Standard of Review

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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted.)

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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 F.3d

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

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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 relief

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

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

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the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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

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B.

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Plaintiff alleges that he was diagnosed with liver cancer in November 2016. (ECF

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No. 1 at 4.) Plaintiff was told that he would undergo surgery to remove the tumor in his

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liver but he was later informed that the operation was “too complicated.” (Id.) Plaintiff

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claims this is causing him “undue stress” and he is concerned that he will be assigned a

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cellmate who “wants to fight.” (Id.) Due to Plaintiff’s medical condition he has to “arise

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at all times of the night to use toilet and sink.” (Id.) Plaintiff believes that a cellmate would

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rather harm Plaintiff and receive a cell transfer than “suffer the environment of living with

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[an] inmate suffering from bodily illnesses that wake you up through the night.” (Id. at 5.)

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In addition to compensatory and punitive damages, Plaintiff is seeking an Order from this

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Court directing prison officials to place Plaintiff on permanent “single cell status.” (Id. at
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9.)

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D.

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Plaintiff names Warden Paramo as the only named Defendant in this action. (Compl.

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at 1.) However, under section 1983, Plaintiff must allege facts sufficient to show that each

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named Defendant individually participated in causing a constitutional violation. Iqbal, 556

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U.S. at 676-77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010).

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Liability may not be imposed on supervisory personnel under the theory of respondeat

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superior, Iqbal, 556 U.S. at 676-77; Simmons, 609 F.3d at 1020-21, and as an RJD

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administrator, Defendant Paramo may only be held liable if he personally “participated in

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or directed the violations, or knew of the violations and failed to act to prevent them.”

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989); accord Starr v. Baca, 652 F.3d 1202,

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1205-08 (9th Cir. 2011). Some culpable action or inaction must be attributable to the

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Defendant individually, and while the creation or enforcement of, or acquiescence in, an

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unconstitutional policy may support a claim, Plaintiff must further allege that the policy

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was the moving force behind the violation. Starr, 652 F.3d at 1205; Jeffers v. Gomez, 267

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F.3d 895, 914-15 (9th Cir. 2001).

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Individual Liability

Thus, Plaintiff’s claims against Defendant Paramo are DISMISSED for failing to
state a claim upon which relief may be granted.

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E.

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Plaintiff seeks to bring this action claiming that his Eighth Amendment rights are

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being violated by Defendants failing to address his concerns that he may suffer injury if he

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is housed with another inmate. (ECF No. 1 at 3-5.)

Eighth Amendment

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The Eighth Amendment requires that prison officials take reasonable measures to

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guarantee the safety and well-being of prisoners. Farmer v. Brennan, 511 U.S. 825, 832–

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33 (1994); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). To state an Eighth

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Amendment failure to protect claim, however, Plaintiff must allege facts sufficient to

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plausibly show that (1) he faced conditions posing a “substantial risk of serious harm” to

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his health or safety, and (2) the individual prison official he seeks to hold liable was
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“deliberately indifferent” to those risks. Farmer, 511 U.S. at 837; Thomas v. Ponder, 611

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F.3d 1144, 1150 (9th Cir. 2010). To demonstrate deliberate indifference, Plaintiff must

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allege facts sufficient to plausibly show that Defendant both knew of and disregarded a

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substantial risk of serious harm to his health and safety. Farmer, 511 U.S. at 837. Thus,

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Plaintiff must allege “the official [was] both be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exist[ed], and [that] he . . . also

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dr[e]w that inference.” Id.

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Plaintiff’s Complaint does not plausibly suggest that Defendant Paramo would know

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that Plaintiff faces a “substantial risk of serious harm.” Id. Plaintiff alleges no additional

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facts from which the Court might reasonably infer that Defendant Paramo was aware or

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became aware that Plaintiff faced any risk, let alone a substantial one from any other

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inmate. Iqbal, 556 U.S. at 678; see also Gaut v. Sunn, 810 F.2d 923. 925 (9th Cir. 1987)

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(“mere threat” of possible harm does not violate the Eighth Amendment); Berg v.

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Kincheloe, 749 F.2d 457, 459 (9th Cir. 1986) (deliberate indifference requires showing of

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“more than a mere suspicion that an attack will occur.”); Hernandez v. Schriro, No. CV

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05-2853-PHX-DGC, 2011 WL 2910710, at *6 (D. Ariz. July 20, 2011) (“While theoretical

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risk is always possible, Farmer requires more—‘conditions posing a substantial risk of

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serious harm.’”).

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For these reasons, the Court finds Plaintiff’s failure to protect claims must be
DISMISSED for failing to state a claim.

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In addition, the Court finds that because Plaintiff plainly concedes, on the face of his

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Complaint, that the administrative exhaustion of his claims is currently pending at the time

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of filing (ECF No. 1 at 8), this entire action must be dismissed. See Albino v. Baca, 747

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F.3d 1162, 1169 (9th Cir. 2014) (en banc) (noting that where “a prisoner’s failure to exhaust

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is clear from the face of the complaint,” his complaint is subject to dismissal for failure to

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state a claim), cert. denied sub nom, Scott v. Albino, 135 S. Ct. 403 (2014); Wyatt v.

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Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner’s concession to nonexhaustion

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is a valid ground for dismissal[.]”), overruled on other grounds by Albino, 747 F.3d at
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1166. The “exhaustion requirement does not allow a prisoner to file a complaint addressing

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non-exhausted claims.” Rhodes, 621 F.3d at 1004 (citing McKinney v. Carey, 311 F.3d

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1198, 1199 (9th Cir. 2002)).

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Thus, for all the reasons discussed, the Court finds Plaintiff’s Complaint must be

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dismissed in its entirety for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and

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§ 1915A(b). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

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E.

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Because Plaintiff is proceeding without counsel, and he has now been provided with

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“notice of the deficiencies in his complaint,” the Court will also grant him an opportunity

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to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v.

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

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IV.

Plaintiff’s Motion for Preliminary Injunction
Finally, Plaintiff also requests an Order “for temporary single-cell status during the

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Leave to Amend

Court proceedings.” (Pl.’s Mot, ECF No. 6, at 1.)

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Procedurally, a federal district court may issue emergency injunctive relief only if it

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has personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit.

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See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting

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that one “becomes a party officially, and is required to take action in that capacity, only

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upon service of summons or other authority-asserting measure stating the time within

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which the party served must appear to defend.”). The court may not attempt to determine

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the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245

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U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir. 1983). Pursuant to

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Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the

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action,” their “officers, agents, servants, employees, and attorneys,” and “other persons

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Plaintiff is cautioned that all claims re-alleged in his Amended Complaint must be
exhausted pursuant to 42 U.S.C. § 1997e(a) prior to its filing. See Cano v. Taylor, 739
F.3d 1214, 1220 (9th Cir. 2014).
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who are in active concert or participation.” FED. R. CIV. P. 65(d)(2)(A)-(C).

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Substantively, “‘[a] plaintiff seeking a preliminary injunction must establish that he

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is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence

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of preliminary relief, that the balance of equities tips in his favor, and that an injunction is

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in the public interest.” Glossip v. Gross, __ U.S. __, 135 S. Ct. 2726, 2736-37 (2015)

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(quoting Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 20 (2008)). “Under

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Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in order

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to obtain a preliminary injunction.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d

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1127, 1131 (9th Cir. 2011).

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First, because Plaintiff’s Complaint has not survived the initial sua sponte screening

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required by 28 U.S.C. § 1915(e)(2) and § 1915A, the United States Marshal has not yet

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been directed to effect service on his behalf, and the named Defendants have no actual

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notice of either of Plaintiff’s Complaint or his Motion for injunctive relief. Therefore, the

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Court cannot grant Plaintiff injunctive relief because it has no personal jurisdiction over

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any Defendant at this time. See FED. R. CIV. P. 65(a)(1), (d)(2); Murphy Bros., Inc., 526

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U.S. at 350; Zepeda, 753 F.2d at 727-28. A district court has no authority to grant relief in

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the form of a temporary restraining order or permanent injunction where it has no

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jurisdiction over the parties. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999)

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(“Personal jurisdiction, too, is an essential element of the jurisdiction of a district ... court,

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without which the court is powerless to proceed to an adjudication.”) (citation and internal

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quotation omitted).

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Second, in conducting its initial sua sponte screening of Plaintiff’s Complaint, the

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Court has found it fails to state a claim upon which relief can be granted, and has dismissed

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it without prejudice pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Therefore,

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Plaintiff has necessarily failed to show, for purposes of justifying preliminary injunctive

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relief, any likelihood of success on the merits of his claims at this time. Id.; see also Asberry

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v. Beard, Civil Case No. 3:13-cv-2573-WQH JLB, 2014 WL 3943459, at *9 (S.D. Cal.

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Aug. 12, 2014) (denying prisoner’s motion for preliminary injunction because his
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complaint was subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, and

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therefore he had not shown he was “likely to succeed on the merits” of any claim, that “the

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balance of equities tip[ped] in his favor,” or the issuance of an injunction would serve the

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public interest (citing Winter, 555 U.S. at 20)).

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Finally, Plaintiff has not alleged, and cannot yet demonstrate that he is or will be

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subject to immediate and irreparable harm if an injunction does not issue. To meet FED. R.

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CIV. P. 65’s “irreparable injury” requirement, Plaintiff must do more than simply allege

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imminent harm; he must demonstrate it. Caribbean Marine Servs. Co., Inc. v. Baldridge,

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844 F.2d 668, 674 (9th Cir. 1988). This requires he allege “specific facts in an affidavits

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or a verified complaint [which] clearly show” a credible threat of “immediate and

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irreparable injury, loss or damage.” FED R. CIV. P. 65(b)(A). “Speculative injury does not

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constitute irreparable injury sufficient to warrant granting a preliminary injunction.” Id. at

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674-75.

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Thus, because Plaintiff has failed to serve the required notice upon the adverse

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parties, has not shown a likelihood of success on the merits, and has offered only

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speculative allegations of harm which are neither immediate nor irreparable, the Court

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DENIES his Motion for Restraining Order and finds he is not entitled to the extraordinary

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injunctive relief he seeks. See Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th

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Cir. 1964) (“The grant of a preliminary injunction is the exercise of a very far reaching

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power never to be indulged in except in a case clearly warranting it.”).

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IV.

Conclusion and Orders

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Based on the foregoing the Court:

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GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 8);

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

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Plaintiff’s prison 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 PAYMENTS

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SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

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THIS ACTION;

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3)

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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;

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4)

DENIES Plaintiff’s Motion for Restraining Order (ECF No. 6); and

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DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

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relief may be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and GRANTS

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

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

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Complaint must be complete by itself without reference to his original pleading.

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

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considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner

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

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

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dismissed with leave to amend which are not re-alleged in an amended pleading may be

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“considered waived if not repled.”).

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If Plaintiff fails to file an Amended Complaint within the time provided, the Court

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will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state

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a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and

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1915A(b), and his failure to prosecute in compliance with a court order requiring
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amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

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not 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 court approved civil rights

complaint form for his use in amending.
IT IS SO ORDERED.
Dated: November 21, 2017

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