Pedro v. Paramo et al

Filing 5

ORDER granting 2 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). (Order elec tronically transmitted to Secretary of CDCR) The court 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. DISMISSES Plaintiff's Complaint for faili ng to state a claim upon which § 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). GRANTS Plaintiff forty-five (45) days leave to file an Amended Complaint which cures all the deficiencies of pleading described in this Order. Signed by Judge Anthony J. Battaglia on 12/7/2017. Copy of this order served on Secretary of the CDCR via U.S. mail. (All non-registered users served via U.S. Mail Service)(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PEDRO QUIJAS,
CDCR #T-67616,

Case No.: 3:17-cv-02280-AJB-WVG
ORDER:

Plaintiff,

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vs.

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1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
PURSUANT TO 28 U.S.C. § 1915(a)
[ECF No. 2]

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DANIEL A. PARAMO; T. SOTO; M.
LOPEZ; MITCHELL; I. BRAVO; R.
OLIVARRIA; B. SELF; G. STRATTON,

AND

Defendants.

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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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Pedro Quijas (“Plaintiff”), is a prisoner at the Richard J. Donovan Correctional

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Facility (“RJD”) located in San Diego, California. He has filed a civil rights Complaint

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pursuant to 42 U.S.C. § 1983 (ECF No. 1) and 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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Because Plaintiff’s Motion to Proceed IFP complies with 28 U.S.C. § 1915(a)(2),

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the Court grants him leave to proceed without full prepayment of the civil filing fees

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required by 28 U.S.C. § 1914(a), but dismisses his Complaint for failing to state a claim

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

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Discussion
A.

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Plaintiff’s IFP Motion
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, __ S. Ct. __, 136 S. Ct. 627, 629 (U.S. 2016); Williams v. Paramo,

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775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately

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

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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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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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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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Bruce, 136 S. Ct. at 629.

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In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate

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Trust Account Statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2.

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See ECF No. 4 at 1; Andrews, 398 F.3d at 1119. This report shows that Plaintiff has a

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balance of zero in his inmate trust account. Thus, it appears Plaintiff may be unable to

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pay any initial fee at this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event

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

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

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pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850

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

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

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to him when payment is ordered.”).
For this reason, the Court grants Plaintiff leave to proceed IFP, declines to “exact”

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an initial partial filing fee because his prison certificate indicates he “has no means to pay

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it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California Department of

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Corrections and Rehabilitation (“CDCR”) to garnish the entire $350 balance of the filing

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

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

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B.

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

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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) (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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C.

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Plaintiff’s Allegations
Plaintiff alleges that his cell was searched on November 10, 2015. (See Compl. at

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4.) Defendants allegedly found contraband in his cell and issued a Rules Violation

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Report (“RVR”). (See id.) Following his disciplinary hearing, Plaintiff was found guilty
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of a division “F” offense. (See id.) As a result, Plaintiff lost “good time credits and

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points.” (Id.) Plaintiff seeks an investigation by the Federal Bureau of Investigation,

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compensatory and punitive damages and the restoration of “good time credits & points.”

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(Id. at 6-7, 11.)

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D.

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Due Process
To the extent Plaintiff challenges the validity of the disciplinary proceedings which

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resulted from Defendants issuing an RVR on grounds that they violated his right to

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procedural due process, he also fails to state a claim upon which § 1983 relief can be

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granted. See 28 U.S.C. §§ 1915(e)(2), 1915A(b).

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The Due Process Clause protects prisoners against deprivation or restraint of “a

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protected liberty interest” and “atypical and significant hardship on the inmate in relation

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to the ordinary incidents of prison life.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.

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2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)) (internal quotation marks

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omitted). Although the level of the hardship must be determined in a case-by-case

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determination, courts look to:

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1) whether the challenged condition ‘mirrored those conditions imposed upon
inmates in administrative segregation and protective custody,’ and thus
comported with the prison’s discretionary authority; 2) the duration of the
condition, and the degree of restraint imposed; and 3) whether the state’s
action will invariably affect the duration of the prisoner’s sentence.

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Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87). Only if an inmate has

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alleged facts sufficient to show a protected liberty interest does the court next consider

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“whether the procedures used to deprive that liberty satisfied Due Process.” Ramirez, 334

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F.3d at 860.

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As currently pleaded, Plaintiff’s Complaint fails to allege facts which show that the

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disciplinary punishment he faced as a result of the RVR subjected him to any “atypical

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and significant hardship in relation to the ordinary incidents of prison life.” Id.; Sandin,

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515 U.S. at 584. Plaintiff does not compare the conditions of his confinement before or

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after his disciplinary conviction. Nor does he allege the duration of his term of discipline,
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or the degree of restraint it imposed. Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S.

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at 486-87).

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And while Plaintiff does claim generally that his disciplinary conviction caused

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him “mental and emotional stress,” his pleading contains no “factual content that allows

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the court to draw the reasonable inference,” Iqbal, 556 U.S. at 678, that Defendants’

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actions “presented a dramatic departure from the basic conditions of [Plaintiff’s]

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indeterminate sentence,” or caused him to suffer an “atypical” or “significant hardship.”

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Sandin, 515 U.S. at 584-85; see also Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir.

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1996), amended by 135 F.3d 1318 (9th Cir. 1998).

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Finally, to the extent Plaintiff requests damages based on allegedly invalid

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disciplinary conviction, and he seeks to “dismiss [the] RVR,” and “restore” the lost

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custody credits that were imposed as a result of his disciplinary conviction (ECF No. 1 at

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11), he faces an additional hurdle. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

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State prisoners may not challenge the fact or duration of their confinement in a

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section 1983 action; their remedy lies in habeas corpus instead. See Wilkinson v. Dotson,

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544 U.S. 74, 78 (2005). Often referred to as the “favorable termination rule” or the “Heck

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bar,” this limitation applies whenever state prisoners “seek to invalidate the duration of

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their confinement--either directly through an injunction compelling speedier release or

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indirectly through a judicial determination that necessarily implies the unlawfulness of

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the State’s custody.” Id. at 81 (emphasis in original). Accordingly, “a state prisoner’s

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§ 1983 action is barred (absent prior invalidation)--no matter the relief sought (damages

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or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to

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conviction or internal prison proceedings)--if success in that action would necessarily

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demonstrate the invalidity of confinement or its duration.” Id. at 81-82. The favorable

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termination rule applies to prison disciplinary proceedings if those proceedings resulted

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in the loss of good-time or behavior credits. Edwards v. Balisok, 520 U.S. 641, 646-48

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(1997).

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Where “success in a ... [section] 1983 damages action would implicitly question

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the validity of conviction or duration of sentence, the litigant must first achieve favorable

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termination of his available state, or federal habeas, opportunities to challenge the

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underlying conviction or sentence.” Muhammad v. Close, 540 U.S. 749, 751 (2004)

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(citing Heck, 512 U.S. 477; Edwards, 520 U.S. at 648). Because Plaintiff contends the

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punishment imposed as a result of his RVR affects the duration of his sentence (ECF No.

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1 at 11), even a well-pleaded due process claim would be barred unless Plaintiff can also

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show his disciplinary conviction has been reversed, expunged, or otherwise invalidated.

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Heck, 512 U.S. at 486-87.

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Here, Plaintiff contends he was convicted based upon claims that he was “set up”;

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therefore, his claims necessarily imply the invalidity of his disciplinary conviction. Id. at

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487. Because he has not further alleged his conviction has already been reversed,

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expunged, or otherwise invalidated, Plaintiff does not state a plausible claim for relief,

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and his Fourteenth Amendment claims must be dismissed. Id.; see also Coley v. Duffy,

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No. 1:13-CV-00912-BAM-PC, 2016 WL 1359799, at *6 (E.D. Cal. Apr. 5, 2016)

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(dismissing prisoner’s § 1983 complaint alleging loss of custody credits and of being

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falsely charged with a disciplinary violation pursuant to 28 U.S.C. § 1915(e)(2) and §

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1915A as barred by Heck).

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E.

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Eighth Amendment claims
Plaintiff claims that the false disciplinary hearing and loss of good time credits

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violated his Eighth Amendment rights because he suffered “mental and emotional

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distress.” (Compl. at 5.)

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Prison officials have a duty under the Eighth Amendment to avoid excessive risks

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to inmate safety. See, e.g., Farmer v. Brennan, 511 U.S. 825, 834 (1994). To state a claim

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under the Eighth Amendment, Plaintiff must allege Defendants were “deliberate[ly]

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indifferen[t]” to “conditions posing a substantial risk of serious harm.” Id. Deliberate

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indifference is more than mere negligence, but less than purpose or knowledge. See id. at

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836.
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A prison official acts with deliberate indifference only if he “knows of and

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disregards an excessive risk to inmate health and safety; the official must both be aware

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of facts from which the inference could be drawn that a substantial risk of serious harm

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exists, and he must also draw the inference.” Id. at 837. Plaintiff offers no facts from

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which the Court could find that any of the named Defendants acted with “deliberate

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indifference” to his health and safety. In addition, Plaintiff cannot recover monetary

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damages for a “mental or emotional injury” without a “prior showing of physical injury.”

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42 U.S.C. § 1997e(e).
Therefore, the Court dismisses Plaintiff’s Eighth Amendment cruel and unusual

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punishment claims for failing to state a claim upon which relief could be granted.

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F.

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Leave to Amend
A pro se litigant must be given leave to amend his pleading to state a claim unless

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it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d

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at 1130 (noting leave to amend should be granted when a complaint is dismissed under

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28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can correct the defect”).

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Therefore, while the Court finds Plaintiff’s Complaint fails to state a claim upon which

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relief can be granted, it will provide him a chance to fix the pleading deficiencies

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discussed in this Order. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing

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

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Conclusion and Order

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For all the reasons discussed, 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. 2).
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DIRECTS the Secretary of the CDCR, 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 Scott

Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.
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DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

§ 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
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GRANTS Plaintiff forty-five (45) days leave to file an Amended Complaint

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which cures all the deficiencies of pleading described in this Order. Plaintiff is cautioned,

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however, that should he choose to file an Amended Complaint, it must be complete by

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itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim not re-

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

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

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

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2012) (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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If Plaintiff fails to follow these instructions and/or files an Amended Complaint

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that still fails to state a claim, his case may be dismissed without further leave to amend.

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See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take

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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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IT IS SO ORDERED.

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Dated: December 7, 2017

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