Sanchez v. Covello et al

Filing 8

ORDER: (1) Granting 7 Motion to Proceed in forma pauperis, and (2) Dismissing complaint for failing to state a claim pursuant to 28 USC 1915(e)(2) and 28 USC 1915A(b)(1). Plaintiff is granted 45 days leave to file an Amended Complaint. (Order electronically transmitted to Secretary of CDCR). Signed by Judge Janis L. Sammartino on 10/07/2019. (Blank civil rights complaint form mailed to Plaintiff). (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MIGUEL SANCHEZ,
CDCR #AC-8280,

Case No.: 3:19-cv-1428-JLS-BGS
ORDER: (1) GRANTING MOTION
TO PROCEED IN FORMA
PAUPERIS, AND (2) DISMISSING
COMPLAINT FOR FAILING TO
STATE A CLAIM PURSUANT TO 28
U.S.C. § 1915(e)(2) AND 28 U.S.C.
§ 1915A(b)(1)

Plaintiff,

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vs.

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PATRICK COVELLO; TORRES;
BRIONES; SANCHEZ; TREJO,

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Defendants.

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Plaintiff Miguel Sanchez, proceeding pro se, is currently incarcerated at the Richard

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J. Donovan Correctional Facility (“RJD”) located in San Diego, California and has filed a

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civil rights Complaint pursuant to 42 U.S.C. § 1983. See Complaint (“Compl.”), ECF No.

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1. Plaintiff claims that RJD prison officials are “destroying, cutting, [and] stealing [his]

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confidential mail and personal property.” Id. at 2. Plaintiff seeks a “restraining order”

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requiring Defendants to “stay away” from his cell and “pay for [his] personal property.”

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Id. at 7. In addition, Plaintiff seeks $5000 in compensatory damages, $5000 in punitive

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damages, and $10,000 in “pain and suffering.” Id.

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3:19-cv-1428-JLS-BGS

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Plaintiff did not prepay the $400 civil filing fee required by 28 U.S.C. § 1914(a) at

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the time of filing; instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a) (ECF No. 7).

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I.

Motion to Proceed In Forma Pauperis

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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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$400.1 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). A prisoner

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who is granted IFP status remains obligated to pay the entire fee in “increments” or

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“installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775

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F.3d 1182, 1185 (9th Cir. 2015), regardless of whether the action is ultimately dismissed.

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See 28 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 balance

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in the account for the past six months, whichever is greater, unless the prisoner has no

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assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody

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of the prisoner then collects subsequent payments, assessed at 20% of the preceding

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month’s income, in any month in which his account exceeds $10, and forwards those

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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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3:19-cv-1428-JLS-BGS

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

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136 S. Ct. at 629.

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

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Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report

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recording his balances and deposits over the six-month period preceding the filing of his

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Complaint. See ECF No. 3; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398

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F.3d at 1119. This Report shows Plaintiff has had no money in his trust account for the

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six-months preceding the filing of this action and that he had a zero balance at the time of

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filing. See ECF No. 3 at 1; see also 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event

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

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

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

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

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IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when

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payment is ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 7), but

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declines to “exact” any initial filing fee because his trust account statement shows he “has

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no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the CDCR to

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

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them to the Clerk of the Court pursuant to the installment payment provisions set forth in

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28 U.S.C. § 1915(b)(1).

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II.

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

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A.

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

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pre-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 it,

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which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who

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are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C.

Legal Standard

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

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Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C.

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§ 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or

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malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

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903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d

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680, 681 (7th Cir. 2012)). A complaint is “frivolous” if it “lacks an arguable basis either

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in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).

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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 F.3d

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1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

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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 relief

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[is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

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the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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B.

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Plaintiff brings his claims under 42 U.S.C. § 1983. “Section 1983 creates a private

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right of action against individuals who, acting under color of state law, violate federal

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constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.

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2001). Section 1983 “is not itself a source of substantive rights, but merely provides a

Analysis

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method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S.

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386, 393-94 (1989) (internal quotation marks and citations omitted). “To establish § 1983

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liability, a plaintiff must show both (1) deprivation of a right secured by the Constitution

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and laws of the United States, and (2) that the deprivation was committed by a person

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acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir.

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2012).

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Property Deprivation Claims

Plaintiff claims that Defendants violated his right to due process when they allegedly
destroyed his personal property. See Compl. at 3–5.

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“The Fourteenth Amendment’s Due Process Clause protects persons against

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deprivations of life, liberty, or property; and those who seek to invoke its procedural

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protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545

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U.S. 209, 221 (2005); Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Prisoners have a

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protected interest in their personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir.

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1974), but the procedural component of the Due Process Clause is not violated by a

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random, unauthorized deprivation of property if the state provides an adequate

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post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Barnett v. Centoni,

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31 F.3d 813, 816–17 (9th Cir. 1994) (per curiam) (citing Cal. Gov’t Code §§ 810–895).

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Here, Plaintiff has no due process claim based on Defendants’ unauthorized

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deprivation of his personal property—whether intentional or negligent—since a

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meaningful state post-deprivation remedy for his loss is available. See Hudson, 468 U.S.

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at 533. California’s tort claim process provides an adequate post-deprivation remedy. See

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Barnett, 31 F.3d at 816–17 (“[A] negligent or intentional deprivation of a prisoner’s

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property fails to state a claim under section 1983 if the state has an adequate post

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deprivation remedy.”); see also Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1120 (S.D. Cal.

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2007); Kemp v. Skolnik, No. 2:09-CV-02002-PMP, 2012 WL 366946, at *6 (D. Nev. Feb.

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3, 2012) (finding prisoner’s alleged loss or destruction of newspaper, magazines, and books

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failed to state a Fourteenth Amendment claim pursuant to Hudson and noting that “[i]f
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Plaintiff wishes to recoup the value of the alleged lost materials, he will have to file a claim

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in small claims court in state court”).

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2.

Access to Courts

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Next, Plaintiff claims that Defendants have refused to provide him with “indigent

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envelopes” and have “thrown” his legal mail in the trash resulting in a denial of access to

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the courts. Compl. at 4–5.

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Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518

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U.S. 343, 346 (1996). In order to state a claim of a denial of the right to access the courts,

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a prisoner must establish that he has suffered “actual injury,” a jurisdictional requirement

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derived from the standing doctrine. Id. at 349. An “actual injury” is “actual prejudice with

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respect to contemplated or existing litigation, such as the inability to meet a filing deadline

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or to present a claim.” Id. at 348 (citation and internal quotations omitted).

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The right of access does not require the State to “enable the prisoner to discover

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grievances,” or even to “litigate effectively once in court.” Id. at 354; see also Jones v.

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Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the “inability to file a

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complaint or defend against a charge”). Instead, Lewis limits the right of access to the

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courts, as follows:

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[T]he injury requirement is [limited to those tools] that the inmates need in
order to attack their sentences, directly or collaterally, and in order to
challenge the conditions of their confinement. Impairment of any other
litigating capacity is simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration.

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Lewis, 518 U.S. at 346. Plaintiff’s failure to set forth any allegations regarding an “actual

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injury” here is “fatal” to his claim. Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008)

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(“Failure to show that a ‘non-frivolous legal claim had been frustrated’ is fatal.”) (quoting

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Lewis, 518 U.S. at 353 & n.4).

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In addition to failing to allege an “actual injury,” Plaintiff has also failed to allege

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facts sufficient to describe the “non-frivolous” or “arguable” nature of an underlying claim

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he contends was lost as a result of Defendants’ actions. Christopher v. Harbury, 536 U.S.
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403, 413–14 (2002). The nature and description of the underlying claim must be set forth

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in the pleading “as if it were being independently pursued.” Id. at 417. Plaintiff’s

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Complaint contains no allegations whatsoever regarding his inability to access the courts,

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or any “actual injury” with respect to a “non-frivolous” criminal appeal, habeas action, or

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conditions of confinement claim. Id.

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3.

Respondeat Superior

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In his Complaint caption, Plaintiff names Warden Covello as a Defendant. Compl.

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at 1. But nowhere in the body of his Complaint does Plaintiff include “further factual

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enhancement” which describes how or when Warden Covello was the cause of any injury.

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See Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).

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There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9

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F.3d 1433, 1437–38 (9th Cir. 1993). “Because vicarious liability is inapplicable to . . .

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§ 1983 suits, [Plaintiff] must plead that each government-official defendant, through the

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official’s own individual actions, has violated the Constitution.” Iqbal, 556 at 676; see

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also Jones v. Cmty. Redevelopment Agency of City of L.A., 733 F.2d 646, 649 (9th Cir.

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1984) (holding pro se plaintiffs must “allege with at least some degree of particularity overt

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

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As currently pled, Plaintiff’s Complaint offers no factual detail from which the Court

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might reasonably infer a plausible claim for relief based on a violation of any constitutional

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right on the part of Warden Covello. Iqbal, 662 U.S. at 678 (noting that Federal Rule of

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Civil Procedure 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-

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me accusation,” and that “[t]o survive a motion to dismiss, a complaint must contain

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sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its

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face.’”) (quoting Twombly, 550 U.S. at 555, 570). Therefore, the Court dismisses Warden

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Covello as a party to this action based on Plaintiff’s failure to state a plausible claim against

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him. See 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1); Lopez, 203 F.3d at 1126–27;

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Rhodes, 621 F.3d at 1004.

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For all these reasons, the Court finds Plaintiff’s Complaint fails to state any

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section 1983 claim upon which relief can be granted, and that it must be dismissed sua

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sponte and in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See

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Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121.

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B.

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Because Plaintiff is proceeding pro se, the Court, having now provided him with

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“notice of the deficiencies in his complaint,” will also grant him an opportunity to fix them.

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See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963

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F.2d 1258, 1261 (9th Cir. 1992)).

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III.

Leave to Amend

Conclusion and Orders

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For the reasons discussed, the Court:

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1.

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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

(ECF No. 2).
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DIRECTS the Secretary of the CDCR, or his designee, to collect from

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Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly

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payments from his account in an amount equal to twenty percent (20%) of the preceding

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month’s income and forwarding those payments to the Clerk of the Court each time the

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

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SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

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THIS ACTION.

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3.

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DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz,

Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.
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DISMISSES this civil action for failing to state a claim pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii) and § 1915A(b)(1).
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GRANTS Plaintiff forty-five (45) days leave from the date of this Order in

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which to file an Amended Complaint which cures the deficiencies of pleading noted.

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Plaintiff’s Amended Complaint must be complete by itself without reference to his original

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pleading. Defendants not named and any claim not re-alleged in his Amended Complaint
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will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard

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

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supersedes the original.”); Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012)

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(noting that claims dismissed with leave to amend which are not re-alleged in an amended

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pleading may be “considered waived if not repled.”).

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If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter

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a final Order dismissing this civil action based both on his failure to state a claim upon

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which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and his

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failure to prosecute in compliance with a court order requiring amendment. See Lira v.

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

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the opportunity to fix his complaint, a district court may convert the dismissal of the

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complaint into dismissal of the entire action.”).

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6.

The Clerk of Court is directed to mail Plaintiff a court approved civil rights

form complaint for his use in amending.
IT IS SO ORDERED.
Dated: October 7, 2019

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