Walker v. Gonzalez

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 AARON M. WALKER, Case No.: 3:20-cv-0404-CAB (AHG) CDCR #T-35851, [12] ORDER: (1) GRANTING MOTION Plaintiff, 13 TO PROCEED IN FORMA vs. PAUPERIS [ECF No. 2]; AND (2) [14] DISMISSING COMPLAINT FOR 15 FAILING TO STATE A CLAIM GONZALEZ; MONTIANO; PURSUANT TO 28 U.S.C. § 1915 (e)(2) [16] R. MADDEN; D. FOSTON, AND 28 U.S.C. § 1915A(b) 17 Defendants. [18] 19 Aaron Walker (“Plaintiff”), a state inmate currently incarcerated at Centinela State 20 Prison (“CEN”) located in Imperial, California, and proceeding pro se, has filed a civil 21 rights action pursuant to 42 U.S.C. § 1983 . (See Compl., ECF No.1.) In addition, 22 Plaintiff has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 23 § 1915(a). (ECF No. 2.) 24 I. Motion to Proceed IFP 25 All parties instituting any civil action, suit or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee. See [27] 28 U.S.C. § 1914 (a). An action may proceed despite the plaintiff’s failure to prepay the 28 entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915 (a). See 1 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a 2 prisoner and is granted leave to proceed IFP, he nevertheless remains obligated to pay the 3 entire fee in installments, regardless of whether his action is ultimately dismissed. See 28 4 U.S.C. § 1915 (b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 5 Under 28 U.S.C. § 1915 , as amended by the Prison Litigation Reform Act 6 (“PLRA”), a prisoner seeking leave to proceed IFP must also submit a “certified copy of 7 the trust fund account statement (or institutional equivalent) for . . . the six-month period 8 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915 (a)(2); Andrews v. 9 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 10 Court assesses an initial payment of 20% of (a) the average monthly deposits in the 11 account for the past six months, or (b) the average monthly balance in the account for the 12 past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 13 § 1915(b)(1); 28 U.S.C. § 1915 (b)(4). The institution having custody of the prisoner then 14 collects subsequent payments, assessed at 20% of the preceding month’s income, in any 15 month in which the prisoner’s account exceeds $10, and forwards them to the Court until 16 the entire filing fee is paid. See 28 U.S.C. § 1915 (b)(2). 17 In support of his IFP Motion, Plaintiff has submitted a certified copy of his inmate 18 trust account statement. (ECF No. 3 at 1-4.) Plaintiff’s statement shows that he had no 19 available funds to his credit at the time of filing. See 28 U.S.C. § 1915 (b)(4) (providing 20 that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing 21 a civil action or criminal judgment for the reason that the prisoner has no assets and no 22 means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding 23 that 28 U.S.C. § 1915 (b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s 24 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him 25 when payment is ordered.”). 26 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 27 assesses no initial partial filing fee per 28 U.S.C. § 1915 (b)(1). However, the entire $350 28 balance of the filing fees due for this case must be collected by the California Department 1 of Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court 2 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915 (b)(1). 3 II. Screening of Complaint pursuant to 28 U.S.C. §§ 1915 (e)(2)(B) and 1915A(b) 4 A. Standard of Review 5 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre6 answer screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A(b). Under these 7 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 8 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 9 who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 10 U.S.C. § 1915 (e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en 11 banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 12 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 13 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 14 903 , 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 15 680, 681 (7th Cir. 2012)). 16 “The standard for determining whether a plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 19 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 20 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 21 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 22 12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to 23 “contain sufficient factual matter, accepted as true, to state a claim to relief that is 24 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 25 marks omitted). 26 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 27 elements of a cause of action, supported by mere conclusory statements, do not suffice.” [28] Id. “Determining whether a complaint states a plausible claim for relief [is] ... a context1 specific task that requires the reviewing court to draw on its judicial experience and 2 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant3 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 4 see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 5 B. Plaintiff’s Allegations1 6 On May 14, 2019, Defendant Gonzalez “exercised his authority to force inmate 7 Mack” into Plaintiff’s cell. (Compl. at 3.) Plaintiff alleges that Gonzalez threatened him 8 with a “rules violation report.” (Id.) Plaintiff complied but he informed Gonzalez that he 9 was “not compatible with inmate Mack.” (Id.) Plaintiff told Gonzalez that he would 10 “have to sign a CDCR 22 form agreeing” that if there were contraband found inside of 11 Plaintiff’s cell it would be “as a result of imposing inmate Mack on Plaintiff.” (Id.) 12 Gonzalez signed the form but “failed to inspect Plaintiff’s cell, property, or inmate 13 Mack’s program before enforcing [the] move.” (Id.) On June 18, 2019, a cell near the 14 cell occupied by Plaintiff and Mack “became empty.” (Id. at 4.) Plaintiff “attempted to 15 remove himself from [Mack]” by informing Defendant Montiano of the “incompatibility” 16 between himself and Mack. (Id.) However, Plaintiff allege Montiano “stated he did not 17 want [Mack] alone in a cell and refused Plaintiff’s attempt to remove himself from 18 [Mack].” (Id.) 19 On July 2, 2019, while Plaintiff was “absent from his cell,” a search was conducted 20 of his cell. (Id.at 3.) During the search, Mack was “taken out of the cell” and “nearly 21 [three] grams of heroin were found sitting in plain view on Plaintiff’s lower bunk.” (Id.) 22 Plaintiff was placed in administrative segregation (“ad-seg”) until October 3, 2019. 23 (See id.) While Plaintiff was in ad-seg he was deprived of “showers, yard 24 recreation.” (Id.) Plaintiff alleges that the “matter is currently pending both criminal 25 prosecution and CDC rules violation report.” (Id.) [27] 1 The Court will refer to the page numbers as they are imprinted by the court’s electronic case filing [28] 1 On July 11, 2019, Defendant Madden, CEN Warden, “decided to hold the Plaintiff 2 liable for the contraband found inside of the cell” and kept Plaintiff in ad-seg. (Id. at 5.) 3 On December 26, 2019, Defendant Foston, CDCR appeals examiner, denied 4 Plaintiff’s administrative grievance and “maintained [Plaintiff was] liable” for the 5 contraband found during the cell search. (Id. at 6.) Plaintiff claims Foston “refused to 6 accept responsibility for the negligence of [CDCR] staff and administration.” (Id.) 7 Plaintiff claims he “now faces possible criminal charges that will extend his 8 already (34) year sentence.” (Id.) Plaintiff seeks injunctive relief, $1000.00 in 9 compensatory damages, and $370,000 in punitive damages. (Id.) 10 C. 42 U.S.C. § 1983 11 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 12 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 13 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983 , a plaintiff must 14 allege two essential elements: (1) that a right secured by the Constitution or laws of the 15 United States was violated, and (2) that the alleged violation was committed by a person 16 acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, [17] 789 F.3d 1030, 1035-36 (9th Cir. 2015). 18 D. Single cell claim 19 Plaintiff alleges that his constitutional rights were violated when he was housed 20 with an inmate he was “not compatible with.” (Compl. at 3.) However, in the Exhibits 21 submitted in support of his Complaint, Plaintiff filed a grievance in which he requested to 22 be given a single cell as he was “incompatible for double cell housing” with any inmate. 23 (See Ex., ECF No. 4 at 7, Inmate/Parolee Request for Interview dated May 14, 2019.) 24 This request indicates that Plaintiff is not only seeking to prevent being housed with an 25 inmate he claims to be incompatible with, he is apparently claiming there is no inmate he 26 would be compatible with and thus, requires single cell status. (See id.) 27 However, Plaintiff does not have a right to be housed in a single cell. See Rhodes 28 v. Chapman, 452 U.S. 337, 347-48 (1981) (holding that double-celling does not violate 1 Eighth Amendment when it does not involve conditions amounting to unnecessary and 2 wanton pain); Allen v. Figueroa, 56 F.3d 70, at *7 (9th Cir. 1995) (unpublished 3 disposition) (no Eighth Amendment or Due Process right to be housed with inmate of 4 one’s choice). 5 Accordingly, the Court finds that Plaintiff has failed to state either an Eighth 6 Amendment or Fourteenth Amendment claim as to denial of single cell status. 7 E. Due Process claims 8 Plaintiff also claims his due process rights were violated when he was placed in ad9 seg from July 2, 2019 to October 13, 2019. (See Compl. at 4.) The Due Process Clause 10 protects prisoners against deprivation or restraint of “a protected liberty interest” and 11 “atypical and significant hardship on the inmate in relation to the ordinary incidents of 12 prison life.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (quoting Sandin v. 13 Conner, 515 U.S. 472, 484 (1995)) (internal quotation marks omitted). Although the level 14 of the hardship must be determined in a case-by-case determination, courts look to: 15 1) whether the challenged condition ‘mirrored those conditions imposed upon inmates in administrative segregation and protective custody,’ and thus [16] comported with the prison’s discretionary authority; 2) the duration of the 17 condition, and the degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence. [18] 19 Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87 ). Only if an inmate has 20 alleged facts sufficient to show a protected liberty interest does the court next consider 21 “whether the procedures used to deprive that liberty satisfied Due Process.” Ramirez, 334 22 F.3d at 860. 23 In his Complaint, Plaintiff alleges that he was held in ad-seg for more than three 24 months and deprived of “showers, yard recreation” during that time. (Compl. at 4.) The 25 Court finds that Plaintiff has alleged facts sufficient to show that he was subjected to an 26 “atypical and significant hardship in relation to the ordinary incidents of prison life.” Id.; 27 Sandin, 515 U.S. at 584 . 28 / / / 1 However, even though Plaintiff has alleged facts sufficient to invoke a protected 2 liberty interest under Sandin, he fails to plead facts to plausibly show he was denied the 3 procedural protections the Due Process Clause requires. See Iqbal, 556 U.S. at 678 ; 4 Ramirez, 334 F.3d at 860 (citations omitted); see also Brown v. Oregon Dep’t of Corr., [5] 751 F.3d 983, 987 (9th Cir. 2014). Those procedures include: (1) written notice of the 6 charges at least 24 hours before the disciplinary hearing; (2) a written statement by the 7 fact-finder of the evidence relied on and reasons for the disciplinary action; (3) the right 8 to call witnesses and present documentary evidence if doing so will not jeopardize 9 institutional safety or correctional goals; (4) the right to appear before an impartial body; 10 and (5) assistance from fellow inmates or prison staff in complex cases. Wolff v. 11 McDonnell, 418 U.S. 539, 563-72 (1974); Serrano v. Francis, 345 F.3d 1071 , 1079-80 12 (9th Cir. 2003). Plaintiff’s Complaint is devoid of any facts regarding his disciplinary 13 hearing. 14 Accordingly, the Court finds that Plaintiff’s Complaint fails to state a procedural 15 due process claim upon which relief may be granted. 16 F. Grievance claims 17 Additionally, the Court finds Plaintiff’s Complaint fails to state a claim as to 18 Inmate Appeals Coordinator Foston because an official’s allegedly improper processing 19 of a prisoner’s grievances or appeals, without more, does not serve as a sufficient basis 20 for section 1983 liability. Ramirez, 334 F.3d at 860 (prisoners do not have a “separate 21 constitutional entitlement to a specific prison grievance procedure.”) (citation omitted); 22 Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (due process not violated simply 23 because defendant fails properly to process grievances submitted for consideration); see 24 also Todd v. California Department of Corrections and Rehabilitation, 615 Fed. Appx. 25 415, 415 (9th Cir. 2015) (district court properly dismissed claim based on improper 26 “processing and handling of […] prison grievances,” since prisoners have no 27 “constitutional entitlement to a specific prison grievance procedure”) (citing Ramirez, [28] 334 F.3d at 860 ) (quotation marks omitted); Shallowhorn v. Molina, 572 Fed. Appx. 545 , 1 547 (9th Cir. 2014) (district court properly dismissed § 1983 claims against defendants 2 who “were only involved in the appeals process”) (citing Ramirez, 334 F.3d at 860 ); 3 Daniels v. Aguilera, No. 2:16-CV-00996-JAM-CKD P, 2018 WL 558658 , at *1 (E.D. 4 Cal. Jan. 24, 2018), report and recommendation adopted sub nom. Daniels v. Aguillera, 5 No. 2:16-CV-00996-JAM-CKD P, 2018 WL 1763311 (E.D. Cal. Apr. 12, 2018) 6 (“Because there is no right to any particular grievance process, it is impossible for due 7 process to have been violated by ignoring or failing to properly process prison 8 grievances.”). Simply “‘[r]uling against a prisoner on an administrative complaint does 9 not cause or contribute to the violation.’” Ellington v. Clark, 2010 WL 3001427 , at *2 10 (E.D. Cal. Jul. 29, 2010) (quoting George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007)). 11 For these reasons, the Court finds Plaintiff has failed to state a Fourteenth 12 Amendment due process claim against Defendant Foston. 13 G. Leave to Amend 14 Thus, for all these reasons, the Court finds Plaintiff’s Complaint fails to state any 15 § 1983 claim upon which relief can be granted, and that it must be dismissed sua sponte 16 and in its entirety pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii) and § 1915A(b)(1). See 17 Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121 . Because Plaintiff is proceeding 18 pro se, however, the Court having now provided him with “notice of the deficiencies in 19 his complaint,” will also grant him an opportunity to fix them. See Akhtar v. Mesa, 698 20 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 21 1992)). 22 III. Conclusion and Orders 23 For the reasons explained, the Court: 24 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915 (a) 25 (ECF No. 2); 26 / / / 27 / / / 28 / / / 1 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 2 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 3 monthly payments from his account in an amount equal to twenty percent (20%) of the 4 preceding month’s income and forwarding those payments to the Clerk of the Court each 5 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915 (b)(2). ALL 6 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 7 ASSIGNED TO THIS ACTION; 8 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph 9 Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 10 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 11 relief may be granted pursuant to 28 U.S.C. § 1915 (e)(2)(B) and § 1915A(b) and 12 GRANTS him forty-five (45) days leave from the date of this Order in which to file an 13 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 14 Amended Complaint must be complete by itself without reference to his original 15 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 16 will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 17 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 18 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 19 (noting that claims dismissed with leave to amend which are not re-alleged in an 20 amended pleading may be “considered waived if not repled.”). 21 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 22 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to 23 state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915 (e)(2)(B) 24 and 1915A(b), and his failure to prosecute in compliance with a court order requiring 25 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 26 not take advantage of the opportunity to fix his complaint, a district court may convert the 27 dismissal of the complaint into dismissal of the entire action.”). 28 / / / 1 5. The Clerk of Court is directed to mail a court approved form civil rights 2 ||complaint to Plaintiff. 3 || IT ISSO ORDERED. 4 ||Dated: April 30, 2020 € Z [5] Hon. Cathy Ann Bencivengo 6 United States District Judge