Hoyt v. Kernan

Filing 6

ORDER denying Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. The action is dismissed without prejudice for failure to prepay the $400 filing fee required by 28 USC 1914(a). Plaintiff is granted thirty (30) days from the da te of this Order to re-open the case by either: 1) paying the entire $400 statutory and administrative filing fee, or 2) filing new Motion to Proceed IFP. Plaintiff's Complaint is dismissed without prejudice for failure to state a claim pu rsuant to 28 USC 1915A. Plaintiff is granted thirty (30) days leave from the date of this Order to file an amended complaint. Plaintiff's 4 Motion for TRO and Preliminary Injunction is denied without prejudice. Signed by Judge Marilyn L. Huff on 4/17/2018. (Blank Motion for IFP form t/w copy of this Order mailed to Plaintiff's Counsel) (jah)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHNAE HOYT, Case No.: 3:18-cv-0716-H-BLM Plaintiff, 12 13 14 ORDER: v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION SECRETARY SCOTT KERNAN, in his official capacity, 15 16 17 (1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS; [Doc. No. 2] (2) DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION; AND Defendant. 18 19 20 [Doc. No. 4] 21 (3) DISMISSING ACTION FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915A 22 23 24 Johnae Hoyt (“Plaintiff”), a state inmate currently housed at Salinas Valley State 25 26 Prison (“SVSP”) 1 located in Soledad, California, and represented by counsel, has filed an 27 28 1 See https://inmatelocator.cdcr.ca.gov/Results.aspx (website last visited Apr. 16, 2018) 1 3:18-cv-0716-H-BLM 1 action entitled “Complaint for Temporary Restraining Order and Preliminary Injunction.” 2 (Doc. No. 1.) Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a); 3 instead, he has filed a motion to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. 4 § 1915(a), along with “Motion for a Temporary Restraining Order and Preliminary 5 Injunction.” (Doc. Nos. 2, 4.) 6 I. Motion to Proceed IFP 7 All parties instituting any civil action, suit or proceeding in a district court of the 8 United States, except an application for writ of habeas corpus, must pay a filing fee of 9 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 10 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 11 § 1915(a). However, if the plaintiff is a prisoner at the time of filing, he may be granted 12 leave to proceed IFP, but he nevertheless remains obligated to pay the entire fee in 13 “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of 14 whether his action is ultimately dismissed, see 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 15 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). A “prisoner” is defined as “any person” who 16 at the time of filing is “incarcerated or detained in any facility who is accused of, convicted 17 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 18 conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. 19 § 1915(h). 20 In order to comply with the Prison Litigation Reform Act (“PLRA”), prisoners 21 seeking leave to proceed IFP must also submit a “certified copy of the[ir] trust fund account 22 statement (or institutional equivalent) . . . for the 6-month period immediately preceding 23 the filing of the complaint . . . .” 28 U.S.C. § 1915(a)(2). From the certified trust account 24 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 25 in the account for the past six months, or (b) the average monthly balance in the account 26 for the past six months, whichever is greater, unless the prisoner has no assets. 28 U.S.C. 27 § 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter, the institution having custody of 28 the prisoner collects subsequent payments, assessed at 20% of the preceding month’s 2 3:18-cv-0716-H-BLM 1 income, in any month in which the prisoner’s account exceeds $10, and forwards them to 2 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 3 Although Plaintiff has filed a motion to proceed IFP pursuant to 28 U.S.C. § 1915(a), 4 he has not attached a certified copy of his trust account statements, or an institutional 5 equivalent, for the 6-month period immediately preceding the filing of his Complaint. See 6 28 U.S.C. § 1915(a)(2); CivLR 3.2(b). Section 1915(a)(2) clearly requires that prisoners 7 “seeking to bring a civil action . . . without prepayment of fees . . . shall submit a certified 8 copy of the trust fund account statement (or institutional equivalent) . . . for the 6-month 9 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2) 10 (emphasis added). 11 Without Plaintiff’s trust account statement, the Court is unable to assess the 12 appropriate amount of the initial filing fee which is statutorily required to initiate the 13 prosecution of this action. See 28 U.S.C. § 1915(b)(1). Accordingly, the Court denies 14 Plaintiff’s motion to proceed IFP at this time. 15 II. Screening of Complaint Pursuant to § 1915A 16 Although the Court denies Plaintiff leave to commence this civil action without 17 prepayment of the $400 civil filing fee required by 28 U.S.C. § 1914(a), and Plaintiff’s 18 case requires dismissal for that reason alone, the Court also elects to conduct a sua sponte 19 review of Plaintiff’s pleading because he was “incarcerated or detained in any facility [and] 20 is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 21 terms or conditions of parole, probation, pretrial release, or diversionary program” at the 22 time he filed this action. See 28 U.S.C. § 1915A(a), (c). 23 Section 1915A, also enacted as part of the PLRA, requires sua sponte dismissal of 24 prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state 25 a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Coleman v. Tollefson, 26 135 S. Ct. 1759, 1764 (2015); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000). 27 “The purpose of § 1915A is to ‘ensure that the targets of frivolous or malicious suits need 28 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 3 3:18-cv-0716-H-BLM 1 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2 2012)). 3 A. 4 On February 14, 2017, Plaintiff was housed at the Richard J. Donovan Correctional 5 Facility (“RJD”). (See Doc. No. 1 at ¶ 5.) On July 27, 2017, Plaintiff was issued a “Rule 6 Violation Report” for “allegedly possessing a weapon.” (Id. ¶ 6.) During his disciplinary 7 hearing, Plaintiff “requested to call six (6) available witnesses who had personal knowledge 8 of his innocence.” (Id. ¶ 7.) However, this request was denied by Lieutenant Altschuler.2 9 (Id.) On August 9, 2017, Plaintiff was transferred to Mule Creek State Prison (“MCSP”) 10 “in preparation for a transfer to a maximum-security prison.” (Id. ¶ 8.) Plaintiff’s 11 disciplinary hearing was conducted on August 24, 2017, and he was found to have 12 “violated the RVR and the Institution Classification Committee ordered him to be 13 transferred” to SVSP. (Id. ¶ 9.) On October 16, 2017, Plaintiff was transferred to SVSP. 14 (Id. ¶ 10.) Plaintiff also alleges that he has symptoms related to post-traumatic stress 15 disorder, specifically, nightmares and difficulty sleeping. (See id. ¶¶ 11-15.) Plaintiff’s Factual Allegations 16 B. 17 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, 18 privileges, or immunities secured by the Constitution and laws” of the United States. Wyatt 19 v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must allege 20 two essential elements: (1) that a right secured by the Constitution or laws of the United 21 States was violated, and (2) that the alleged violation was committed by a person acting 22 under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. City of Los 23 Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 42 U.S.C. § 1983 24 C. 25 The only claim brought in this action is titled “Count1 - Denial of Due Process,” and 26 alleges that “Plaintiff was denied his due process right to call available witnesses with Plaintiff’s Due Process Claim 27 28 2 Lt. Altschuler is not a named Defendant. 4 3:18-cv-0716-H-BLM 1 personal knowledge of the alleged incident” underlying his RVR violation. (Doc. No. 1 at 2 4-5; see id. ¶¶ 6-7.) As an initial matter, this claim must be dismissed because the 3 complaint identifies no personal causation on the part of Scott Kernan, the only named 4 defendant. Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) 5 (“Causation is, of course, a required element of a § 1983 claim.”). “The inquiry into 6 causation must be individualized and focus on the duties and responsibilities of each 7 individual defendant whose acts or omissions are alleged to have caused a constitutional 8 deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). 9 Without some specific “factual content” that might allow the Court to “draw the 10 reasonable inference” that Defendant Kernan may be held personally liable for any alleged 11 unconstitutional conduct directed at Plaintiff, the Court concludes that the complaint, as 12 currently pleaded, fails to “state a claim to relief that is plausible on its face.” See Ashcroft 13 v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). 14 D. 15 Venue may be raised by a court sua sponte where the defendant has not yet filed a 16 responsive pleading and the time for doing so has not run. Costlow v. Weeks, 790 F.2d 17 1486, 1488 (9th Cir. 1986). 28 U.S.C. Section 1391(b) provides, in pertinent part, that a 18 “civil action may be brought in–(1) a judicial district in which any defendant resides, if all 19 defendants are residents of the State in which the district is located; [or] (2) a judicial 20 district in which a substantial part of the events or omissions giving rise to the claim 21 occurred, or a substantial part of property that is the subject of the action is situated . . . .” 22 Id. “The district court of a district in which is filed a case laying venue in the wrong division 23 or district shall dismiss, or if it be in the interests of justice, transfer such case to any district 24 or division in which it could have been brought.” Id. § 1406(a). Lack of Proper Venue 25 While Plaintiff was initially housed at RJD, it is not clear where the disciplinary 26 hearing, upon which Plaintiff bases this entire action, took place. Moreover, the only 27 named defendant is alleged to reside in Sacramento, California. (See Doc. No. 1-1.) And 28 as stated above, Plaintiff is currently housed at SVSP, which is located in Monterey 5 3:18-cv-0716-H-BLM 1 County. The Court does not dismiss this action for lack of proper venue at this time, but if 2 Plaintiff files an amended pleading, he must be able to clearly show that the “substantial 3 part of the events or omissions giving rise to the claim occurred” in either San Diego or 4 Imperial counties. 28 U.S.C. § 1391(b); id. § 84(d) (“The Southern District of California 5 comprises the counties of Imperial and San Diego.”). 6 III. Motion for Temporary Restraining Order and Preliminary Injunction 7 Procedurally, a federal district court may issue emergency injunctive relief only if it 8 has personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit. 9 See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting 10 that one “becomes a party officially, and is required to take action in that capacity, only 11 upon service of summons or other authority-asserting measure stating the time within 12 which the party served must appear to defend.”). The court may not attempt to determine 13 the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245 14 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir. 1983). Pursuant 15 to Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the 16 action,” their “officers, agents, servants, employees, and attorneys,” and “other persons 17 who are in active concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C). 18 Substantively, “[a] plaintiff seeking a preliminary injunction must establish that he 19 is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence 20 of preliminary relief, that the balance of equities tips in his favor, and that an injunction is 21 in the public interest.” Glossip v. Gross, 135 S. Ct. 2726, 2736-37 (2015) (quoting Winter 22 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “Under Winter, plaintiffs must 23 establish that irreparable harm is likely, not just possible, in order to obtain a preliminary 24 injunction.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 25 Here, because Plaintiff’s complaint has not survived the initial sua sponte screening 26 required by 28 U.S.C. § 1915A, the United States Marshal has not yet been directed to 27 effect service on his behalf, and the named defendant has no actual notice of Plaintiff’s 28 complaint or motion for injunctive relief. Therefore, the Court cannot grant Plaintiff 6 3:18-cv-0716-H-BLM 1 injunctive relief because it has no personal jurisdiction over any defendant at this time. See 2 Fed. R. Civ. P. 65(a)(1), (d)(2); Murphy Bros., 526 U.S. at 350; Zepeda, 753 F.2d at 727- 3 28. A district court has no authority to grant relief in the form of a temporary restraining 4 order or permanent injunction where it has no jurisdiction over the parties. Ruhrgas AG v. 5 Marathon Oil Co., 526 U.S. 574, 584 (1999) (“Personal jurisdiction, too, is an essential 6 element of the jurisdiction of a district . . . court, without which the court is powerless to 7 proceed to an adjudication.” (citation and internal quotation omitted)). 8 Furthermore, in conducting its initial sua sponte screening of Plaintiff’s complaint, 9 the Court has determined that the complaint fails to state a claim upon which relief can be 10 granted and has dismissed it without prejudice pursuant to 28 U.S.C. § 1915A(b). 11 Therefore, Plaintiff has necessarily failed to show, for purposes of justifying preliminary 12 injunctive relief, any likelihood of success on the merits of his claims at this time. Id.; see 13 also Asberry v. Beard, No. 3:13-cv-2573-WQH JLB, 2014 WL 3943459, at *9 (S.D. Cal. 14 Aug. 12, 2014) (denying prisoner’s motion for preliminary injunction because his 15 complaint was subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, and 16 therefore he had not shown he was “likely to succeed on the merits” of any claim, that “the 17 balance of equities tip[ped] in his favor,” or the issuance of an injunction would serve the 18 public interest (citing Winter, 555 U.S. at 20)). 19 Thus, because Plaintiff has failed to serve the required notice upon the adverse 20 parties and has not shown a likelihood of success on the merits, the Court concludes he is 21 not entitled to the extraordinary injunctive relief he seeks and denies his motion for 22 temporary restraining order and preliminary injunction without prejudice. See Dymo Indus. 23 v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964) (“The grant of a preliminary 24 injunction is the exercise of a very far reaching power never to be indulged in except in a 25 case clearly warranting it.”). The Court notes that, if Plaintiff is experiencing any ongoing 26 health problems, he should notify prison medical personnel and enroll in any available 27 treatment or procedures. The Court expects prison authorities to address prisoners’ health- 28 related complaints in an appropriate manner. 7 3:18-cv-0716-H-BLM 1 IV. Conclusion 2 For the reasons discussed above, IT IS ORDERED that: 3 (1) Plaintiff’s motion to proceed in forma pauperis, (Doc. No. 2), is DENIED and 4 the action is DISMISSED WITHOUT PREJUDICE for failure to prepay the $400 filing 5 fee required by 28 U.S.C. § 1914(a). 6 (2) Plaintiff is GRANTED thirty (30) days from the date of this Order in which 7 to re-open his case by either: (1) paying the entire $400 statutory and administrative filing 8 fee, or (2) filing a new Motion to Proceed IFP, which includes a certified copy of his trust 9 account statement for the 6-month period preceding the filing of his Complaint pursuant to 10 11 28 U.S.C. § 1915(a)(2) and CIVLR 3.2(b). (3) The Clerk of Court is DIRECTED to provide Plaintiff with a Court-approved 12 form “Motion and Declaration in Support of Motion to Proceed IFP” in this matter. If 13 Plaintiff neither pays the $400 filing fee in full nor sufficiently completes and files the 14 attached motion to proceed IFP, together with a certified copy of his trust account statement 15 within 45 days, this action will remained dismissed without prejudice pursuant to 28 U.S.C. 16 § 1914(a), and without further Order of the Court. 17 18 19 (4) Plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant to 28 U.S.C. § 1915A. (5) Plaintiff is GRANTED thirty (30) days leave from the date of this Order in 20 which to file an amended complaint that cures the deficiencies of pleading described above. 21 Plaintiff’s amended complaint must be complete by itself without reference to his original 22 complaint. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 23 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”). 24 Should Plaintiff elect not to proceed by filing an amended complaint within 30 days, 25 the Court will enter a final Order of dismissal of this civil action for failure to state a claim 26 pursuant to 28 U.S.C. § 1915A(b)(1), and for failure to prosecute in compliance with a 27 Court Order requiring amendment. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th 28 Cir. 1992) (dismissal for failure to prosecute is permitted if plaintiff fails to respond to a 8 3:18-cv-0716-H-BLM 1 court’s order requiring amendment of complaint); Lira v. Herrera, 427 F.3d 1164, 1169 2 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his 3 complaint, a district court may convert the dismissal of the complaint into dismissal of the 4 entire action.”). 5 (6) 6 7 8 9 10 Plaintiff’s motion for a temporary restraining order and preliminary injunction is DENIED WITHOUT PREJUDICE. (Doc. No. 4.) IT IS SO ORDERED. DATED: April 17, 2018 MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 3:18-cv-0716-H-BLM

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