Rademaker v. Paramo et al

Filing 4

ORDER: (1) Granting Plaintiff's 2 Motion to Proceed In Forma Pauperis Pursuant to 28 U.S.C. § 1915(a) and (2) Dismissing Claims and Defendants for Failing to State a Claim. The Secretary CDCR, or his designee, is ordered to collect fro m 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 Cl erk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). In addition, the Court grants Plaintiff 45 days leave from the date of this Order in which to either: (1) Notify the Court of the intention to proceed with the claims against Paramo, Stratton, Segovia, and Decastro only; or (2) File an Amended Complaint which cures all the deficiencies of pleading noted. Signed by Judge Barry Ted Moskowitz on 2/20/2018. (All non-registered users served via U.S. Mail Service)(mxn).

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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-02406-BTM-JLB
DAVID RADEMAKER
P-01361,

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ORDER:
Plaintiff,

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

v.
D. PARAMO; G. STRATTON; J.
JUAREZ; E. GAREZ,
Defendants.

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AND

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2) DISMISSING CLAIMS AND
DEFENDANTS FOR FAILING TO
STATE A CLAIM

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David Rademaker (“Plaintiff”), currently housed at Richard J. Donovan

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Correctional Facility located in San Diego, California, and proceeding pro se, has filed a

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civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff

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

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(ECF No. 2).
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I.

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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 of

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$400. See 28 U.S.C. § 1914(a).1 An 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, if a prisoner, like Plaintiff, is

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granted leave to proceed IFP, he remains obligated to pay the entire fee in “increments,”

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see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his

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action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2).

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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 submit a “certified copy of the

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trust fund account statement (or institutional equivalent) for the prisoner for the six-

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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

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having 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 the prisoner’s account exceeds $10,

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and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C.

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§ 1915(b)(2).

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In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, 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) (eff. May 1, 2013). However, the additional $50 administrative fee
is waived if the plaintiff is granted leave to proceed IFP. Id.
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In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust

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account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. Andrews,

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398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement, but it

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shows that he has a current available balance of 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

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

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assets and no means by which to pay the initial partial filing fee.”); Taylor v. Delatoore,

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281 F.3d 844, 850 (9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-

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

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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 (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 mandated will be collected by the California Department of

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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.

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Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A
Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the

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PLRA also obligates 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) and 1915A(b). Under

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

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

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defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v.

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Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v.

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Robinson, 621 F.3d 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

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not 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

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

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requires the reviewing court to draw on its judicial experience and common sense.” Id.

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The “mere possibility of misconduct” falls short of meeting this plausibility standard.

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Id.; see also Moss v. U.S. Secret Service, 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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A.

Defendants Juarez, Garez, Olson, Sosa, and Self

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As an initial matter, the Court finds that Plaintiff has failed to state a § 1983 claim

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against Juarez, Garez, Olson, Sosa, and Self. The only allegations pertaining to these

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Defendants are Plaintiff’s allegations that they are “evading their legal duties” by failing

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to respond to Plaintiff’s grievances in a manner he finds satisfactory. (Compl. at 5.)
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However, a prison official’s allegedly improper processing of an inmate’s

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grievances or appeals, without more, cannot serve as a basis for section 1983 liability.

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See generally Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (prisoners do not

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have a “separate constitutional entitlement to a specific prison grievance procedure.”)

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(citation omitted); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (due process not

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violated simply because defendant fails properly to process grievances submitted for

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consideration); Shallowhorn v. Molina, 572 Fed. Appx. 545, 547 (9th Cir. 2014) (district

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court properly dismissed section 1983 claims against defendants who “were only

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involved in the appeals process”) (citing Ramirez, 334 F.3d at 860).

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Here, Plaintiff’s conclusory allegations that Defendants Juarez, Garez, Olson,

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Sosa, and Self “conspired to reject and cancel Plaintiff’s inmate appeals” are simply

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insufficient to state a plausible claim upon which § 1983 relief may be granted. See Iqbal,

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556 U.S. at 680-84 (citations omitted); Valdivia v. Tampkins, No. EDCV 16-1975

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JFW(JC), 2016 WL 7378887, at *6 (C.D. Cal. Dec. 19, 2016) (sua sponte dismissing

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claims predicated upon the alleged improper processing of inmate grievances); 28 U.S.C.

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§§ 1915(e)(2), 1915A(b); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

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B.

Remaining claims

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As currently pleaded, the Court finds the remaining allegations against the

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remaining Defendants in Plaintiff’s Complaint are sufficient to survive the sua sponte

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screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).

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C.

Leave to Amend

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Because the Court has determined that some of Plaintiff’s claims survive the sua

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sponte screening process, the Court will give Plaintiff the opportunity to either: (1)

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notify the Court of the intent to proceed with his claims against Defendants Paramo,

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Stratton, Segovia and Decastro only; or (2) file an amended pleading correcting all the

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deficiencies of pleading identified by the Court in this Order. Plaintiff must choose one

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of these options within forty-five (45) days from the date this Order is filed. If Plaintiff
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chooses to proceed as to his claims against Paramo, Stratton, Segovia and Decastro only,

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the Court will issue an Order directing the U.S. Marshal to effect service of his

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Complaint and dismiss the remaining claims and defendants.

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III.

Conclusion and Order

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Good cause appearing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No.

2) is GRANTED.
2.

The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s

prison trust account the $350 filing fee owed in this case by collecting monthly payments

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

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income and forward payments to the Clerk of the Court each time the amount in the

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

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SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED

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TO THIS ACTION.

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3.

The Clerk of the Court is directed 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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IT IS FURTHER ORDERED that:

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4.

The Court DISMISSES Plaintiff’s claims against Defendants Juarez, Garez,

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Olson, Sosa, and Self for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and

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§ 1915A(b).

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5.

The Court GRANTS Plaintiff forty-five (45) days leave from the date of this

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Order in which to either: (1) Notify the Court of the intention to proceed with the claims

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against Paramo, Stratton, Segovia, and Decastro only; or (2) File an Amended Complaint

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

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be complete in itself without reference to his original pleading. Defendants not named

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and any claims not re-alleged in the Amended Complaint will be considered waived. See
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S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d

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1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey,

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693 F.3d at 928 (noting that claims dismissed with leave to amend which are not re-

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

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Dated: February 20, 2018
Hon. Barry Ted. Moskowitz
Chief Judge, United States District Court

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