Kane v. R.J. Donovan State Prison

Filing 5

ORDER Granting 4 Motion to Proceed in Forma Pauperis; Dismissing Civil Action for Failing to State a Claim and as Frivolous Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Signed by Judge Michael M. Anello on 1/12/2018.(All non-registered users served via U.S. Mail Service)(Copy to Facility Commander, San Diego Sheriff's Department North County Regional Facility)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:17-cv-02190-MMA-BGS

JEFFREY ELIAS KANE,
CDCR #AX-3761,
Booking #17161895,

ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS;

Plaintiff,
vs.

[Doc. No. 4]

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DISMISSING CIVIL ACTION FOR
FAILING TO STATE A CLAIM AND
AS FRIVOLOUS PURSUANT TO 28
U.S.C. § 1915(e)(2) AND
§ 1915A(b)

R.J. DONOVAN STATE PRISON,

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Defendant.

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JEFFREY ELIAS KANE (“Plaintiff”), a former state prisoner, now detained at the

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San Diego Sheriff’s Department’s North County Regional Facility in Vista, California

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(“VDF”), and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C.

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§ 1983 (Doc. No. 1).

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Plaintiff’s Complaint names R.J. Donovan State Prison as the sole Defendant, and

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it contains no factual allegations or constitutional basis for relief. Instead, Plaintiff simply

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refers to another civil action he previously filed: Kane v. RJ Donovan State Prison, et al.,

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S.D. Cal. Civil Case No. 3:16-cv-00010-BEN-JLB. See Compl., Doc. No. 1 at 1-6.
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3:17-cv-02190-MMA-BGS

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Plaintiff has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a);

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instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28

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U.S.C. § 1915(a) (Doc. No. 4).

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I.

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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 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

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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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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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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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Bruce, 136 S. Ct. at 629.

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In support of his Motion to Proceed IFP, Plaintiff has submitted a copy of his

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prison certificate completed by the Facility Commander at VDF attesting to his account

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activity. See Doc. No. 4 at 4; see also 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2;

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Andrews, 398 F.3d at 1119. This statement shows Plaintiff has carried a $.01 average

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monthly balance, had an average monthly deposit of only $5 to his account over the 6-

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month period immediately preceding the filing of his Complaint, and an available balance

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of only $.06 on the books at the time of filing. See Doc. No. 4 at 4.

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Based on this accounting, no initial partial filing fee is assessed. See 28 U.S.C.

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

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

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

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Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4)

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acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a

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“failure to pay ... due to 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 (Doc. No. 4),

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declines to exact an initial filing fee because his trust account statement indicates he has

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

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or his designee, to instead collect the entire $350 balance of the filing fees required by 28

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U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the installment

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payment 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) & 1915A

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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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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 to “contain sufficient factual matter,

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

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556 U.S. 662, 678 (2009); 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. Id.; Moss v.

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U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

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B.

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As noted above, Plaintiff’s Complaint contains no factual allegations and he cites

Discussion

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no constitutional basis for relief whatsoever. While he has invoked federal jurisdiction by

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using the Court’s form 42 U.S.C. § 1983 Complaint, and names RJ Donovan State Prison

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as the sole Defendant in its caption, his pleading merely refers to a previously filed case,
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the facts and allegations from which the Court presumes he wishes to incorporate into

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this civil action by reference. See Compl., Doc. No. 1 at 1; FED. R. CIV. P. 10(c) (“A

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statement in a pleading may be adopted by reference elsewhere in the same pleading or in

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any other pleading of motion.”).

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Except where separate cases have been “consolidated ... for pretrial purposes,” and

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thus “share the same docket sheet and file under the same case number,” see e.g., Glob.

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Oil Tools, Inc. v. Barnhill, No. CIV.A. 12-3041, 2013 WL 3070838, at *9 (E.D. La. June

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17, 2013)), or where an indigent pro se litigant requests original exhibits submitted in

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support of one civil action be incorporated by reference to another related case due to his

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lack of access to a photocopier, see Weatherspoon v. Dinsa, No. 14-CV-12756, 2015 WL

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5634448, at *7 (E.D. Mich. Sept. 25, 2015), courts typically hold that Rule 10(c) does not

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allow a party to adopt by reference pleadings from a wholly separate action, even if that

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action is between the same parties. See Amini Innovation Corp. v. McFerran Home

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Furnishings, Inc., 301 F.R.D. 487, 492 (C.D. Cal. 2014) (citing Tex. Water Supply Corp.

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v. R.F.C., 204 F.2d 190, 196-97 (5th Cir. 1953) (“Rule 10(c) ... permits references to

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pleadings and exhibits in the same case, but there is no rule permitting the adoption of a

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cross-claim in a separate action in a different court by mere reference.”); Aronson v.

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Advanced Cell Tech., Inc., 972 F. Supp. 2d 123, 136 (D. Mass. 2013) (quoting

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Constellation Energy Commodities Grp. Inc. v. Transfield ER Cape Ltd., 801 F. Supp. 2d

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211, 223 (S.D.N.Y. 2011)); Davis v. Bifani, Civil Action No. 07-cv-00122-MEH-BNB,

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2007 WL 1216518, at *1 (D. Colo. Apr. 24, 2007) (“[T]he Court does not believe that it

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is proper to incorporate by reference wholesale the allegations in a complaint in a

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completely separate action, even if that action is between the same parties.”)).

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This Court agrees and finds that FED. R. CIV. P. 10(c) does not permit the adoption

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by reference of factual allegations and legal claims Plaintiff previously raised in Kane v.

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RJ Donovan State Prison, et al., S.D. Cal. Civil Case No. 3:16-cv-00010-BEN-JLB, as a

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valid means of supplanting FED. R. CIV. P. 8(a)(3) and its requirement that Plaintiff’s

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current Complaint, by itself and without reference to any other civil action he filed in the
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past, contain a “short and plain statement of the claim showing that [he] is entitled to

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relief.” See FED. R. CIV. P. 8(a)(3). Because it does not, Plaintiff has failed to state a

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claim upon which § 1983 relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii) and

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§ 1915A(b)(1). See also Iqbal, 556 U.S. at 678; Wilhelm, 680 F.3d at 1121.

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Moreover, even if Plaintiff had included some factual allegations in his current

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pleading, section 1983 “by itself does not protect anyone against anything.” Chapman v.

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Houston Welfare Rights Org., 441 U.S. 600, 617 (1979); Sprint Telephony PCS v. County

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of San Diego, 490 F.3d 700, 717 (9th Cir. 2007). In other words, section 1983 “is not

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itself a source of substantive rights, but merely provides a method for vindicating federal

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

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citations omitted); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). “In § 1983

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cases, it is the constitutional right itself that forms the basis of the claim.” Crater v.

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Galaza, 508 F.3d 1261, 1269 (9th Cir. 2007).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,

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1035-36 (9th Cir. 2015).

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Plaintiff’s Complaint fails to do either: he pleads no “factual content that allows

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the court to draw [a] reasonable inference that the defendant is liable” for depriving him

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of any constitutional or federal statutory right, Iqbal, 556 U.S. at 676, 678, and the only

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party he has named as a Defendant—RJ Donovan State Prison—is not a “person” subject

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to suit under § 1983. See Hale v. State of Arizona, 993 F.2d 1387, 1398-99 (9th Cir.

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1993) (holding that a state department of corrections is an arm of the state, and thus, not a

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“person” within the meaning of § 1983); Rojo v. R.J. Donovan State Prison, No.

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13CV2237 LAB BGS, 2014 WL 1653102, at *2 (S.D. Cal. Apr. 23, 2014) (sua sponte

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dismissing prisoner’s § 1983 complaint against R.J. Donovan State Prison pursuant to 28

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U.S.C. § 1915(e)(2)(B)(ii), (iii) and 28 U.S.C. § 1915A(b)(1) & (2)).
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C.

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Finally, while the Court would typically grant leave to amend in light of Plaintiff’s

Leave to Amend

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pro se status, it concludes that doing so under the circumstances would be futile. See

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Lopez, 203 F.3d at 1127; Schmier v. U.S. Court of Appeals for the Ninth Circuit, 279 F.3d

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817, 824 (9th Cir. 2002) (recognizing “[f]utility of amendment” as a proper basis for

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dismissal without leave to amend).

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This is because Plaintiff’s attempt to adopt by reference his previously filed civil

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action in Kane v. RJ Donovan State Prison, et al., S.D. Cal. Civil Case No. 3:16-cv-

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00010-BEN-JLB as the basis for this subsequently-filed case shows he means to “merely

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repeat[] pending or previously litigated claims.” Cato v. United States, 70 F.3d 1103,

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1105 n.2 (9th Cir. 1995).2 An IFP complaint is considered frivolous under 28 U.S.C.

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§ 1915(e)(2)(B)(ii) [formerly § 1915(d)] if it “merely repeats pending or previously

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litigated claims.” Id. (construing former 28 U.S.C. § 1915(d)) (citations and internal

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quotations omitted); see also Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688-89

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(9th Cir. 2007) (“[I]n assessing whether the second action is duplicative of the first, [the

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court] examine[s] whether the causes of action and relief sought, as well as the parties or

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privies to the action, are the same.”), overruled on other grounds by Taylor v. Sturgell,

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553 U.S. 880, 904 (2008). And “[w]hen a case may be classified as frivolous or

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malicious, there is, by definition, no merit to the underlying action and so no reason to

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grant leave to amend.” Lopez, 203 F.3d at 1127 n.8.

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//

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//

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//

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A court “‘may take notice of proceedings in other courts, both within and without the
federal judicial system, if those proceedings have a direct relation to matters at issue.’”
Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc.,
285 F.3d 801, 803 n.2 (9th Cir. 2002)).

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IV.

Conclusion and Orders

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Accordingly, the Court:

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1)

GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (Doc. No. 4).

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2)

ORDERS the Facility Commander of VDF, or his designee, to collect from

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

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

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

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ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND

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NUMBER ASSIGNED TO THIS ACTION.

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3)

DISMISSES Plaintiff’s Complaint without leave to amend both for failing

to state a claim and as frivolous pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).
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CERTIFIES that an IFP appeal of this dismissal would not be taken in good

faith pursuant to 28 U.S.C. § 1915(a)(3); and
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DIRECTS the Clerk of Court to serve a copy of this Order on the Facility

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Commander, San Diego Sheriff’s Department North County Regional Facility, 325 S.

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Melrose Ave., Vista, California, 92083, terminate this action, and close the file.

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IT IS SO ORDERED.
DATE: January 12, 2018

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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