Otiniano v. Macomber

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 ALBERTO OTINIANO, Case No.: 3:25-cv-1020-RSH-LR CDCR #G-24190, [12] ORDER: Plaintiff, [13] vs. (1) GRANTING MOTION TO [14] PROCEED IN FORMA PAUPERIS; [15] JEFFERY MACOMBER, ET AL., (2) DISMISSING COMPLAINT FOR [16] Defendants. FAILURE TO STATE A CLAIM 17 PURSUANT TO 28 U.S.C. §§ 1915 (e)(2)(B) AND 1915A(b) [19] 20 I. INTRODUCTION 21 Plaintiff Alberto Otiniano (“Plaintiff” or “Otiniano), a state inmate proceeding pro 22 se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 , along with a motion to 23 proceed in forma pauperis (“IFP”). See ECF Nos. 1, 2. In his Complaint, Otiniano alleges 24 he is in custody pursuant to an “invalid sentence.” ECF No. 1 at 3. As discussed below, the 25 Court grants Plaintiff’s IFP motion and dismisses the Complaint without prejudice. 26 II. MOTION TO PROCEED IFP 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $405. See 28 U.S.C. § 1914 (a). A party may initiate a civil action without prepaying the 2 required filing fee if the Court grants leave to proceed IFP based on indigency. 28 U.S.C. 3 § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 4 To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit 5 regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 6 Cir. 2015). Prisoners must also submit a “certified copy of the [prisoner’s] trust fund 7 account statement (or institutional equivalent) for . . . the 6-month period immediately 8 preceding the filing of the complaint.” 28 U.S.C. § 1915 (a)(2). From the certified trust 9 account statement, the Court assesses an initial payment of 20% of (a) the average monthly 10 deposits in the account for the past six months, or (b) the average monthly balance in the 11 account for the past six months, whichever is greater, unless the prisoner has no assets. See [12] 28 U.S.C. §§ 1915 (b)(1) & (4). Prisoners who proceed IFP must repay the entire fee in 13 installments regardless of whether their action is ultimately dismissed. 28 U.S.C. 14 § 1915(b)(2); Bruce v. Samuels, 577 U.S. 82, 84 (2016). 15 In support of his IFP Motion, Otiniano has provided a copy of his prison certificate 16 and trust account statement. See ECF No. 2. During the six months prior to filing suit, 17 Martinez had an average monthly balance of $104.61 and average monthly deposits of 18 $45.00; and at the time he filed suit he had an available account balance of $105.56. Id. at 19 6–7. Accordingly, the Court GRANTS Plaintiff’s IFP motion and assesses an initial partial 20 filing fee of $20.92 pursuant to 28 U.S.C. § 1915 (b)(1). This initial fee need be collected, 21 however, only if sufficient funds are available in Plaintiff’s account at the time this Order 22 is executed. See 28 U.S.C. § 1915 (b)(4) (providing that “[i]n no event shall a prisoner be 23 prohibited from bringing a civil action or appealing a civil action or criminal judgment for [25] 26 1 Civil litigants must pay an administrative fee of $55 in addition to the $350 filing 27 fee. See 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does not [28] 1 the reason that the prisoner has no assets and no means by which to pay the initial partial 2 filing fee”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915 (b)(4) acts as a “safety3 valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . 4 due to the lack of funds available to him when payment is ordered”). The CDCR must 5 thereafter collect the full balance of the $350 total fee owed in this case and forward 6 payments to the Clerk of the Court as provided by 28 U.S.C. § 1915 (b)(2). 7 III. SCREENING PURSUANT TO 28 U.S.C. §§ 1915 (e)(2)(B) & 1915A(b) 8 A. Legal Standards 9 Pursuant to 28 U.S.C. §§ 1915 (e)(2)(B) and 1915A(b), the Court must screen a 10 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous, 11 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 12 Lopez v. Smith, 203 F.3d 1122 , 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, [13] 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has 14 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 15 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 16 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a 17 complaint to “contain sufficient factual matter . . . to state a claim to relief that is plausible 18 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 19 While detailed factual allegations are not required, “[t]hreadbare recitals of the elements 20 of a cause of action, supported by mere conclusory statements, do not suffice” to state a 21 claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully22 harmed me accusation[s]” fall short of meeting this plausibility standard. Id. 23 To state a claim under § 1983, a plaintiff must plausibly allege “both (1) deprivation 24 of a right secured by the Constitution and laws of the United States, and (2) that the 25 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 26 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 27 B. Plaintiff’s Allegations 28 Otiniano states that in July of 2008, he was convicted in Orange County Superior 1 Court and was sentenced to state prison and “restitution, non-punitive fines and fees” were 2 assessed. ECF No. 1 at 3. He alleges a subsequent change in California law “invalidated” 3 some of the fines and fees originally assessed as part of his sentence. Id. Otiniano states his 4 sentence is now “unlawful.” Id. 5 C. Discussion 6 In his only claim, Otiniano states he is in “unlawful custody under [an] invalid 7 sentence” and he seeks an “order remand[ing]” his case for resentencing. Id. at 3, 7. 8 “Federal law opens two main avenues to relief on complaints related to imprisonment: a 9 petition for habeas corpus, 28 U.S.C. § 2254 , and a complaint under . . . 42 U.S.C. § 1983 .” 10 Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). “Challenges to the validity 11 of any confinement or to particulars affecting its duration are the province of habeas corpus, 12 requests for relief turning on circumstances of confinement may be presented in a § 1983 13 action.” Id. (citation omitted). “The [Supreme] Court has long held that habeas is the 14 exclusive vehicle for claims brought by state prisoners that fall within the core of habeas, 15 and such claims may not be brought in a § 1983 action.” Nettles v. Grounds, 830 F.3d 922 , 16 927 (9th Cir. 2016) (en banc) (citation omitted). 17 Here, Plaintiff asks this Court to vacate his sentence. However, this relief is 18 available, if at all,2 only in a § 2254 action. As such, the relief he seeks is not available in 19 this case. Therefore, the complaint is dismissed for failure to state a claim. 20 D. Leave to Amend 21 While the Court generally grants pro se litigants leave to amend, the Court declines [23] 24 2 The Ninth Circuit has held that federal courts lack habeas jurisdiction over challenges to restitution orders. Bailey v. Hill, 599 F.3d 976, 984 (9th Cir. 2010) (“Because [25] courts do not have jurisdiction over a habeas corpus petition brought pursuant to § 2254 26 challenging only a restitution order, the district court lacked jurisdiction over Bailey’s habeas petition.”) [28] 1 ||to do so here because amendment would be futile. See Rosati v. Igbinoso, 791 F.3d 1037 , 2 || 1039 (9th Cir. 2015) (‘A district court should not dismiss a pro se complaint without leave 3 ||to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be 4 ||cured by amendment.”’’) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)); 5 || United States ex rel. Insoon Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th 6 || Cir. 2001) (“Futility of amendment can, by itself, justify the denial of... leave to amend.”). 7 IV. CONCLUSION AND ORDER 8 Accordingly, the Court: 9 1. GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 2). 10 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 11 Plaintiff's trust account the $20.92 initial filing fee assessed, if those funds are available 12 || at the time this Order is executed, and forward whatever balance remains of the full $350 13 |}owed in monthly payments in an amount equal to twenty percent (20%) of the preceding 14 || month’s income to the Clerk of the Court each time the amount in the account exceeds $10 15 || pursuant to 28 U.S.C. § 1915 (b)(2). 16 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 17 ||Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, via 18 Mail, or by forwarding an electronic copy to trusthelpdesk@cdecr.ca.gov. 19 4. DISMISSES Plaintiff's Complaint for failing to state a claim pursuant to 28 20 U.S.C. § 1915 (e)(2) and § 1915A(b) without prejudice, but without leave to amend. 21 5. CERTIFIES that an IFP appeal from this Order would not be taken in good 22 || faith pursuant to 28 U.S.C. § 1915 (a)(3); and 23 6. DIRECTS the Clerk of Court to close the file. 24 IT IS SO ORDERED. 7 Lone 25 || Dated: June 26, 2025 26 Hon. Robert S. Huie 17 United States District Judge [28] 5 oe