Williams v. Small et al, No. 3:2009cv01957 - Document 3 (S.D. Cal. 2009)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis; and Sua Sponte Dismissing Complaint for Failing to State a Claim Pursuant to 28 U.S.C. 1915. Plaintiff is granted 45 days leave from the date this Order is filed to file a First Amende d Complaint. Clerk of Court is directed to mail a Court approved 1983 complaint form to Plaintiff. Signed by Judge Michael M. Anello on 10/30/2009. (cc: 1983 form mailed to Plaintiff) (All non-registered users served via U.S. Mail Service)(leh) (av1).
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Williams v. Small et al Doc. 3 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 STEPHEN JEROME WILLIAMS , CDCR #P-77060, Plaintiff, 13 14 Civil No. ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, [Doc. No. 2]; and vs. 15 16 17 09-1957 MMA (RBB) LARRY SMALL, et al., (2) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A Defendants. 18 19 Stephen Jerome Williams (“Plaintiff”), a state inmate currently incarcerated at Calipatria 20 State Prison located in Calipatria, California and proceeding pro se, has filed a civil rights action 21 filed pursuant to 42 U.S.C. § 1983. Plaintiff has not prepaid the $350 filing fee mandated by 28 22 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 23 to 28 U.S.C. § 1915(a) [Doc. No. 2]. 24 I. 25 MOTION TO PROCEED IFP 26 All parties instituting any civil action, suit or proceeding in a district court of the United 27 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee -1- 09cv1957 MMA (RBB) Dockets.Justia.com 1 only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. 2 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed IFP 3 remains obligated to pay the entire fee in installments, regardless of whether his action is 4 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 5 (9th Cir. 2002). 6 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a 7 prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account 8 statement (or institutional equivalent) for the prisoner for the six-month period immediately 9 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 10 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 11 payment of 20% of (a) the average monthly deposits in the account for the past six months, or 12 (b) the average monthly balance in the account for the past six months, whichever is greater, 13 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 14 institution having custody of the prisoner must collect subsequent payments, assessed at 20% 15 of the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and 16 forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 17 § 1915(b)(2). 18 The Court finds that Plaintiff has submitted a certified copy of his trust account statement 19 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Andrews, 398 F.3d at 1119. 20 Plaintiff’s trust account statement shows he has insufficient funds with which to pay any initial 21 partial filing fee. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 22 prohibited from bringing a civil action or appealing a civil action or criminal judgment for the 23 reason that the prisoner has no assets and no means by which to pay [an] initial partial filing 24 fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 25 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack 26 of funds available.”). 27 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP [Doc. No. 2], and 28 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 -2- 09cv1957 MMA (RBB) 1 balance of the filing fees mandated shall be collected 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. 4 SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 5 The PLRA also obligates the Court to review complaints filed by all persons proceeding 6 IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 7 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 8 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 9 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 10 provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, 11 which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who 12 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126- 13 27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) 14 (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing 15 § 1915A). 16 “[W]hen determining whether a complaint states a claim, a court must accept as true all 17 allegations of material fact and must construe those facts in the light most favorable to the 18 plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) 19 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s 20 duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept., 21 839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v. 22 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a 23 pro se civil rights complaint, the court may not “supply essential elements of claims that were 24 not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th 25 Cir. 1982). “Vague and conclusory allegations of official participation in civil rights violations 26 are not sufficient to withstand a motion to dismiss.” Id. 27 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person 28 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived -3- 09cv1957 MMA (RBB) 1 the claimant of some right, privilege, or immunity protected by the Constitution or laws of the 2 United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on 3 other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger, 769 F.2d 4 1350, 1354 (9th Cir. 1985) (en banc). 5 A. Excessive Force Claims 6 Plaintiff alleges that he was “illegally in possession of a cellular telephone” when prison 7 officials came to his cell on February 26, 2009. See Compl. at 5. He further alleges that “before 8 complying with the order to ‘cuff up.’ [Plaintiff] grabbed the cell phone,” removed the memory 9 card, and “placed it in my mouth, chewed it and swallowed it.” Id. After Plaintiff swallowed 10 the memory card, Defendant Bustamonte is alleged to have sprayed Plaintiff with pepper spray. 11 Id. 12 When an inmate claims that prison officials violated his Eighth Amendment rights by 13 using excessive force, the relevant inquiry is “whether force was applied in a good-faith effort 14 to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. 15 McMillian, 503 U.S. 1, 7 (1992). An Eighth Amendment violation occurs only when an inmate 16 is subjected to the “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 17 319 (1986). To determine whether Plaintiff has satisfied the malicious and sadistic standard, the 18 Court examines the following five factors: (1) the extent of the injury suffered; (2) the need for 19 the application of force; (3) the relationship between that need and the amount of force used; (4) 20 the threat reasonably perceived by Defendants; and (5) any efforts made to temper the severity 21 of a forceful response. Hudson, 503 U.S. at 7; Whitley, 475 U.S. at 321. 22 Here, Plaintiff’s facts fail to show that the actions of the Defendants rises to the level of 23 “malicious and sadistic.” Id. Plaintiff admits to attempting to hide contraband and failed to 24 obey the orders of the officers that came to his cell. No other force is alleged to be used against 25 Plaintiff other than Plaintiff’s allegations that they used pepper spray. The facts, even taken in 26 the light most favorable to Plaintiff, demonstrate that the pepper spray was used “in a good faith 27 effort to restore discipline and order and not maliciously and sadistically for the very purpose 28 of causing harm.” Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002). Thus, Plaintiff’s -4- 09cv1957 MMA (RBB) 1 Eighth Amendment excessive force claims are dismissed for failing to state a claim upon which 2 § 1983 relief can be granted. 3 B. Fourth Amendment Strip Search Claims 4 Plaintiff also alleges that despite the fact he had been caught swallowing contraband, 5 there was “no penological need to conduct two (2) separate strip searches of [his] bodily 6 cavities.” Compl. at 7. Generally, strip searches do not violate the Fourth Amendment rights 7 of prisoners. See Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir. 1988). However, strip 8 searches that are “excessive, vindictive, harassing or unrelated to any legitimate penological 9 interest,” may be unconstitutional. Id. at 332. 10 In his Complaint, Plaintiff admits to hiding contraband by swallowing it. See Compl. at 11 5. The facts related to the initial strip search following Plaintiff’s admission that he was 12 attempting to hide contraband fails to state a Fourth Amendment claim upon which relief may 13 be granted. 14 C. Fourteenth Amendment Due Process Claims 15 Plaintiff claims that his due process rights were violated when prison officials failed to 16 properly process his administrative grievances. The Fourteenth Amendment to the United States 17 Constitution provides that: “[n]o state shall . . . deprive any person of life, liberty, or property, 18 without due process of law.” U.S. CONST. amend. XIV, § 1. “The requirements of procedural 19 due process apply only to the deprivation of interests encompassed by the Fourteenth 20 Amendment’s protection of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569 21 (1972). State statutes and prison regulations may grant prisoners liberty or property interests 22 sufficient to invoke due process protection. Meachum v. Fano, 427 U.S. 215, 223-27 (1976). 23 Thus, to state a procedural due process claim, Plaintiff must allege: “(1) a liberty or property 24 interest protected by the Constitution; (2) a deprivation of the interest by the government; [and] 25 (3) lack of process.” Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000). 26 To the extent Plaintiff challenges the procedural adequacy of CDCR inmate grievance 27 procedures, his Complaint fails to state a due process claim. This is because the Ninth Circuit 28 has held that prisoners have no protected property interest in an inmate grievance procedure -5- 09cv1957 MMA (RBB) 1 arising directly from the Due Process Clause. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 2 1988) (finding that the due process clause of the Fourteenth Amendment creates “no legitimate 3 claim of entitlement to a [prison] grievance procedure”); accord Adams v. Rice, 40 F.3d 72, 75 4 (4th Cir. 1994) (1995); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) 5 In addition, Plaintiff has failed to plead facts sufficient to show that any named prison 6 official deprived him of a protected liberty interest by allegedly failing to respond to his prison 7 grievances in a satisfactory manner. While a liberty interest can arise from state law or prison 8 regulations, Meachum, 427 U.S. at 223-27, due process protections are implicated only if 9 Plaintiff alleges facts to show that Defendants: (1) restrained his freedom in a manner not 10 expected from his sentence, and (2) “impose[d] atypical and significant hardship on [him] in 11 relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995); 12 Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997). Plaintiff pleads no facts to suggest how 13 the allegedly inadequate review and consideration of his inmate grievances amounted to a 14 restraint on his freedom not contemplated by his original sentence or how they resulted in an 15 “atypical” and “significant hardship.” Sandin, 515 U.S. at 483-84. Accordingly, Plaintiff’s 16 Fourteenth Amendment due process claims are dismissed for failing to state a claim upon which 17 § 1983 relief can be granted. 18 The Court finds that Plaintiff’s Complaint must be dismissed sua sponte for failing to 19 state a claim upon which relief could be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B). See 20 Lopez, 203 F.3d at 1126-27. 21 IV. 22 CONCLUSION AND ORDER 23 Good cause appearing therefor, IT IS HEREBY ORDERED that: 24 1. 25 is GRANTED. Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2] 26 IT IS FURTHER ORDERED that: 27 2. 28 Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(b) & 1915A. However, Plaintiff is GRANTED forty five (45) days leave from -6- 09cv1957 MMA (RBB) 1 the date this Order is filed in which to file a First Amended Complaint which cures all the 2 deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete in itself 3 without reference to the superseded pleading. See S.D. CAL. CIVLR 15.1. Defendants not 4 named and all claims not re-alleged in the Amended Complaint will be considered waived. See 5 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended Complaint 6 fails to state a claim upon which relief may be granted, it may be dismissed without further 7 leave to amend and may hereafter be counted as a “strike” under 28 U.S.C. § 1915(g). See 8 McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996). 9 3. 10 Plaintiff. 11 12 The Clerk of Court is directed to mail a court approved § 1983 form complaint to IT IS SO ORDERED. DATED: October 30, 2009 13 14 15 Hon. Michael M. Anello United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- 09cv1957 MMA (RBB)
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