Jones v. Parano et al, No. 3:2011cv02556 - Document 3 (S.D. Cal. 2011)
Court Description: ORDER Granting Plaintiff's Motion to Proceed in Forma Pauperis 2 , Imposing No Initial Partial Filing Fee, Garnishing $350.00 Balance from Prisoner's Trust Account, and Dismissing Complaint for Failure to State a Claim. Plaintiff is granted 45 days leave from the date this Order is Filed in which to file a First Amended Complaint. Signed by Judge Larry Alan Burns on 12/13/11(form 1983 complaint mailed to plaintiff)(All non-registered users served via U.S. Mail Service)(kaj)
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Jones v. Parano et al Doc. 3 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 11 12 ELVIS JONES, JR., CDCR #G-41716, Civil No. Plaintiff, 13 ORDER: (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE, GARNISHING $350.00 BALANCE FROM PRISONER’S TRUST ACCOUNT [ECF No. 2]; and 14 vs. 15 16 17 18 DANIEL PARANO; ALAN HERNANDEZ; K. BALAKAIN; MANNY RECEDRO; 19 11cv2556 LAB (BGS) (2) DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b); Defendants. 20 21 22 Elvis Jones, Jr., a state prisoner currently incarcerated at the Richard J. Donovan 23 Correctional Facility (“Donovan”) located in San Diego, California, and proceeding pro se, has 24 submitted a civil action pursuant to 42 U.S.C. § 1983. Additionally, Plaintiff has filed a certified 25 copy of his inmate trust account statement which the Court construes to be his Motion to Proceed 26 In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No. 2]. 27 /// 28 /// K :\C O M M O N \E V E R Y O N E \_ E F I L E - P R O S E \L A B \ 1 1 c v 2 5 5 6 -g r t IF P & d s m .w p d , 1 2 1 4 1 1 1 11cv2556 LAB (BGS) Dockets.Justia.com 1 I. 2 M OTION TO P ROCEED IFP [ECF No. 2] 3 All parties instituting any civil action, suit or proceeding in a district court of the United 4 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 5 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee 6 only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 7 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to 8 proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their 9 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 10 844, 847 (9th Cir. 2002). 11 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a 12 prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account 13 statement (or institutional equivalent) for the prisoner for the six-month period immediately 14 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 15 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 16 payment of 20% of (a) the average monthly deposits in the account for the past six months, or 17 (b) the average monthly balance in the account for the past six months, whichever is greater, 18 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 19 institution having custody of the prisoner must collect subsequent payments, assessed at 20% 20 of the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and 21 forward those payments to the Court until the entire filing fee is paid. 22 § 1915(b)(2). See 28 U.S.C. 23 The Court finds that Plaintiff has no available funds from which to pay filing fees at this 24 time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited 25 from bringing a civil action or appealing a civil action or criminal judgment for the reason that 26 the prisoner has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 27 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 28 dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds K :\C O M M O N \E V E R Y O N E \_ E F I L E - P R O S E \L A B \ 1 1 c v 2 5 5 6 -g r t IF P & d s m .w p d , 1 2 1 4 1 1 2 11cv2556 LAB (BGS) 1 available to him when payment is ordered.”). Therefore, the Court GRANTS Plaintiff’s Motion 2 to Proceed IFP [ECF No. 2] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). 3 However, the entire $350 balance of the filing fees mandated shall be collected and forwarded 4 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 5 § 1915(b)(1). 6 II. 7 R EPRESENTATION 8 As an initial matter, Plaintiff purports to bring this action on behalf of himself and other 9 inmates housed at Donovan. However, because Plaintiff is proceeding pro se, he has no 10 authority to represent the legal interest of any other party. See Cato v. United States, 70 F.3d 11 1103, 1105 n.1 (9th Cir. 1995); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th 12 Cir. 1987); see also F ED.R.C IV.P. 11(a) (“Every pleading, written motion, and other paper shall 13 be signed by at least one attorney of record in the attorney’s original name, or if the party is not 14 represented by an attorney, shall be signed by the party.”). Here, while Plaintiff purports to bring 15 this action on behalf of an unidentified class, he may not do so. 16 III. 17 I NITIAL S CREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1) 18 Notwithstanding IFP status or the payment of any partial filing fees, the Court must 19 subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening 20 and order the sua sponte dismissal of any case it finds “frivolous, malicious, failing to state a 21 claim upon which relief may be granted, or seeking monetary relief from a defendant immune 22 from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 23 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. 24 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not 25 only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that 26 fails to state a claim). 27 Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte 28 dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as K :\C O M M O N \E V E R Y O N E \_ E F I L E - P R O S E \L A B \ 1 1 c v 2 5 5 6 -g r t IF P & d s m .w p d , 1 2 1 4 1 1 3 11cv2556 LAB (BGS) 1 amended, 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to 2 the IFP provisions of section 1915 make and rule on its own motion to dismiss before directing 3 the U.S. Marshal to effect service pursuant to F ED.R.C IV.P. 4(c)(3). See Calhoun, 254 F.3d at 4 845; Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 5 1997) (stating that sua sponte screening pursuant to § 1915 should occur “before service of 6 process is made on the opposing parties”). 7 “[W]hen determining whether a complaint states a claim, a court must accept as true all 8 allegations of material fact and must construe those facts in the light most favorable to the 9 plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren, 152 F.3d at 1194 10 (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”); 11 Andrews, 398 F.3d at 1121. In addition, the Court has a duty to liberally construe a pro se’s 12 pleadings, see Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988), 13 which is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 14 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the 15 court may not “supply essential elements of claims that were not initially pled.” Ivey v. Board 16 of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 17 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person 18 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived 19 the claimant of some right, privilege, or immunity protected by the Constitution or laws of the 20 United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122 21 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). 22 Plaintiff claims, in very general terms, that he has been unable to obtain adequate time 23 in the prison’s law library. Prisoners do “have a constitutional right to petition the government 24 for redress of their grievances, which includes a reasonable right of access to the courts.” 25 O’Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); accord Bradley v. Hall, 64 F.3d 26 1276, 1279 (9th Cir. 1995). In Bounds, 430 U.S. at 817, the Supreme Court held that “the 27 fundamental constitutional right of access to the courts requires prison authorities to assist 28 inmates in the preparation and filing of meaningful legal papers by providing prisoners with K :\C O M M O N \E V E R Y O N E \_ E F I L E - P R O S E \L A B \ 1 1 c v 2 5 5 6 -g r t IF P & d s m .w p d , 1 2 1 4 1 1 4 11cv2556 LAB (BGS) 1 adequate law libraries or adequate assistance from persons who are trained in the law.” Bounds 2 v. Smith, 430 U.S. 817, 828 (1977). To establish a violation of the right to access to the courts, 3 however, a prisoner must allege facts sufficient to show that: (1) a nonfrivolous legal attack on 4 his conviction, sentence, or conditions of confinement has been frustrated or impeded, and (2) 5 he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An 6 “actual injury” is defined as “actual prejudice with respect to contemplated or existing litigation, 7 such as the inability to meet a filing deadline or to present a claim.” Id. at 348; see also Vandelft 8 v. Moses, 31 F.3d 794, 796 (9th Cir. 1994); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); 9 Keenan v. Hall, 83 F.3d 1083, 1093 (9th Cir. 1996). 10 Here, Plaintiff has failed to alleged any actions with any particularity that have precluded 11 his pursuit of a non-frivolous direct or collateral attack upon either his criminal conviction or 12 sentence or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to 13 access to the courts protects only an inmate’s need and ability to “attack [his] sentence[], directly 14 or collaterally, and ... to challenge the conditions of [his] confinement.”). In addition, Plaintiff 15 must also describe the non-frivolous nature of the “underlying cause of action, whether 16 anticipated or lost.” Christopher v. Harbury, 536 U.S. 403, 415 (2002) . 17 In short, Plaintiff has not alleged that “a complaint he prepared was dismissed,” or that 18 he was “so stymied” by any individual defendant’s actions that “he was unable to even file a 19 complaint,” direct appeal or petition for writ of habeas corpus that was not “frivolous.” Lewis, 20 518 U.S. at 351; Christopher, 536 U.S. at 416 (“like any other element of an access claim[,] ... 21 the predicate claim [must] be described well enough to apply the ‘nonfrivolous’ test and to show 22 that the ‘arguable’ nature of the underlying claim is more than hope.”). Therefore, Plaintiff’s 23 access to courts claims must be dismissed for failing to state a claim upon which section 1983 24 relief can be granted. See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446. 25 Accordingly, the Court finds that Plaintiff’s Complaint fails to state a section 1983 claim 26 upon which relief may be granted, and is therefore subject to dismissal pursuant to 28 U.S.C. 27 §§ 1915(e)(2)(b) & 1915A(b). The Court will provide Plaintiff with an opportunity to amend 28 his pleading to cure the defects set forth above. Plaintiff is warned that if his amended complaint K :\C O M M O N \E V E R Y O N E \_ E F I L E - P R O S E \L A B \ 1 1 c v 2 5 5 6 -g r t IF P & d s m .w p d , 1 2 1 4 1 1 5 11cv2556 LAB (BGS) 1 fails to address the deficiencies of pleading noted above, it may be dismissed with prejudice and 2 without leave to amend. 3 IV. 4 C ONCLUSION AND O RDER 5 Good cause appearing, IT IS HEREBY ORDERED that: 6 1. 7 8 Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is GRANTED. 2. The Secretary of California Department of Corrections and Rehabilitation, or his 9 designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee 10 owed in this case by collecting monthly payments from the account in an amount equal to twenty 11 percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court 12 each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). 13 ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 14 ASSIGNED TO THIS ACTION. 15 3. The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate, 16 Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, 17 Sacramento, California 95814. 18 IT IS FURTHER ORDERED that: 19 4. Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. 20 §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave 21 from the date this Order is “Filed” in which to file a First Amended Complaint which cures all 22 the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete in 23 itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants 24 not named and all claims not re-alleged in the Amended Complaint will be deemed to have been 25 waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended 26 Complaint fails to state a claim upon which relief may be granted, it may be dismissed without 27 further leave to amend and may hereafter be counted as a “strike” under 28 U.S.C. § 1915(g). 28 See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996). K :\C O M M O N \E V E R Y O N E \_ E F I L E - P R O S E \L A B \ 1 1 c v 2 5 5 6 -g r t IF P & d s m .w p d , 1 2 1 4 1 1 6 11cv2556 LAB (BGS) 1 5. 2 The Clerk of Court is directed to mail a court approved form § 1983 complaint to Plaintiff. 3 IT IS SO ORDERED. 4 DATED: December 13, 2011 5 6 H ONORABLE L ARRY A LAN B URNS United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K :\C O M M O N \E V E R Y O N E \_ E F I L E - P R O S E \L A B \ 1 1 c v 2 5 5 6 -g r t IF P & d s m .w p d , 1 2 1 4 1 1 7 11cv2556 LAB (BGS)
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