Kimes v. Randolph

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 KENNETH K. KIMES, Case No.: 3:21-cv-0124-CAB-AHG CDCR #V-80313, [12] ORDER: Plaintiff, [13] vs. 1) GRANTING MOTION TO [14] PROCEED IN FORMA PAUPERIS 15 [ECF No. 2]; and RANDOLPH; MS. ALLEN; MARCUS [16] POLLARD; KATHLEEN ALLISON; 2) DISMISSING COMPLAINT 17 SGT DIAZ; K. COWART; R. PURSUANT TO 28 U.S.C. § 1915 (e)(2) BARENCHI; HELEN NORRIS; A. AND § 1915A(b)(1) [18] BOSIO; P. MEJIA; C. DOMINGO; 19 ALMA MARTINEZ, 20 Defendants. [21] 22 KENNETH K. KIMES (“Plaintiff”), incarcerated at the Richard J. Donovan 23 Correctional Facility located in San Diego, California, is proceeding pro se in this case 24 with a civil rights Complaint filed pursuant to 22 U.S.C. § 1983 (ECF No. 1). 25 Plaintiff has not prepaid the $402 civil filing fee required by 28 U.S.C. § 1914 (a); 26 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 27 U.S.C. § 1915 (a) (ECF No. 2). 28 / / / 1 I. Motion to Proceed IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $402.1 See 28 U.S.C. § 1914 (a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in increments or “installments,” 9 Bruce v. Samuels, 577 U.S. 82 , 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th 10 Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 11 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly 18 balance in the account for the past six months, whichever is greater, unless the prisoner 19 has no assets. See 28 U.S.C. § 1915 (b)(1); 28 U.S.C. § 1915 (b)(4). The institution having 20 custody of the prisoner then collects subsequent payments, assessed at 20% of the 21 preceding month’s income, in any month in which his account exceeds $10, and forwards 22 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915 (b)(2). [24] 25 1 For civil cases filed before December 1, 2020, the civil litigant bringing suit must pay the $350 statutory fee in addition to a $50 administrative fee. See 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, 26 District Court Misc. Fee Schedule, § 14 (eff. June. 1, 2016). The $50 administrative fee does not apply to persons granted leave to proceed IFP, however. Id. This administrative fee increased to $52 for civil cases 27 filed on or after December 1, 2020, but that portion still does not apply to persons granted leave to proceed IFP. See 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, [28] 1 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR inmate 2 trust account statement and prison certificate. See ECF No. 3 at 1-3; 28 U.S.C. 3 § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119 . This statement shows 4 that Plaintiff has had an average monthly deposits of $200.00 and average monthly 5 balance of $200 but only had an available balance of $0.00 at the time of filing. See ECF 6 No. 3 at 2. Thus, the Court assesses Plaintiff’s initial partial filing fee to be $40.00 7 pursuant to 28 U.S.C. § 1915 (b)(1) but acknowledges he may be unable to pay that initial 8 fee at this time. See 28 U.S.C. § 1915 (b)(4) (providing that “[i]n no event shall a prisoner 9 be prohibited from bringing a civil action or appealing a civil action or criminal judgment 10 for the reason that the prisoner has no assets and no means by which to pay the initial 11 partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 12 U.S.C. § 1915 (b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case 13 based solely on a “failure to pay . . . due to the lack of funds available to him when 14 payment is ordered.”). 15 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), 16 declines to exact the initial filing fee because his trust account statements indicate he may 17 have “no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the 18 CDCR or her designee, to instead collect the entire $350 balance of the filing fees 19 required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the 20 installment payment provisions set forth in 28 U.S.C. § 1915 (b)(1). See id. 21 II. Sua Sponte Screening per 28 U.S.C. § 1915 (e)(2) and § 1915A 22 A. Standard of Review 23 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre24 answer screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A(b). Under these 25 statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of 26 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 27 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 28 (discussing 28 U.S.C. § 1915 (e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 1 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 2 the targets of frivolous or malicious suits need not bear the expense of responding.’” 3 Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 2014) (citations omitted). 4 “The standard for determining whether a plaintiff has failed to state a claim upon 5 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 6 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 7 F.3d 1108 , 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 8 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 9 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 10 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 11 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121 . 13 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 14 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 15 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 16 relief [is] ... a context-specific task that requires the reviewing court to draw on its 17 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 18 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 19 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962 , 969 20 (9th Cir. 2009). 21 B. Plaintiff’s Allegations 22 Defendant Barenchi issued an order to prison officials to “provide Plaintiff with a 23 medical diet due to Plaintiff being diagnosed with celiac disease” which is a disease that 24 causes Plaintiff to be allergic to wheat. See Compl. at 4. Defendants Norris and Bosio 25 are the “dieticians responsible for making [Plaintiff’s] food and ensuring that it is 26 delivered in its entirety.” Id. They are also required to ensure that the food is not 27 “spoiled or rotten” but they have “failed at this.” Id. Plaintiff claims that Defendants 28 have been “delivering food to Plaintiff containing ingredients that contain wheat/gluten 1 knowing Plaintiff is severely allergic to those ingredients.” Id. As a result, Plaintiff has 2 suffered from “severe medical complications.” Id. 3 After Plaintiff was given “rotten/spoiled” food, Barenchi issued a chrono directing 4 that Plaintiff “be allowed to order at his own expense food consistent with his medical 5 diet needs from an outside vendor.” (Id. at 5.) However, when Plaintiff began to “order 6 his own food at his own expense” and it was delivered to “R&R,” Defendants Diaz and 7 Cowart would not allow Plaintiff to have the food by informing him that they had not 8 received the chrono. Id. 9 Plaintiff filed an administrative grievance. (See id.) Diaz, Cowart, and Defendant 10 Pollard “issued an official response completely ignoring Plaintiff’s issues presented and 11 granted something to Plaintiff that Plaintiff was already allowed to do by way of a 12 secured right.” (Id.) “Defendants even went so far as to have Plaintiff’s physician recant 13 and deny his own previous CDCR chrono and issue a new CDCR chrono stating that 14 Plaintiff was now not allowed to order his own food at his own expense.” (Id.) Plaintiff 15 claims Barenchi knew Norris and Bosio “were serving Plaintiff rotten and spoiled food,” 16 and food that contained ingredients Plaintiff was allergic to. (Id.) 17 Plaintiff also claims Pollard and Defendant Allison, along with Norris and Bosio, 18 “have been allowing inmates infected with HIV and Hepatitis to make and handle all 19 Plaintiff’s food.” (Id. at 6.) Plaintiff further alleges that Defendants know that these 20 inmates are “avid drug users” and are “frequently caught” by CDCR officials “injecting 21 numerous forms of drugs.” (Id.) Plaintiff “raised these issues” but Defendants “refused 22 to give the inmates any type of screening.” (Id.) 23 Defendants Mejia, Domingo, and Martinez “tampered with and removed 24 documents from Plaintiff’s medical file.” (Id. at 7.) These Defendants also denied 25 Plaintiff access to his medical records. (See id.) Plaintiff contends that Mejia, Domingo, 26 and Martinez, along with Pollard, refused to “list Plaintiff as an American with a 27 disability who falls under the ADA definition of a person with celiac disease. (Id.) [28] 1 Defendant Randolph is the correctional counselor “responsible for processing 2 outgoing government claim forms with attached fee waivers forms and certified CDCR 3 trust account statements” to support a motion to proceed IFP. (Id. at 8.) On July 23, 4 2019, Randolph took Plaintiff’s documents and placed them in his office. (See id.) 5 However, Randolph locked his office that day, “leaving Plaintiff’s documents in his 6 office clearly visible through his office window” and did not “return for over five 7 weeks.” (Id.) As a result, Plaintiff claims he was “hindered” from filing a “government 8 claim notice with trust statement.” (Id.) Plaintiff filed a grievance and learned that 9 Defendant Allen “who works in the trust office also refused to file Plaintiff’s request for 10 a certified trust statement.” (Id.) While Plaintiff claims that these actions caused a 11 “major delay” in filing his government claim but he was “finally able to fie the 12 documents with the Office of Risk and Insurance Management Government Claims 13 Department.” (Id.) 14 Plaintiff claims Defendants are “refusing to allow Plaintiff his right to an attorney 15 visit and an attorney phone call.” (Id. at 9.) He further alleges that Defendants “will not 16 allow” him “access to an attorney” to represent him in this civil proceeding. (Id.) 17 Plaintiff seeks declaratory relief, injunctive relief, $3,000,000 in compensatory 18 damages, and $3,000,000 in punitive damages. (See id. at 10, 12.) 19 C. Statute of Limitations 20 The Court finds that many of Plaintiff’s claims, alleged to arise at RJD beginning 21 in 2015 and continuing into 2016, are subject to sua sponte dismissal for failing to state a 22 claim upon which relief may be granted pursuant to 28 U.S.C. §1915 (e)(2) and 23 § 1915A(b)(1) because they are time-barred. While Plaintiff’s factual allegations are 24 devoid of specific dates as to when these alleged violations occurred, he has attached 25 several exhibits that show these purported events occurred in 2015 and 2016. 26 “A claim may be dismissed [for failing to state a claim] on the ground that it is 27 barred by the applicable statute of limitations only when ‘the running of the statute is 28 apparent on the face of the complaint.’” Von Saher v. Norton Simon Museum of Art at 1 Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, [2] 465 F.3d 992, 997 (9th Cir. 2006)). “‘A complaint cannot be dismissed unless it appears 3 beyond doubt that the plaintiff can prove no set of facts that would establish the 4 timeliness of the claim.’” Id. (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204 , 1206 5 (9th Cir. 1995)); see also Cervantes v. City of San Diego, 5 F.3d 1273, 1276-77 (9th Cir. 6 1993) (where the running of the statute of limitations is apparent on the face of a 7 complaint, dismissal for failure to state a claim is proper, so long as Plaintiff is provided 8 an opportunity to amend in order to allege facts which, if proved, might support tolling); 9 see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764 , 10 788 (9th Cir. 2000) (court may raise the defense of statute of limitations sua sponte). 11 Section 1983 contains no specific statute of limitation; therefore, federal courts 12 apply the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, [13] 393 F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 14 2004); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Before 2003, California’s 15 statute of limitations was one year. Jones, 393 F.3d at 927 . Effective January 1, 2003, the 16 limitations period was extended to two. Id. (citing CAL. CIV. PROC. CODE § 335.1). The 17 law of the forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 394 (2007) 18 (citing Hardin v. Straub, 490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 927 (where 19 the federal court borrows the state statute of limitation, the federal court also borrows all 20 applicable provisions for tolling the limitations period found in state law). 21 Under California law, the statute of limitations for prisoners serving less than a life 22 sentence is tolled for an additional two years. CAL. CIV. PROC. CODE § 352.1(a); Johnson 23 v. California, 207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 U.S. 24 499 (2005). However, Plaintiff is currently serving a sentence of life without the 25 possibility of parole (“LWOP”) and therefore, is not entitled to the extra two years of [28] 1 tolling. 2 Unlike the length of the limitations period, however, “the accrual date of a § 1983 3 cause of action is a question of federal law that is not resolved by reference to state law.” 4 Wallace, 549 U.S. at 388 ; Hardin, 490 U.S. at 543-44 (federal law governs when a 5 § 1983 cause of action accrues). “Under the traditional rule of accrual ... the tort cause of 6 action accrues, and the statute of limitation begins to run, when the wrongful act or 7 omission results in damages.” Wallace, 549 U.S. at 391 . Put another way, “[u]nder 8 federal law, a claim accrues when the plaintiff knows or has reason to know of the injury 9 which is the basis of the action.” Maldonado, 370 F.3d at 955 ; TwoRivers v. Lewis, 174 10 F.3d 987 , 991 (9th Cir. 1999). 11 In this case, some of the “wrongful acts” alleged to have been taken against 12 Plaintiff at RJD occurred well over two years before he filed his Complaint on January 13 21, 2021, and thus, are outside California’s statute of limitations. Plaintiff’s factual 14 allegations in his Complaint are devoid of specific dates. However, a review of many of 15 the exhibits filed in support of his Complaint, see ECF No. 4, indicates that many of his 16 claims relating to CDCR officials purportedly preventing him from ordering food from 17 outside vendors, his claims of spoiled and rotten food, and his allegations that inmates 18 with HIV or hepatitis were permitted to serve food appear to have occurred in 2015 and 19 2016. 20 Based on these documents submitted in support of his factual allegations, the Court 21 concludes Plaintiff had “reason to know” of many of his claims as early as October of 22 2015, more than five years before he filed this case on January 21, 2021, and after the 23 limitations period applicable to his claims elapsed. See Maldonado, 370 F.3d at 955 . 24 Finally, Plaintiff’s claims could be considered timely if, in his Complaint, he 25 alleged facts sufficient to show the limitations period may be equitably tolled. See [27] 2 See CDCR Inmate Locator, https:\\www.inmatelocator.cdcr.ca.gov (website last visited February 11. [28] 1 Cervantes, 5 F.3d at 1276-77 . Generally, federal courts also apply the forum state’s law 2 regarding equitable tolling. Fink, 192 F.3d at 914 ; Bacon v. City of Los Angeles, 843 F.2d 3 372, 374 (9th Cir. 1988). Under California law, however, Plaintiff must meet three 4 conditions to equitably toll the statute of limitations: (1) he must have diligently pursued 5 his claim; (2) his situation must be the product of forces beyond his control; and (3) 6 Defendants must not be prejudiced by the application of equitable tolling. See Hull v. 7 Central Pathology Serv. Med. Clinic, 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994); 8 Addison v. State of California, 21 Cal.3d 313, 316-17 (Cal. 1978); Fink, 192 F.3d at 916 . 9 As currently pleaded, however, the Court finds Plaintiff has failed to plead any 10 facts which, if proved, would support any plausible claim for equitable tolling. See 11 Cervantes, 5 F.3d at 1277 ; Iqbal, 556 U.S. at 679. Accordingly, the Court finds that 12 because it is clear from the face of Plaintiff’s Complaint, his claims relating to his diet, 13 alleged spoiled and rotten food, and food purportedly served by inmates with HIV or 14 hepatitis are barred by the statute of limitations, those claims are subject to sua sponte 15 dismissal for failing to state a claim upon which section 1983 relief may be granted. See [16] 28 U.S.C. § 1915 (e)(2)(B)(ii); 1915A(b)(1); Lopez, 203 F.3d at 1126-27 ; Rhodes, 621 17 F.3d at 1004. 18 D. Grievances 19 Plaintiff seeks to hold Defendants Mejia, Domingo, and Martinez liable for their 20 responses to his administrative grievances. (See Compl. at 7.) However, the Court finds 21 Plaintiff’s Complaint fails to state a claim as to any of the named Defendants because an 22 official’s allegedly improper processing of a prisoner’s grievances or appeals, without 23 more, does not serve as a sufficient basis for section 1983 liability. Ramirez v. Galaza, [24] 334 F.3d 850, 860 (9th Cir. 2003) (prisoners do not have a “separate constitutional 25 entitlement to a specific prison grievance procedure.”) (citation omitted); Mann v. Adams, [26] 855 F.2d 639, 640 (9th Cir. 1988) (due process not violated simply because defendant 27 fails properly to process grievances submitted for consideration); see also Todd v. 28 California Department of Corrections and Rehabilitation, 615 Fed. Appx. 415, 415 (9th 1 Cir. 2015) (district court properly dismissed claim based on improper “processing and 2 handling of […] prison grievances,” since prisoners have no “constitutional entitlement to 3 a specific prison grievance procedure”) (citing Ramirez, 334 F.3d at 860 ) (quotation 4 marks omitted); Shallowhorn v. Molina, 572 Fed. Appx. 545, 547 (9th Cir. 2014) (district 5 court properly dismissed § 1983 claims against defendants who “were only involved in 6 the appeals process”) (citing Ramirez, 334 F.3d at 860 ). Simply “‘[r]uling against a 7 prisoner on an administrative complaint does not cause or contribute to the violation.’” 8 Ellington v. Clark, 2010 WL 3001427 , at *2 (E.D. Cal. Jul. 29, 2010) (quoting George v. 9 Smith, 507 F.3d 605, 609 (7th Cir. 2007)). 10 For these reasons, the Court finds Plaintiff’s conclusory claims that Defendants 11 failed to properly process or respond to his grievances are insufficient to state any 12 plausible due process claim upon which § 1983 relief may be granted. See Iqbal, 556 13 U.S. at 678-79 (citations omitted). 14 E. Access to Courts 15 In addition to his claim relating to his grievances, Plaintiff seeks to hold some 16 Defendants liable for not processing his requests for trust account statements which 17 purportedly “hindered” his ability to file a government tort claim. (See Compl. at 8.) 18 Plaintiff also claims that Defendants have hindered access to an attorney in this civil 19 proceeding. (See id.) 20 Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518 21 U.S. 343 , 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977), limited in part on other 22 grounds by Lewis, 518 U.S. at 354. In order to state a claim of a denial of the right to 23 access the courts, a prisoner must establish that he has suffered “actual injury,” a 24 jurisdictional requirement derived from the standing doctrine. Lewis, 518 U.S. at 349. An 25 “actual injury” is “actual prejudice with respect to contemplated or existing litigation, 26 such as the inability to meet a filing deadline or to present a claim.” Id. at 348 (citation 27 and internal quotations omitted). The right of access does not require the State to “enable 28 the prisoner to discover grievances,” or even to “litigate effectively once in court.” Id. at 1 354; see also Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury 2 as the “inability to file a complaint or defend against a charge”). Instead, Lewis holds: 3 [T]he injury requirement is not satisfied by just any type of frustrated legal claim . . .. Bounds does not guarantee inmates the wherewithal to [4] transform themselves into litigating engines capable of filing everything 5 from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack [6] their sentences, directly or collaterally, and in order to challenge the 7 conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of [8] conviction and incarceration. [9] 10 Id. at 346; see also Spence v. Beard, No. 2:16-CV-1828 KJN P, 2017 WL 896293 , at *211 3 (E.D. Cal. Mar. 6, 2017). Indeed, the failure to allege an actual injury is “fatal.” Alvarez 12 v. Hill, 518 F.3d 1152 , 1155 n.1 (9th Cir. 2008) (stating that “[f]ailure to show that a 13 ‘non-frivolous legal claim had been frustrated’ is fatal.”) (quoting Lewis, 518 U.S. at 353 14 & n.4). 15 In addition to alleging an “actual injury,” Plaintiff must also plead facts sufficient 16 to describe the “non-frivolous” or “arguable” nature of underlying claim he contends was 17 lost as result of Defendants’ actions. Christopher v. Harbury, 536 U.S. 403 , 413-14 18 (2002). The nature and description of the underlying claim must be set forth in the 19 pleading “as if it were being independently pursued.” Id. at 417 . 20 Plaintiff’s Complaint has failed to allege the actual injury required to state an 21 access to courts claim. See Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. 22 Specifically, Plaintiff has not provided the Court with the “nature and description” of the 23 claims he brought in an action, nor the “non-frivolous” or “arguable” nature of those 24 claims. Harbury, 536 U.S. at 413-14 . Thus, the Court finds that Plaintiff’s Complaint 25 fails to include sufficient “factual matter” to show how or why any of the individual 26 Defendants in this case caused him to suffer any “actual prejudice” “such as the inability 27 to meet a filing deadline or to present a claim,” with respect to any case. Lewis, 518 U.S. 28 at 348; Jones, 393 F.3d at 936 ; Iqbal, 556 U.S. at 678. Because Plaintiff has failed to 1 allege facts sufficient to show that Defendant caused him to suffer any “actual injury” 2 with respect to any non-frivolous direct criminal appeal, habeas petition, or civil rights 3 action he may have filed, see Lewis, 518 U.S. at 354, the Court finds Plaintiff’s access to 4 courts claims must be dismissed for failing to state a plausible claim upon which § 1983 5 relief can be granted. See 28 U.S.C. § 1915 (e)(2)(B)(ii), § 1915A(b)(1); Iqbal, 556 U.S. 6 at 678 . 7 F. Leave to Amend 8 While the Court has dismissed all of Plaintiff’s claims, it must also grant Plaintiff 9 leave to amend them–if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 10 2015) (“A district court should not dismiss a pro se complaint without leave to amend 11 [pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii)] unless ‘it is absolutely clear that the 12 deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar v. 13 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)); Cervantes, 5 F.3d at 1277 (noting that a 14 time-barred action may not ordinarily be dismissed at pleading without leave to amend 15 unless “some fact, evident from the face of the complaint, support[s] the conclusion that 16 the plaintiff could not prevail, as a matter of law, on the equitable tolling issue.”). 17 Should Plaintiff’s Amended Complaint fail to allege facts sufficient to establish the 18 timeliness of his claims, however, he is hereby cautioned that the Court will dismiss the 19 those claims without further leave amend. Plaintiff is also cautioned that while Rule 8 of 20 the Federal Rules of Civil Procedure “does not require detailed factual allegations, . . . it 21 demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 22 Iqbal, 556 U.S. at 678 (internal quotation marks omitted). 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 III. Conclusion and Order 2 Based on the foregoing, the Court: 3 1) GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915 (a) 4 (ECF No. 2). 5 2) DIRECTS the Secretary of the CDCR, or their designee, to collect from 6 Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly 7 payments from his account in an amount equal to twenty percent (20%) of the preceding 8 month’s income and forwarding those payments to the Clerk of the Court each time the 9 amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915 (b)(2). ALL 10 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 11 ASSIGNED TO THIS ACTION. 12 3) DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 13 Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 14 4) DISMISSES Plaintiff’s Complaint (ECF No. 1) sua sponte for failing to 15 state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii) 16 and § 1915A(b)(1). 17 5) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 18 which to file an Amended Complaint which cures the deficiencies of pleading noted. 19 Plaintiff’s Amended Complaint must be complete by itself without reference to his 20 original pleading. Defendants not named and any claim not re-alleged in his Amended 21 Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, 22 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 23 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 24 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 25 amended pleading may be “considered waived if not repled.”). 26 Plaintiff’s Amended Complaint, should he elect to file one, must be captioned as 27 his “First Amended Complaint,” contain S.D. Cal. Civil Case No. 21cv0124 CAB (AHG) 28 in its caption, and comply both with FED. R. CIV. P. 8 and with S.D. CAL. CIVLR 8.2.a. 1 || The Court DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its 2 || form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for Plaintiff's use and to 3 || assist him in complying with LR 8.2.a’s requirements. 4 IT IS SO ORDERED. 5 Dated: February 12, 2021 € [6] Hon. Cathy Ann Bencivengo 7 United States District Judge