Gutierrez v. Johnson et al

Filing 5

ORDER (1) Granting Motion to Proceed In Forma Pauperis (ECF No. #4 ) and (2) Dismissing Complaint for Failing to State a Claim. The Secretary CDCR, or her designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). Directs the Clerk of Court to terminate Defendant R.C. Johnson as a defendant in this matter. Grants Plaintiff 60 days leave from the date of this order in which to file an Amended Complaint. Signed by Judge Cynthia Bashant on 10/13/20. (Order electronically transmitted to Secretary of CDCR and mailed).. (All non-registered users served via U.S. Mail Service with order and blank amended complaint)(jmo)

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UNITED STATES DISTRICT COURT

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FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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JUAN GUTIERREZ,
CDCR #F-02975,

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Case No.: 20-cv-01836-BAS-WVG
Plaintiff,

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v.

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R.C. JOHNSON; R. RIPPA;
D. TAMAYO; A. CHAVEZ; JOHN
DOES; JANE DOES,

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(1) GRANTING MOTION TO
PROCEED IN FORMA
PAUPERIS (ECF No. 4);
AND
(2) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM

Defendants.

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Plaintiff Juan Gutierrez, incarcerated at California State Prison – Los Angeles

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County (“CSP-LAC”) located in Lancaster, California and proceeding pro se, filed a civil

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

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

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proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF Nos. 2, 4.). The

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Court denied Plaintiff’s initial motion to proceed IFP for failing to attach his most current

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certified trust account statement. (ECF Nos. 2, 3.) Pursuant to the Court’s order, Plaintiff

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filed a renewed Motion to Proceed IFP the same day. (ECF No. 4.)

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R.C. Johnson was initially listed as a defendant, but a review of Plaintiff’s Complaint indicates that this
was done in error. Plaintiff listed “R.C. Johnson” as a defendant in a case he previously filed and does
not appear that he intended to name “R.C. Johnson” as a defendant in this matter. (See Compl. at 1–2.)
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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. 2 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, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015),

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and regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) &

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(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.”

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

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577 U.S. at 84.

28 U.S.C.

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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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In support of his renewed Motion, Plaintiff has submitted a copy of his CDCR

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Inmate Statement Report. (ECF No. 4.) See also 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR

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3.2; Andrews, 398 F.3d at 1119. This document shows Plaintiff had only $2.15 to his credit

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at the time of filing. (ECF No. 4 at 6.) Based on this accounting, the Court grants Plaintiff’s

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Motion to Proceed IFP (ECF No. 4) and assesses no initial partial filing fee. See 28 U.S.C.

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§ 1915(b)(4) (“In no event shall a prisoner be prohibited from bringing a civil action or

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

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and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850

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

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prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available

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to him when payment is ordered”). The Court directs the Secretary of the California

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Department of Corrections and Rehabilitation (“CDCR”), or her designee, to collect the

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

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the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C.

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§ 1915(b)(1).

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II.

SCREENING

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A.

Standard of Review

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

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preliminary 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 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 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.

Discussion

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

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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. Naffe v. Frye, 789 F.3d 1030, 1035–36 (9th Cir. 2015); West v. Atkins,

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487 U.S. 42, 48 (1988). However, Plaintiff’s Complaint contains virtually no factual

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allegations whatsoever. Thus, as currently presented, Plaintiff’s Complaint fails to comply

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with Federal Rule of Civil Procedure 8 (“Rule 8”) and fails to state a claim upon which

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relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S.

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at 677–78.

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1.

Due Process and State Law Claims

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In “Claim 1,” Plaintiff alludes to due process violations in unidentified disciplinary

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proceedings and lists a number of state law causes of action including battery and breach

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of contract. (See Compl. at 5.) However, Plaintiff does not state any facts to explain the

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circumstances and conduct from which these violations of his civil rights allegedly arose.

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This type of submission falls far short of stating a plausible claim for relief. See Iqbal, 556

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U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short

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and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), and that “each allegation must

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be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1); see Iqbal, 556 U.S. at 677–78. In

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addition to the grounds for sua sponte dismissal set out in § 1915(e)(2)(B) and § 1915A(b),

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the district court may also dismiss a complaint for failure to comply with Rule 8 if it fails

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to provide the defendant fair notice of the wrongs allegedly committed. See McHenry v.

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Renne, 84 F.3d 1172, 1178–80 (9th Cir. 1996). “Rule 8 marks a notable and generous

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departure from the hyper-technical, code pleading regime of a prior era, but it does not

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unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”

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Iqbal, 556 U.S. at 678‒79.

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The court “ha[s] an obligation where the petitioner is pro se, particularly in civil

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rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of

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any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v.

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Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)); however, it may not “supply essential

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elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of

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Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Even pro se litigants must “allege with at least

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some degree of particularity overt acts which defendants engaged in” in order to state a

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claim. Jones v. Comm’ty Redev. Agency of City of Los Angeles, 733 F.2d 646, 649 (9th

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Cir. 1984). Complaints like the one Plaintiff has filed, which “tender [only] ‘naked

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assertion[s]’ devoid of ‘further factual enhancement’” do not suffice. Iqbal, 556 U.S. at

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678 (quoting Twombly, 550 U.S. at 557). Legal conclusions, such as violations of due
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process (see Compl. at 5), “can provide the framework of a complaint, [but] they must be

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supported by factual allegations,” lest a plaintiff face dismissal. Id.

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2.

Eighth Amendment

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To the extent that Plaintiff may be also attempting to state an Eighth Amendment

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claim, he fails to state a claim upon which relief may be granted. In Plaintiff’s “request for

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relief,” he alleges he came “close to dying” and he may be alleging he was assaulted by

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other inmates. (Compl. at 6.) Plaintiff claims he “had to be taken to the off-site hospital.”

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(Id.)

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“The Eighth Amendment requires that prison officials ‘must take reasonable

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measures to guarantee the safety of the inmates.’” United States v. Williams, 842 F.3d

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1143, 1153 (9th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)

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(“[P]rison officials have a duty [under the Eighth Amendment] . . . to protect prisoners

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from violence at the hands of other prisoners.”); see also Clem v. Lomeli, 566 F.3d 1177,

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1181 (9th Cir. 2009). “It is not, however, every injury suffered by one prisoner at the hands

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of another that translates into constitutional liability for prison officials responsible for the

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victim’s safety.” Farmer, 511 U.S. at 834. “In Wilson v. Seiter, [the Supreme Court]

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rejected a reading of the Eighth Amendment that would allow liability to be imposed on

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prison officials solely because of the presence of objectively inhumane prison conditions.”

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Id. at 838 (citing Wilson, 501 U.S. 294, 299–302 (1991)). Therefore, a prison official’s

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failure to protect an inmate violates the Eighth Amendment only when “(1) the deprivation

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alleged is ‘objectively, sufficiently serious’ and (2) the prison officials had a ‘sufficiently

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culpable state of mind,’ acting with deliberate indifference.” Hearns v. Terhune, 413 F.3d

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1036, 1040 (9th Cir. 2005) (quoting Farmer, 511 U.S. at 834).

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To satisfy the first objective pleading requirement, the prisoner must allege sufficient

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factual content to plausibly “‘show[ ] that he is incarcerated under conditions posing a

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substantial risk of serious harm.’” Lemire v. Calif. Dep’t of Corr. & Rehab., 726 F.3d

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1062, 1075 (9th Cir. 2013) (quoting Farmer, 511 U.S. at 834); see also Disability Rights

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Montana, Inc. v. Batista, 930 F.3d 1090, 1097 (9th Cir. 2019). To satisfy the second
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subjective pleading requirement, he must also “plead factual content” to show that each

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defendant was aware of facts from which the inference could be drawn that a substantial

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risk of harm existed, and that each also drew and disregarded that inference. Iqbal, 556 U.S

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at 678; Farmer, 511 U.S. at 837.

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As currently pleaded, however, Plaintiff’s Complaint fails to allege any specific facts

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that would show that any of the named Defendants were aware of a risk to his safety.

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Instead, Plaintiff references an “[o]fficial’s knowledge of risk” and a claim that they “did

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nothing.” (Compl. at 6.) However, these factual allegations are far from sufficient to show

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that any of the named Defendants acted with deliberate indifference to a serious risk to his

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safety. Farmer, 511 U.S. at 834. Plaintiff does not allege any facts to plausibly show that

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Defendants knew of and disregarded any known or obvious excessive risk to his safety or

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failed to take reasonable steps to abate such a risk. Farmer, 511 at 837.

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For these reasons, Plaintiff’s Eighth Amendment claims as alleged against

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Defendants are subject to sua sponte dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii)

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and 1915A(b)(1).

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III.

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. 4).
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DIRECTS the Secretary of the CDCR, or her 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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MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED

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TO THIS ACTION.

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3.

DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen

Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.
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4.

DIRECTS the Clerk of Court to terminate Defendant R.C. Johnson as a

defendant in this matter as R.C. Johnson was named a defendant in error.
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DISMISSES Plaintiff’s Complaint in its entirety for failing to comply with

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the Federal Rule of Civil Procedure 8 and for failing to state a claim upon which relief may

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be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1).

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GRANTS Plaintiff sixty (60) days leave from the date of this Order in which

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

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Amended Complaint must be complete by itself without reference to his original pleading.

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Defendants not named and any claim not re-alleged in his Amended Complaint will be

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considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner

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

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

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dismissed with leave to amend which are not re-alleged in an amended pleading may be

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“considered waived if not repled”).

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If Plaintiff fails to file an Amended Complaint within the time provided, the Court

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will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state

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a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and

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1915A(b), and his failure to prosecute in compliance with a court order requiring

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amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

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not take advantage of the opportunity to fix his complaint, a district court may convert the

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dismissal of the complaint into dismissal of the entire action.”).

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DIRECTS the Clerk of Court to mail Plaintiff a blank copy of the Court’s

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approved form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for his use in

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amending.

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IT IS SO ORDERED.

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DATED: October 13, 2020

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