Evans v. Hernandez et al

Filing 7

ORDER Granting 2 Motion for Leave to Proceed in forma pauperis and Dismissing Complaint for Failing to State a Claim. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee ow ed 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  6;10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR).. Signed by Judge Gonzalo P. Curiel on 11/8/17. (All non-registered users served via U.S. Mail Service)(amended complaint form mailed to Plaintiff) (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAMAL EVANS,
CDCR #P-51115,

Case No.: 3:17-cv-02254-GPC-WVG

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ORDER:

Plaintiff,
vs.

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2]

HERNANDEZ; R. MADDEN;
RODRIGUEZ; T. BLACHSTOCK,
Defendants.

AND

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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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Jamal Evans (“Plaintiff”), a prisoner currently incarcerated at Centinela State

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Prison (“CEN”) in San Diego, California, and proceeding pro se, has filed a civil rights

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complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has not

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prepaid the civil filing fee; instead he has filed a Motion to Proceed In Forma Pauperis

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

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I.

Plaintiff’s Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the

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

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

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

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

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

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

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U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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

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

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the trust fund account statement (or institutional equivalent) for . . . the six-month period

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

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

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

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

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

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§ 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then

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

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

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

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

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

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

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

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in his account during the 6-month period preceding the filing of this action, and had no

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available funds to his credit at the time of filing. See 28 U.S.C. § 1915(b)(4) (providing

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that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing

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

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means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding

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that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s

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IFP case based solely on a “failure to pay . . . due to the lack of funds available to him

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when payment is ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), and

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assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350

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

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

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pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

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II.

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

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A.

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Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the

Standard of Review

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

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

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

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

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

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

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frivolous, malicious, fail to state a claim, or which seek damages from defendants who

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are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 F.3d

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1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d

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1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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All complaints must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether

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

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

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

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

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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

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

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

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

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However, while the court “ha[s] an obligation where the petitioner is pro se,

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

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

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

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“supply essential elements of claims that were not initially pled.” Ivey v. Board of

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Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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B.

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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

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

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(2) that the deprivation was committed by a person acting under color of state law.” Tsao

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

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C.

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

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Grievance Procedures

Defendants. While not entirely clear, Plaintiff’s complaint appears to allege that

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

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responded to his administrative grievances. (See Compl. at 3.) However, a prison

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official’s alleged improper processing of an inmate’s grievances or appeals, without

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more, cannot serve as a basis for section 1983 liability. See generally Ramirez v. Galaza,

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334 F.3d 850, 860 (9th Cir. 2003) (prisoners do not have a “separate constitutional

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entitlement to a specific prison grievance procedure”); Mann v. Adams, 855 F.2d 639,

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640 (9th Cir. 1988) (due process not violated simply because defendant fails properly to

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

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

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claims against defendants who “were only involved in the appeals process” (citing

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Ramirez, 334 F.3d at 860)).

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Here, the Court finds that Plaintiff’s allegations against Defendants are insufficient
to state a plausible due process claim. See Iqbal, 556 U.S. at 680-84 (citations omitted).

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D.

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Plaintiff also appears to claim that his constitutional rights have been violated

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because prison officials refuse to transfer him to a facility that is closer to his family.

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(See Compl. at 3.) Plaintiff does not have a constitutional right to be housed in the

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Transfer

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institution of his choice. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); McKune v.

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Lile, 536 U.S. 24, 39 (2002) (“It is well settled that the decision where to house inmates

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is at the core of prison administrators’ expertise.”)

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Because he is proceeding pro se, however, the Court having now provided him

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with “notice of the deficiencies in his complaint,” will also grant Plaintiff 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)).

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III.

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Conclusion and Order
Good cause appearing, the Court:
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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

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

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

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

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

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his account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

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MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

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THIS ACTION;

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3.

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

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

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942883, Sacramento, California, 94283-0001;

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4.

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

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

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1915A(b)(1);

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5.

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

which to file an Amended Complaint that cures the deficiencies of pleading described
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above. Plaintiff’s Amended Complaint must be complete by itself without reference to

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his original complaint. 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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Should Plaintiff elect not to proceed by filing an Amended Complaint within 30

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days, the Court will enter a final Order of dismissal of this civil action for failure to state

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a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and for failure to

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prosecute in compliance with a Court Order requiring amendment. See Ferdik, 963 F.2d

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at 1260-61 (dismissal for failure to prosecute permitted if plaintiff fails to respond to a

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court’s order requiring amendment of complaint); Lira v. Herrera, 427 F.3d 1164, 1169

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(9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his

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complaint, a district court may convert the dismissal of the complaint into dismissal of

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the entire action.”).

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6.

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

for his use in amending.
IT IS SO ORDERED.

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Dated: November 8, 2017

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