Yablonsky v. California Department of Correction & Rehabilitation et al

Filing 9

ORDER: (1) Granting Motion to Proceed In Forma Pauperis [Doc. No. 2 ]; (2) Sua Sponte Dismissing Defendants Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1); and (3) Directing U.S. Marshal to Effect Service Upon Remaining Defen dants Pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). Signed by Judge Cathy Ann Bencivengo on 8/15/2018. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (anh) Certified copy of this order forwarded to Scott Kernan, Secretary, CDCR on 8/16/2018(anh).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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JOHN HENRY YABLONSKY,
CDCR #AL-0373,

ORDER:

Plaintiff,

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Case No.: 3:18-cv-01122-CAB-AGS

vs.

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

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CALIFORNIA DEP'T OF
CORRECTIONS AND
REHABILITATION; DANIEL
PARAMO; J. ROBLES; POWELL;
BLAHNIK; MARTINEZ; TISCARNIA;
McGUIRE; DOES 1-10

2) SUA SPONTE DISMISSING
DEFENDANTS PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)(ii)
AND § 1915A(b)(1)
AND

Defendants.

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3) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE UPON
REMAINING DEFENDANTS
PURSUANT TO
28 U.S.C. § 1915(d) AND
Fed. R. Civ. P. 4(c)(3)

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John Henry Yablonsky (“Plaintiff”), incarcerated at Richard J. Donovan
Correctional Facility (“RJD”), in San Diego, California, is proceeding pro se in this case
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with a civil rights Complaint filed pursuant to 42 U.S.C. § 1983 (Doc. No. 4). Plaintiff

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has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a); instead, he has

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

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(Doc. No. 2).

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I.

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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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$400.1 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 granted leave to proceed

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IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v.

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Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182,

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1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28

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

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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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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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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. June 1, 2016). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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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 Motion to Proceed IFP, Plaintiff has submitted a copy of his

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CDCR Inmate Statement Report, together with a prison certificate completed by an

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accounting official at RJD attesting to his trust account activity (Doc. No. 2 at 5-6). See

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also 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These

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statements show that Plaintiff had no available balance at the time of filing (Doc. No. 2 at

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5-7.) Based on this accounting, no initial partial filing fee is assessed. See 28 U.S.C.

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§ 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a

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civil action or appealing a civil action or criminal judgment for the reason that the

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prisoner has no assets and no means by which to pay the initial partial filing fee.”);

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Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4)

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acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a

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“failure to pay ... due to the lack of funds available to him when payment is ordered.”).
Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 2),

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declines to exact any initial filing fee because his prison certificate indicates he has “no

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

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Department of Corrections and Rehabilitation (“CDCR”), or his designee, to instead

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collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and

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forward them to the Clerk of the Court pursuant to the installment payment provisions set

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forth in 28 U.S.C. § 1915(b)(1). See id.

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II.

Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A

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A.

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Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

Standard of Review

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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).

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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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B.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

42 U.S.C. § 1983

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

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violated, and (2) that the alleged violation was committed by a person acting under the
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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,

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1035-36 (9th Cir. 2015).

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C.

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First, the Court notes Plaintiff includes the California Department of Corrections

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and Rehabilitation (“CDCR”) and the RJD Warden, Daniel Paramo as Defendants. See

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Doc. No. 4 at 1-2. However, the CDCR is not a “person” subject to suit under § 1983. See

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Hale v. State of Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (holding that a state

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department of corrections is an arm of the state, and thus, not a “person” within the

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meaning of § 1983); see also Anderson v. California, No. 3:16-CV-01172-LAB-JLB,

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2016 WL 4127785, at *2 (S.D. Cal. Aug. 3, 2016) (sua sponte dismissing both CDCR

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and RJD pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A because neither are “persons”

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subject to § 1983 liability).

Defendants CDCR and Paramo

In addition, while RJD’s Warden Daniel Paramo may be subject to suit under

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§ 1983, Plaintiff fails to include “further factual enhancement” to describes when, how,

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or to what extent, Defendant Paramo personally caused him any injury. Iqbal, 556 U.S. at

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678 (citing Twombly, 550 U.S. at 557). Instead, Plaintiff simply identifies Paramo as

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RJD’s Warden, and alleges he is “responsible for the training and insurance that the

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training is being implemented.” See Doc. No. 4 at 24. However, there is no respondeat

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superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38

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(9th Cir. 1993). “Because vicarious liability is inapplicable to ... § 1983 suits, [Plaintiff]

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must plead that each government-official defendant, through the official’s own individual

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actions, has violated the Constitution.” Iqbal, 556 at 676; see also Jones v. Community

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Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even

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pro se plaintiff must “allege with at least some degree of particularity overt acts which

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defendants engaged in” in order to state a claim).

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Therefore, because Plaintiff fails to state a claim upon which § 1983 relief can be

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granted as to the CDCR and Warden Paramo, they must be dismissed pursuant to 28

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U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes,

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621 F.3d at 1004.

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D.

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As to Plaintiff’s remaining claims, however, the Court finds Plaintiff’s Complaint

Remaining Claims and Defendants

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contains First Amended allegations sufficient to survive the “low threshold” for

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proceeding past the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and

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1915A(b). See Wilhelm, 680 F.3d at 1123; Rhodes v. Robinson, 408 F.3d 559, 567-68

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(9th Cir. 2005) (“Within the prison context, a viable claim of First Amendment retaliation

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entails five basic elements: (1) An assertion that a state actor took some adverse action

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against an inmate (2) because of (3) that prisoner’s protected conduct, and that such

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action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action

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did not reasonably advance a legitimate correctional goal.”)

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Accordingly, the Court will direct U.S. Marshal service upon the remaining

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Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall

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issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P.

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4(c)(3) (“[T]he court may order that service be made by a United States marshal or

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deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis under 28

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U.S.C. § 1915.”).

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III.

Conclusion and Orders

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For the reasons discussed, the Court:

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1)

GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (Doc. No. 2).

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2)

ORDERS the Secretary of the CDCR, or his designee, to collect from

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Plaintiff’s trust account the full $350 owed in monthly payments in an amount equal to

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twenty percent (20%) of the preceding month’s income to the Clerk of the Court each

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time the amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2).

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ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND
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NUMBER ASSIGNED TO THIS ACTION.

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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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4)

DISMISSES all claims as to Defendants California Department of

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Corrections and Rehabilitation (CDCR) and Warden Daniel Paramo sua sponte pursuant

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to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) for failing to state a claim upon

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which § 1983 may be granted, and DIRECTS the Clerk of the Court to terminate CDCR

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and Paramo as parties to this action.

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5)

DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (Doc.

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No. 4) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each

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remaining Defendants.2 In addition, the Clerk will provide Plaintiff with a filed copy of

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this Order, a certified copy of his Complaint and the summons so that he may serve these

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Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s

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as completely and accurately as possible, include an address where each Defendant may

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be found and/or subject to service pursuant to S.D. CAL. CIVLR 4.1c, and return them to

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Plaintiff must, of course, identify the Defendants he references only as “Does 1-10” by
their true names and substitute those individual persons in place of each unnamed Doe by
amending his Complaint to identify each of them before the United States Marshal will be
able to execute service upon them. See Aviles v. Village of Bedford Park, 160 F.R.D. 565,
567 (1995) (Doe defendants must be identified and served within [90] days of the
commencement of the action against them); FED. R. CIV. P. 15(c)(1)(C) & 4(m). Generally,
Doe pleading is disfavored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). And
it is in most instances impossible for the United States Marshal to serve a party identified
only as a Doe. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (in order to
properly effect service under Rule 4 in an IFP case, the plaintiff is required to “furnish the
information necessary to identify the defendant.”). However, the Court will not dismiss
Plaintiff’s claims against the Doe Defendants at this time because where the identity of an
alleged party is not known prior to filing of an action, Ninth Circuit authority permits
Plaintiff the opportunity to pursue appropriate discovery to identify the unknown Does,
unless it is clear that discovery would not uncover their identity, or his Complaint should
be dismissed for other reasons. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir.
1999) (citing Gillespie, 629 F.2d at 642).
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the United States Marshal according to the instructions the Clerk provides in the letter

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accompanying his IFP package.

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ORDERS the U.S. Marshal to serve a copy of the Complaint and summons

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upon the remaining Defendants as directed by Plaintiff on the USM Form 285s provided

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to him. All costs of that service will be advanced by the United States. See 28 U.S.C.

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§ 1915(d); FED. R. CIV. P. 4(c)(3).

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7)

ORDERS Defendants once they have been served, to reply to Plaintiff’s

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Complaint within the time provided by the applicable provisions of Federal Rule of Civil

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Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be

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permitted to “waive the right to reply to any action brought by a prisoner confined in any

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jail, prison, or other correctional facility under section 1983,” once the Court has

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conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b),

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and thus, has made a preliminary determination based on the face on the pleading alone

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that Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is

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required to respond).

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8)

ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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serve upon Defendants or, if appearance has been entered by counsel, upon Defendants’

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counsel, a copy of every further pleading, motion, or other document submitted for the

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Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every

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original document he seeks to file with the Clerk of the Court, a certificate stating the

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manner in which a true and correct copy of that document has been was served on

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Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any

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document received by the Court which has not been properly filed with the Clerk or

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which fails to include a Certificate of Service upon the Defendant may be disregarded.

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IT IS SO ORDERED.
Dated: August 15, 2018

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