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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHNAE HOYT,

Case No.: 3:18-cv-0716-H-BLM
Plaintiff,

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ORDER:

v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION SECRETARY
SCOTT KERNAN, in his official
capacity,

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(1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS;
[Doc. No. 2]
(2) DENYING MOTION FOR
TEMPORARY RESTRAINING
ORDER AND PRELIMINARY
INJUNCTION; AND

Defendant.

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[Doc. No. 4]

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(3) DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915A

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Johnae Hoyt (“Plaintiff”), a state inmate currently housed at Salinas Valley State

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Prison (“SVSP”) 1 located in Soledad, California, and represented by counsel, has filed an

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See https://inmatelocator.cdcr.ca.gov/Results.aspx (website last visited Apr. 16, 2018)
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action entitled “Complaint for Temporary Restraining Order and Preliminary Injunction.”

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(Doc. No. 1.) Plaintiff has not prepaid the 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 U.S.C.

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§ 1915(a), along with “Motion for a Temporary Restraining Order and Preliminary

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Injunction.” (Doc. Nos. 2, 4.)

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I.

Motion to Proceed IFP

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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). 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). However, if the plaintiff is a prisoner at the time of filing, he may be granted

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leave to proceed IFP, but he nevertheless remains obligated to pay the entire fee in

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

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whether his action is ultimately dismissed, see 28 U.S.C. § 1915(b)(1) & (2); Taylor v.

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Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). A “prisoner” is defined as “any person” who

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at the time of filing is “incarcerated or detained in any facility who is accused of, convicted

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

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conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C.

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§ 1915(h).

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In order to comply with the Prison Litigation Reform Act (“PLRA”), prisoners

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seeking leave to proceed IFP must also submit a “certified copy of the[ir] trust fund account

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statement (or institutional equivalent) . . . for the 6-month period immediately preceding

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the filing of the complaint . . . .” 28 U.S.C. § 1915(a)(2). From the certified trust account

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

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

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

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§ 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter, the institution having custody of

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the prisoner collects subsequent payments, assessed at 20% of the preceding month’s
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income, in any month in which the prisoner’s account exceeds $10, and forwards them to

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

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Although Plaintiff has filed a motion to proceed IFP pursuant to 28 U.S.C. § 1915(a),

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he has not attached a certified copy of his trust account statements, or an institutional

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equivalent, for the 6-month period immediately preceding the filing of his Complaint. See

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28 U.S.C. § 1915(a)(2); CivLR 3.2(b). Section 1915(a)(2) clearly requires that prisoners

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“seeking to bring a civil action . . . without prepayment of fees . . . shall submit a certified

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copy of the trust fund account statement (or institutional equivalent) . . . for the 6-month

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

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(emphasis added).

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Without Plaintiff’s trust account statement, the Court is unable to assess the

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appropriate amount of the initial filing fee which is statutorily required to initiate the

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prosecution of this action. See 28 U.S.C. § 1915(b)(1). Accordingly, the Court denies

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Plaintiff’s motion to proceed IFP at this time.

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II.

Screening of Complaint Pursuant to § 1915A

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Although the Court denies Plaintiff leave to commence this civil action without

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prepayment of the $400 civil filing fee required by 28 U.S.C. § 1914(a), and Plaintiff’s

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case requires dismissal for that reason alone, the Court also elects to conduct a sua sponte

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review of Plaintiff’s pleading because he was “incarcerated or detained in any facility [and]

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is 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” at the

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time he filed this action. See 28 U.S.C. § 1915A(a), (c).

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Section 1915A, also enacted as part of the PLRA, requires sua sponte dismissal of

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prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state

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a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Coleman v. Tollefson,

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135 S. Ct. 1759, 1764 (2015); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).

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“The purpose of § 1915A is to ‘ensure that the targets of frivolous or malicious suits need

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not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir.
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2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.

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2012)).

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A.

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On February 14, 2017, Plaintiff was housed at the Richard J. Donovan Correctional

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Facility (“RJD”). (See Doc. No. 1 at ¶ 5.) On July 27, 2017, Plaintiff was issued a “Rule

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Violation Report” for “allegedly possessing a weapon.” (Id. ¶ 6.) During his disciplinary

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hearing, Plaintiff “requested to call six (6) available witnesses who had personal knowledge

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of his innocence.” (Id. ¶ 7.) However, this request was denied by Lieutenant Altschuler.2

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(Id.) On August 9, 2017, Plaintiff was transferred to Mule Creek State Prison (“MCSP”)

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“in preparation for a transfer to a maximum-security prison.” (Id. ¶ 8.) Plaintiff’s

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disciplinary hearing was conducted on August 24, 2017, and he was found to have

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“violated the RVR and the Institution Classification Committee ordered him to be

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transferred” to SVSP. (Id. ¶ 9.) On October 16, 2017, Plaintiff was transferred to SVSP.

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(Id. ¶ 10.) Plaintiff also alleges that he has symptoms related to post-traumatic stress

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disorder, specifically, nightmares and difficulty sleeping. (See id. ¶¶ 11-15.)

Plaintiff’s Factual Allegations

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B.

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42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws” of the United States. Wyatt

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v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must allege

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

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

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under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. City of Los

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Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

42 U.S.C. § 1983

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C.

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The only claim brought in this action is titled “Count1 - Denial of Due Process,” and

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alleges that “Plaintiff was denied his due process right to call available witnesses with

Plaintiff’s Due Process Claim

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Lt. Altschuler is not a named Defendant.
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personal knowledge of the alleged incident” underlying his RVR violation. (Doc. No. 1 at

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4-5; see id. ¶¶ 6-7.) As an initial matter, this claim must be dismissed because the

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complaint identifies no personal causation on the part of Scott Kernan, the only named

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defendant. Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999)

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(“Causation is, of course, a required element of a § 1983 claim.”). “The inquiry into

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causation must be individualized and focus on the duties and responsibilities of each

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individual defendant whose acts or omissions are alleged to have caused a constitutional

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deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).

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Without some specific “factual content” that might allow the Court to “draw the

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reasonable inference” that Defendant Kernan may be held personally liable for any alleged

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unconstitutional conduct directed at Plaintiff, the Court concludes that the complaint, as

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currently pleaded, fails to “state a claim to relief that is plausible on its face.” See Ashcroft

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v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

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D.

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Venue may be raised by a court sua sponte where the defendant has not yet filed a

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responsive pleading and the time for doing so has not run. Costlow v. Weeks, 790 F.2d

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1486, 1488 (9th Cir. 1986). 28 U.S.C. Section 1391(b) provides, in pertinent part, that a

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“civil action may be brought in–(1) a judicial district in which any defendant resides, if all

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defendants are residents of the State in which the district is located; [or] (2) a judicial

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district in which a substantial part of the events or omissions giving rise to the claim

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occurred, or a substantial part of property that is the subject of the action is situated . . . .”

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Id. “The district court of a district in which is filed a case laying venue in the wrong division

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or district shall dismiss, or if it be in the interests of justice, transfer such case to any district

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or division in which it could have been brought.” Id. § 1406(a).

Lack of Proper Venue

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While Plaintiff was initially housed at RJD, it is not clear where the disciplinary

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hearing, upon which Plaintiff bases this entire action, took place. Moreover, the only

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named defendant is alleged to reside in Sacramento, California. (See Doc. No. 1-1.) And

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as stated above, Plaintiff is currently housed at SVSP, which is located in Monterey
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County. The Court does not dismiss this action for lack of proper venue at this time, but if

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Plaintiff files an amended pleading, he must be able to clearly show that the “substantial

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part of the events or omissions giving rise to the claim occurred” in either San Diego or

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Imperial counties. 28 U.S.C. § 1391(b); id. § 84(d) (“The Southern District of California

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comprises the counties of Imperial and San Diego.”).

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III.

Motion for Temporary Restraining Order and Preliminary Injunction

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Procedurally, a federal district court may issue emergency injunctive relief only if it

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has personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit.

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See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting

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that one “becomes a party officially, and is required to take action in that capacity, only

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upon service of summons or other authority-asserting measure stating the time within

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which the party served must appear to defend.”). The court may not attempt to determine

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the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245

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U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir. 1983). Pursuant

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to Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the

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action,” their “officers, agents, servants, employees, and attorneys,” and “other persons

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who are in active concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C).

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Substantively, “[a] plaintiff seeking a preliminary injunction must establish that he

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is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence

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of preliminary relief, that the balance of equities tips in his favor, and that an injunction is

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in the public interest.” Glossip v. Gross, 135 S. Ct. 2726, 2736-37 (2015) (quoting Winter

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v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “Under Winter, plaintiffs must

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establish that irreparable harm is likely, not just possible, in order to obtain a preliminary

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injunction.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

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Here, because Plaintiff’s complaint has not survived the initial sua sponte screening

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required by 28 U.S.C. § 1915A, the United States Marshal has not yet been directed to

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effect service on his behalf, and the named defendant has no actual notice of Plaintiff’s

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complaint or motion for injunctive relief. Therefore, the Court cannot grant Plaintiff
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injunctive relief because it has no personal jurisdiction over any defendant at this time. See

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Fed. R. Civ. P. 65(a)(1), (d)(2); Murphy Bros., 526 U.S. at 350; Zepeda, 753 F.2d at 727-

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28. A district court has no authority to grant relief in the form of a temporary restraining

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order or permanent injunction where it has no jurisdiction over the parties. Ruhrgas AG v.

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Marathon Oil Co., 526 U.S. 574, 584 (1999) (“Personal jurisdiction, too, is an essential

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element of the jurisdiction of a district . . . court, without which the court is powerless to

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proceed to an adjudication.” (citation and internal quotation omitted)).

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Furthermore, in conducting its initial sua sponte screening of Plaintiff’s complaint,

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the Court has determined that the complaint fails to state a claim upon which relief can be

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granted and has dismissed it without prejudice pursuant to 28 U.S.C. § 1915A(b).

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Therefore, Plaintiff has necessarily failed to show, for purposes of justifying preliminary

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injunctive relief, any likelihood of success on the merits of his claims at this time. Id.; see

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also Asberry v. Beard, No. 3:13-cv-2573-WQH JLB, 2014 WL 3943459, at *9 (S.D. Cal.

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Aug. 12, 2014) (denying prisoner’s motion for preliminary injunction because his

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complaint was subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, and

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therefore he had not shown he was “likely to succeed on the merits” of any claim, that “the

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balance of equities tip[ped] in his favor,” or the issuance of an injunction would serve the

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public interest (citing Winter, 555 U.S. at 20)).

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Thus, because Plaintiff has failed to serve the required notice upon the adverse

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parties and has not shown a likelihood of success on the merits, the Court concludes he is

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not entitled to the extraordinary injunctive relief he seeks and denies his motion for

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temporary restraining order and preliminary injunction without prejudice. See Dymo Indus.

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v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964) (“The grant of a preliminary

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injunction is the exercise of a very far reaching power never to be indulged in except in a

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case clearly warranting it.”). The Court notes that, if Plaintiff is experiencing any ongoing

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health problems, he should notify prison medical personnel and enroll in any available

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treatment or procedures. The Court expects prison authorities to address prisoners’ health-

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related complaints in an appropriate manner.
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IV.

Conclusion

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For the reasons discussed above, IT IS ORDERED that:

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(1)

Plaintiff’s motion to proceed in forma pauperis, (Doc. No. 2), is DENIED and

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the action is DISMISSED WITHOUT PREJUDICE for failure to prepay the $400 filing

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fee required by 28 U.S.C. § 1914(a).

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(2)

Plaintiff is GRANTED thirty (30) days from the date of this Order in which

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to re-open his case by either: (1) paying the entire $400 statutory and administrative filing

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fee, or (2) filing a new Motion to Proceed IFP, which includes a certified copy of his trust

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account statement for the 6-month period preceding the filing of his Complaint pursuant to

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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

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form “Motion and Declaration in Support of Motion to Proceed IFP” in this matter. If

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Plaintiff neither pays the $400 filing fee in full nor sufficiently completes and files the

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attached motion to proceed IFP, together with a certified copy of his trust account statement

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within 45 days, this action will remained dismissed without prejudice pursuant to 28 U.S.C.

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§ 1914(a), and without further Order of the Court.

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(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

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which to file an amended complaint that cures the deficiencies of pleading described above.

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Plaintiff’s amended complaint must be complete by itself without reference to his original

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complaint. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d

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

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Should Plaintiff elect not to proceed by filing an amended complaint within 30 days,

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

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pursuant to 28 U.S.C. § 1915A(b)(1), and for failure to prosecute in compliance with a

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Court Order requiring amendment. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th

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Cir. 1992) (dismissal for failure to prosecute is 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 the

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entire action.”).

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(6)

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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

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