Munford v. Sanchez

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 THOMAS JEROME MUNFORD, Case No.: 21-CV-851 JLS (JLB) CDCR #BE8370, [12] ORDER (1) GRANTING MOTION Plaintiff, 13 TO PROCEED IN FORMA v. PAUPERIS AND (2) DISMISSING [14] WITHOUT PREJUDICE FIRST 15 AMENDMENT CLAIMS FOR J. SANCHEZ; T. ARMSTEAD; and FAILURE TO STATE A CLAIM 16 A. LARACCO, PURSUANT TO 28 U.S.C. 17 Defendants. §§ 1915(e)(2)(B) AND 1915A(b) [18] (ECF Nos. 1, 2) [22] 23 Plaintiff Thomas Jerome Munford (“Plaintiff”), currently incarcerated at Richard J. 24 Donovan Correctional Facility (“RJD”), is proceeding pro se in this civil rights action 25 pursuant to 42 U.S.C. § 1983 . See ECF No. 1 (“Compl.”). Plaintiff alleges that three 26 correctional officers violated his First and Eighth Amendment rights. See id. at 3–4. 27 / / / 28 / / / 1 Plaintiff did not prepay the $402 civil filing fee required by 28 U.S.C. § 1914 (a) at 2 the time of filing and has instead filed a Motion to Proceed in Forma Pauperis (“IFP”) 3 pursuant to 28 U.S.C. § 1915 (a). See ECF No. 2 (“IFP Mot.”). 4 MOTION TO PROCEED IN FORMA PAUPERIS 5 All parties instituting any civil action, suit, or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $402.1 See 28 U.S.C. § 1914 (a). An action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 10 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 11 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 12 Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182 , 1185 13 (9th Cir. 2015), regardless of whether his action is ultimately dismissed. See 28 U.S.C. 14 § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 15 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 16 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 17 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 18 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 19 trust account statement, the Court assesses an initial payment of twenty percent of (a) the 20 average monthly deposits in the account for the past six months, or (b) the average monthly 21 balance in the account for the past six months, whichever is greater, unless the prisoner has 22 no assets. See 28 U.S.C. §§ 1915 (b)(1), (b)(4). The institution having custody of the 23 prisoner then collects subsequent payments, assessed at twenty percent of the preceding 24 month’s income, in any month in which his account exceeds ten dollars, and forwards those [26] 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See [27] 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed [28] 1 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915 (b)(2); Bruce, [2] 136 S. Ct. at 629 . 3 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 4 account statement pursuant to 28 U.S.C. § 1915 (a)(2) and Civil Local Rule 3.2. Andrews, [5] 398 F.3d at 1119 . The Court has reviewed Plaintiff’s trust account activity, as well as the 6 attached prison certificate verifying his available balances. See ECF No. 4 at 1, 3. These 7 documents show that Plaintiff carried an average monthly balance of $0.02 and had average 8 monthly deposits to his trust account of $0.00 for the six months preceding the filing of 9 this action, and that Plaintiff had an available balance of just $0.17 at the time of filing. 10 See id. at 1. 11 Therefore, the Court GRANTS Plaintiff’s IFP Motion and declines to impose the 12 initial partial filing fee pursuant to 28 U.S.C. § 1915 (b)(1) because his prison certificate 13 indicates he may currently have “no means to pay it.” See 28 U.S.C. § 1915 (b)(4) 14 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action or 15 appealing a civil action or criminal judgment for the reason that the prisoner has no assets 16 and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 17 (finding that 28 U.S.C. § 1915 (b)(4) acts as a “safety-valve” preventing dismissal of a 18 prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available 19 to him when payment is ordered”). Instead, the Court directs the Secretary of the California 20 Department of Corrections and Rehabilitation (“CDCR”), or her designee, to collect the 21 entire $350 balance of the filing fee required by 28 U.S.C. § 1914 and to forward it to the 22 Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 23 § 1915(b)(1). 24 SCREENING PURSUANT TO 28 U.S.C. §§ 1915 (E)(2) AND 1915A(B) 25 I. Legal Standard 26 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre27 answer screening pursuant to 28 U.S.C. §§ 1915 (e)(2) and 1915A(b). Under these statutes, 28 the Court must dismiss sua sponte a prisoner’s IFP complaint, or any portion of it, that is 1 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 2 immune. See Lopez v. Smith, 203 F.3d 1122 , 1126–27 (9th Cir. 2000) (en banc) (discussing [3] 28 U.S.C. § 1915 (e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 4 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 5 targets of frivolous or malicious suits need not bear the expense of responding.’” 6 Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 7 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 8 “The standard for determining whether a plaintiff has failed to state a claim upon 9 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule 10 of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 11 F.3d 1108 , 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 12 Cir. 2012) (noting that screening pursuant to section 1915A “incorporates the familiar 13 standard applied in the context of failure to state a claim under Federal Rule of Civil 14 Procedure 12(b)(6)”). Rule 12(b)(6) requires that a complaint “contain sufficient factual 15 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 16 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 17 1121. 18 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 19 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 20 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for relief 21 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 22 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 23 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 24 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 25 II. Plaintiff’s Factual Allegations 26 Plaintiff alleges that on July 4, 2020, he witnessed an incident during which 27 Defendant Laracco attacked a cuffed inmate without justification. Compl. at 3. Plaintiff, 28 who was nearby, stood up and protested, yelling at Defendant Laracco and two other 1 correctional officers present, Defendants Sanchez and Armstead. See id. When Plaintiff 2 told Defendant Sanchez that she should stop the attack, she said “I know,” but she told 3 Plaintiff to sit down. Id. When Plaintiff refused to sit down, Defendant Armstead shot 4 Plaintiff in the back with a block gun. Id. After Plaintiff fell to the ground, Defendant 5 Laracco tried to use a smoke grenade. See id. When that failed, Defendants Laracco and 6 Sanchez pepper-sprayed Plaintiff “for at least 8 seconds all over [his] face, back and the 7 back of [his] head.” Id. Plaintiff was then handcuffed, taken to a holding cell, and seen by 8 a nurse, who documented Plaintiff’s injuries. Id. Those injuries allegedly included bruises 9 to and swelling of Plaintiff’s back as well as pain that continues to this day. See id. at 4. 10 Plaintiff was subsequently taken to administrative segregation and charged with 11 assault on a peace officer. See id. at 3. That charge was later reduced to behavior which 12 could lead to violence. Id. at 9. Plaintiff alleges that these charges were unsupported by 13 the evidence and were imposed to conceal Defendants’ wrongdoing. See id. 14 The pagination of Plaintiff’s Complaint is somewhat confusing, but as best as the 15 Court can determine, Plaintiff asserts two causes of action. First, he alleges that Defendants 16 used excessive force in violation of the Eighth Amendment’s prohibition on cruel and 17 unusual punishment when they shot Plaintiff with the block gun and used pepper spray 18 while Plaintiff was prone on the ground. See id. at 3, 8–10. Second, Plaintiff contends that 19 Defendants violated his First Amendment rights to freedom of speech and freedom from 20 retaliation when they attacked him for protesting their use of excessive force against the 21 other inmate. See id. at 4. Confusingly, Plaintiff’s Complaint contains two different 22 prayers for relief, each requesting compensatory and punitive damages (though in different 23 amounts), but only one requesting injunctive relief directing training for correctional 24 officers on de-escalation with inmates with mental health issues. See id. at 7; see also id. 25 at 11. Plaintiff also requests fees and costs. See id. at 7, 11. 26 III. Analysis 27 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two essential 28 elements: (1) that a right secured by the Constitution or laws of the United States was 1 violated, and (2) that the alleged violation was committed by a person acting under the 2 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030 , 3 1035–36 (9th Cir. 2015). As mentioned, Plaintiff asserts claims based on both the Eighth 4 and First Amendments. 5 The Court finds that Plaintiff’s Complaint contains plausible Eighth Amendment 6 excessive force allegations sufficient to clear the “low threshold” set for sua sponte 7 screening required by 28 U.S.C. §§ 1915 (e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 8 1123; Iqbal, 556 U.S. at 678 . In assessing claims arising out of the use of excessive 9 physical force, the issue is “whether force was applied in a good-faith effort to maintain or 10 restore discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 11 U.S. 34, 37 (2010) (per curiam) (citing Hudson v. McMillian, 503 U.S. 1, 7 , (1992)). The 12 Supreme Court has emphasized that this issue cannot be determined “mechanically,” and 13 that the inquiry “requires careful attention to the facts and circumstances of each particular 14 case.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015); Graham v. Connor, 490 U.S. 15 386, 397 (1989). At this early stage of the proceedings and given the liberal construction 16 to which pro se pleadings are entitled, Plaintiff’s allegations are sufficient. Nevertheless, 17 the Court cautions Plaintiff that the sua sponte screening process is “cumulative of, not a 18 substitute for, any subsequent [motion to dismiss] that the defendant may choose to bring.” 19 See Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 20 As for Plaintiff’s First Amendment claims, however, the Court finds that they must 21 be dismissed for failure to state a claim. “[C]onvicted prisoners do not forfeit all 22 constitutional protections by reason of their conviction and confinement in prison,” Bell v. 23 Wolfish, 441 U.S. 520, 545 (1979), but a prisoner’s First Amendment rights are 24 “necessarily limited by the fact of incarceration, and may be curtailed in order to achieve 25 legitimate correctional goals or to maintain prison security.” See McElyea v. Babbit, 833 26 F.2d 196 , 197 (9th Cir. 1987). “In order to state a cognizable First Amendment free speech 27 claim, Plaintiff must plead that his speech was constitutionally protected, that Defendant’s 28 actions would chill an ordinary person from continuing in that activity, and that 1 Defendant’s actions were motivated by his constitutionally protected speech.” Nunez v. 2 Ramirez, No. 09cv413-WQH (BLM), 2009 WL 6305676 , at *4 (S.D. Cal. Nov. 12, 2009) 3 (citing Mendocino Envt’l Ctr. v. Mendocino Cty., 192 F.3d 1283 , 1300–01 (9th Cir. 1999)). 4 To state a claim for First Amendment retaliation, Plaintiff must allege that: (1) a state actor 5 took some adverse action against him, (2) the adverse action was the result of First 6 Amendment protected conduct, (3) the state actor’s actions “would chill or silence a person 7 of ordinary firmness from future First Amendment activities,” and (4) the adverse action 8 did not reasonably advance legitimate correctional goals. See Rhodes v. Robinson, 408 9 F.3d 559, 567-68 (9th Cir. 2005). 10 As other courts have found, a direct verbal confrontation between an inmate and a 11 correctional officer is not protected speech “because such behavior may present the danger 12 of a disturbance.” See Nunez, 2009 WL 6305676 , at *4 (collecting cases); see also Johnson 13 v. Carroll, No. 2:08-cv-1494 KJN P, 2012 WL 2069561 , at *33 (E.D. Cal. June 7, 2012) 14 (“The consensus of the cases that have considered [the scope of protected speech within 15 prisons] appears to be that an inmate’s verbal challenges . . . to correctional staff are not 16 within the ambit of First Amendment protection, . . . while similar written challenges may 17 be protected, particularly if set forth in a formal grievance . . . .” (citation omitted)). For 18 this reason, other courts have also concluded that allegations of retaliation for verbal 19 confrontations with correctional officers do not give rise to a First Amendment retaliation 20 claim, which additionally requires allegations of adverse action taken as a result of First 21 Amendment protected conduct. See Garrido v. Coughlin, 716 F. Supp. 98 , 101-02 22 (S.D.N.Y. June 27, 1989) (inmate’s “verbal confrontation” with correctional officer over 23 the “allegedly abusive treatment of another inmate” did not give rise to a First Amendment 24 retaliation claim); see also Johnson, 2012 WL 2069561 , at *34 (concluding that, because 25 confrontational speech toward correctional officers was not protected speech, it did not 26 support a retaliation claim). Plaintiff has not plausibly alleged any reason why these 27 authorities would not apply to his claims or any alternative grounds on which to conclude 28 that his statements to Defendants and his refusal to follow their orders to sit down were 1 protected speech. Accordingly, Plaintiff’s First Amendment claims must be dismissed sua 2 sponte in their entirety for failure to state a claim upon which relief may be granted. See [3] 28 U.S.C. §§ 1915 (e)(2)(B)(ii), 1915A(b)(1). 4 IV. Leave to Amend 5 Because the Court has determined that some of Plaintiff’s claims survive the sua 6 sponte screening process, the Court will give Plaintiff the opportunity to either: (1) notify 7 the Court of his intent to proceed with his Eighth Amendment claims only, or (2) file an 8 amended pleading correcting the deficiencies in his Complaint identified in this Order, if 9 he can. Plaintiff must act upon one of these options within forty-five (45) days of the date 10 on which this Order is electronically docketed. If Plaintiff choses to proceed only as to the 11 Eighth Amendment claims that survived screening, the Court will issue an Order directing 12 the U.S. Marshal to effect service of Plaintiff’s Complaint on Defendants and dismiss the 13 remaining claims. 14 CONCLUSION 15 In light of the foregoing and good cause appearing, the Court: 16 1. GRANTS Plaintiff’s Motion to Proceed in Forma Pauperis Pursuant to 28 17 U.S.C. § 1915 (a) (ECF No. 2); 18 2. ORDERS the Secretary of CDCR, or her designee, to collect from Plaintiff’s 19 prison trust account the $350 filing fee owed by collecting monthly payments from 20 Plaintiff’s account in an amount equal to twenty percent (20%) of the preceding month’s 21 income and forwarding those payments to the Clerk of the Court each time the amount in 22 the account exceeds ten dollars ($10) pursuant to 28 U.S.C. § 1915 (b)(2). ALL PAYMENTS 23 SHALL BE CLEARLY IDENTIFIED BY THE CASE NAME AND NUMBER ASSIGNED 24 TO THIS ACTION; 25 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 26 Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 27 942883, Sacramento, California 94283-0001; 28 / / / l 4. DISMISSES Plaintiff's First Amendment claims for failure to state a claim 2 || pursuant to 28 U.S.C. §§ 1915 (e)(2) and 1915A(b); and 3 5. GRANTS Plaintiff forty-five (45) days’ leave from the date on which this 4 || Order is electronically docketed in which to either: (1) notify the Court of his intention to 5 || proceed with the claims that survived sua sponte screening only; or (2) file an amended 6 ||complaint that cures the deficiencies of pleading noted above. Any amended complaint 7 ||must be complete by itself without reference to his original pleading. Defendants not 8 ||named and any claim not realleged in the amended complaint will be considered waived. 9 || See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 10 || 1542, 1546 (9th Cir. 1989) (“[AJn amended pleading supersedes the original.”); Lacey v. 11 || Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave 12 amend that are not realleged in an amended pleading may be “considered waived if not 13 ||repled”). 14 IT IS SO ORDERED. 15 || Dated: August 23, 2021 . tt f te 16 on. Janis L. Sammartino 7 United States District Judge