Marano v. Neotti et al, No. 3:2013cv03117 - Document 5 (S.D. Cal. 2014)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis. US Marshal shall effect service of complaint. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in th is case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). Plaintiff's Complaint is dismissed without prejudice for failing to state a claim as to defendant Wagner. The Clerk shall issue a summons as to Plaintiff's Complaint 1 upon Defendants NEOTTI, STOUT, DOMI NGUEZ, SAVALA, HODGE and the CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION. Defendants are thereafter ORDERED to reply to Plaintiffs Complaint within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). Signed by Judge Larry Alan Burns on 5/7/14. (Order electronically transmitted to Secretary of CDCR) (All non-registered users served via U.S. Mail Service)(IFP package prepared)(kaj)
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Marano v. Neotti et al Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 FRANK MARANO, CDCR #B-97636, Civil No. Plaintiff, 13 15 vs. 17 18 19 20 21 22 ORDER: (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS (ECF Doc. No. 2) 14 16 13cv3117 LAB (BLM) GEORGE NEOTTI, Warden; M. STOUT, Facility Captain; M. DOMINGUEZ, Culinary Officer; D. HODGE, Facility Patrol Officer; CALIFORNIA DEPARTMENT OF CORRECTIONS; DAVID M. WAGNER, Inmate; JOHN DOES 1-10, Defendants. 23 (2) DISMISSING COMPLAINT AS TO DEFENDANT WAGNER FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b) AND (3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE UPON REMAINING DEFENDANTS PURSUANT TO 28 U.S.C. § 1915(d) AND FED.R.CIV.P. 4(c)(3) 24 25 26 Frank Marano (“Plaintiff”), currently incarcerated at Richard J. Donovan 27 Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed 28 a civil rights action pursuant to 42 U.S.C. § 1983. I:\Everyone\_EFILE-PROSE\LAB\13cv3117-grt-IFP-dsm-def&serve.wpd 1 13cv3117 LAB (BLM) Dockets.Justia.com 1 Plaintiff claims the California Department of Corrections and Rehabilitation 2 (“CDCR”) and several RJD officials subjected him to “unsafe prison condition[s]” by 3 failing to properly supervise inmate plumbers’ access to “industrial sized tools.” See 4 Compl. ¶¶ 6-8, 23, 33-37, 47, 57. As a result, Plaintiff alleges his throat was “slashed” 5 with a box cutter by a fellow inmate while he was working to repair a drinking fountain 6 in RJD’s Facility 3 culinary area on December 10, 2009. See Compl. ¶¶ 3, 9. Plaintiff 7 further alleges that Defendants failed to provide him “competent medical care during a 8 . . . life-threatening emergency,” by transporting him to Alvarado Hospital instead of a 9 trauma center equipped to address his injury. Id. ¶¶ 17-18, 24. Plaintiff seeks injunctive 10 relief as well as general, “specific,” and “exemplar[y]” damages. Id. at 32-33. 11 Plaintiff did not prepay the filing fee required by 28 U.S.C. § 1914(a); instead, he 12 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) 13 (ECF Doc. No. 2), followed by a prison trust account certificate and certified copies of 14 his account activity as required by 28 U.S.C. § 1915(a)(2) (ECF Doc. No. 4). 15 I. PLAINTIFF’S MOTION TO PROCEED IFP 16 All parties instituting any civil action, suit or proceeding in a district court of the 17 United States, except an application for writ of habeas corpus, must pay a filing fee. See 18 28 U.S.C. § 1914(a).1 An action may proceed despite the plaintiff’s failure to prepay the 19 entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 20 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a 21 prisoner and is granted leave to proceed IFP, he nevertheless remains obligated to pay 22 the entire fee in installments, regardless of whether his action is ultimately dismissed. 23 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 24 2002). 25 /// 26 1 For civil actions filed on or before May 1, 2013, the filing fee was $350. Civil litigants filing actions on or after May 1, 2013, however, must now pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a), (b); Judicial Conference Schedule of Fees, District Court Misc. 28 Fee Schedule (eff. May 1, 2013). However, the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id. 27 I:\Everyone\_EFILE-PROSE\LAB\13cv3117-grt-IFP-dsm-def&serve.wpd 2 13cv3117 LAB (BLM) 1 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 2 (“PLRA”), a prisoner seeking leave to proceed IFP must also submit a “certified copy 3 of the trust fund account statement (or institutional equivalent) for . . . the six-month 4 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 5 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 6 statement, the Court must assess an initial payment of 20% of (a) the average monthly 7 deposits in the account for the past six months, or (b) the average monthly balance in the 8 account for the past six months, whichever is greater, unless the prisoner has no assets. 9 See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of 10 the prisoner must collect subsequent payments, assessed at 20% of the preceding 11 month’s income, in any month in which the prisoner’s account exceeds $10, and forward 12 those payments to the Court until the entire filing fee is paid. 13 § 1915(b)(2). See 28 U.S.C. 14 In support of his IFP Motion (ECF Doc. No. 2), Plaintiff has submitted certified 15 copies of his trust account statements pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. 16 CIVLR 3.2 (ECF Doc. No. 4). Andrews, 398 F.3d at 1119. The Court has reviewed 17 Plaintiff’s trust account statements, as well as the attached prison certificate issued by 18 a trust account official at RJD where he remains incarcerated which verifies his account 19 history and available balances. Plaintiff’s statements show an average monthly balance 20 of $302.94, average monthly deposits of $101.38, and an available balance in his account 21 of $230.94 at the time it was submitted to the Court for filing. Based on this financial 22 information, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF Doc. No. 2) 23 and assesses an initial partial filing fee of $60.58 pursuant to 28 U.S.C. § 1915(b)(1). 24 However, the Secretary of the CDCR, or his designee, shall collect this initial fee 25 only if sufficient funds in Plaintiff’s account are available at the time this Order is 26 executed pursuant to the directions set forth below. See 28 U.S.C. § 1915(b)(4) 27 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action 28 or appealing a civil action or criminal judgment for the reason that the prisoner has no I:\Everyone\_EFILE-PROSE\LAB\13cv3117-grt-IFP-dsm-def&serve.wpd 3 13cv3117 LAB (BLM) 1 assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 2 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal 3 of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 4 available to him when payment is ordered.”). The remaining balance of the $350 total 5 owed in this case shall be collected and forwarded to the Clerk of the Court pursuant to 6 the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 7 II. INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) AND 1915A(b)(1) 8 Notwithstanding IFP status or the payment of any partial filing fees, the PLRA 9 also obligates the Court to review complaints filed by all persons proceeding IFP and by 10 those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, 11 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 12 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 13 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 14 provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions 15 thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from 16 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. 17 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. 18 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 19 All complaints must contain “a short and plain statement of the claim showing 20 that the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations 21 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 22 by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 23 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 24 whether a complaint states a plausible claim for relief [is] ... a context-specific task that 25 requires the reviewing court to draw on its judicial experience and common sense.” Id. 26 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 27 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 28 /// I:\Everyone\_EFILE-PROSE\LAB\13cv3117-grt-IFP-dsm-def&serve.wpd 4 13cv3117 LAB (BLM) 1 “When there are well-pleaded factual allegations, a court should assume their 2 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 3 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 4 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 5 allegations of material fact and must construe those facts in the light most favorable to 6 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 7 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 8 However, while the court “ha[s] an obligation where the petitioner is pro se, 9 particularly in civil rights cases, to construe the pleadings liberally and to afford the 10 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 11 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not, in 12 so doing, “supply essential elements of claims that were not initially pled.” Ivey v. Board 13 of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 14 A. 42 U.S.C. § 1983 15 “Section 1983 creates a private right of action against individuals who, acting 16 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 17 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 18 substantive rights, but merely provides a method for vindicating federal rights elsewhere 19 conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks 20 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 21 deprivation of a right secured by the Constitution and laws of the United States, and (2) 22 that the deprivation was committed by a person acting under color of state law.” Tsao 23 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 24 B. Plaintiff’s Claims 25 As to his claims against Defendant Wagner, the inmate Plaintiff alleges attacked 26 him, Plaintiff may not proceed. Unlike the prison officials Plaintiff alleges acted in both 27 their individual and official capacities, see Compl. at 2-3; Leer v. Murphy, 844 F.2d 628, 28 633 (9th Cir. 1988) (finding prison officials “administer[ing] the prison” acted under I:\Everyone\_EFILE-PROSE\LAB\13cv3117-grt-IFP-dsm-def&serve.wpd 5 13cv3117 LAB (BLM) 1 color of state law for purposes of 42 U.S.C. § 1983), Wagner is alleged only to have 2 acted in his “personal capacity as an inmate,” Compl. at 3, and not “under color of state 3 law” when he attacked Plaintiff. See Gomez v. Toledo, 446 U.S. 635, 640 (1980) (a 4 private individual generally does not act under color of state law). Purely private 5 conduct, no matter how wrongful, is not covered under § 1983. Ouzts v. Maryland Nat’l 6 Ins. Co., 505 F.2d 547, 550 (9th Cir. 1974). Simply put–there is no right to be free from 7 the infliction of constitutional deprivations by private individuals. See Van Ort v. Estate 8 of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996). 9 As to the remaining Defendants, however, the Court finds that while Plaintiff 10 styles his “causes of action” in terms of state torts, workplace safety laws, and as a 11 “breach of contract” governing Defendants’ duty to respond to “reasonable and 12 heightened expection[s] of dangerous risk to the life of inmates and staff,” see Compl. 13 at 20, 21, 24, 25, 26, the “factual content” in his Complaint, when liberally construed, 14 is sufficient to “state a claim to relief [under 42 U.S.C. § 1983] that is plausible on its 15 face.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570).2 16 “[P]rison officials have a duty to protect prisoners from violence at the hands of 17 other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal quotation 18 marks, ellipsis, and citation omitted). If an inmate has been assaulted by a fellow inmate, 19 a prison official can be held liable under the Eighth Amendment so long as Plaintiff 20 demonstrates that the deprivation is sufficiently serious, id. at 834 (citing Wilson v. 21 Seiter, 501 U.S. 294, 298 (1991)), and that the prison official was deliberately indifferent 22 to the risk. Id. at 837. In addition, “deliberate indifference to a prisoner’s serious illness 23 or injury states a cause of action under § 1983.” Estelle v. Gamble, 429 U.S. 97, 105 24 (1976). 25 /// 26 /// 27 2 28 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). I:\Everyone\_EFILE-PROSE\LAB\13cv3117-grt-IFP-dsm-def&serve.wpd 6 13cv3117 LAB (BLM) 1 Accordingly, the Court finds Plaintiff is entitled to U.S. Marshal service upon 2 Defendants Neotti, Stout, Dominguez, Savala, Hodge, and the CDCR on his behalf.3 See 3 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and 4 perform all duties in [IFP] cases.”); FED.R.CIV.P. 4(c)(3) (“[T]he court may order that 5 service be made by a United States marshal or deputy marshal . . . if the plaintiff is 6 authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 7 III. CONCLUSION AND ORDER 8 Good cause appearing, IT IS HEREBY ORDERED that: 9 1. 10 Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2) is GRANTED. 2. 11 The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s 12 prison trust account the initial filing fee assessed in this Order, and shall forward the 13 remainder of the $350 filing fee owed by collecting monthly payments from Plaintiff’s 14 account in an amount equal to twenty percent (20%) of the preceding month’s income 15 and shall forward payments to the Clerk of the Court each time the amount in the account 16 exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE 17 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 18 ACTION. 19 /// 20 3 21 22 23 24 25 26 27 28 Plaintiff must, of course, identify the persons he currently lists only as “John Does,” by their true names and substitute those individual persons by amending his Complaint to identify each individual party before the United States Marshal will be ordered and able to execute service upon any of them. See Aviles v. Village of Bedford Park, 160 F.R.D. 565, 567 (1995) (Doe defendants must be identified and served within 120 days of the commencement of the action against them); FED.R.CIV.P. 15(c)(1)(C) & 4(m). Generally, Doe pleading is disfavored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). And when the plaintiff proceeds IFP, it is in most instances impossible for the United States Marshal to serve a summons and complaint upon a party identified only as a Doe. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (in order to properly effect service under Rule 4 in an IFP case, the plaintiff is required to “furnish the information necessary to identify the defendant.”). However, the Court will not dismiss Plaintiff’s claims against the Doe Defendants at this time because where the identity of an alleged party is not known prior to filing of an action, Ninth Circuit authority provides that the plaintiff be given an opportunity to pursue appropriate discovery to identify the unknown Does, unless it is clear that discovery would not uncover their identities, or that his Complaint should be dismissed for other reasons. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie, 629 F.2d at 642). I:\Everyone\_EFILE-PROSE\LAB\13cv3117-grt-IFP-dsm-def&serve.wpd 7 13cv3117 LAB (BLM) 1 3. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey 2 A. Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 3 942883, Sacramento, California, 94283-0001. 4 IT IS FURTHER ORDERED that: 5 4. 6 7 Plaintiff’s Complaint is DISMISSED without prejudice for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b) as to Defendant Wagner. 5. The Clerk shall issue a summons as to Plaintiff’s Complaint (ECF Doc. No. 8 1) upon Defendants NEOTTI, STOUT, DOMINGUEZ, SAVALA, HODGE and the 9 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION and 10 shall and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each of 11 them. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order 12 and a certified copy of his Complaint (ECF Doc. No. 1) and the summons so that he may 13 serve each Defendant named in the summons. Upon receipt of this “IFP Package,” 14 Plaintiff is directed to complete the Form 285s as completely and accurately as possible, 15 and to return them to the United States Marshal according to the instructions provided 16 by the Clerk in the letter accompanying his IFP package. Upon receipt, the U.S. Marshal 17 shall serve a copy of the Complaint and summons upon each Defendant as directed by 18 Plaintiff on the USM Form 285s. All costs of service shall be advanced by the United 19 States. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3). 20 6. Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint 21 within the time provided by the applicable provisions of Federal Rule of Civil Procedure 22 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted 23 to “waive the right to reply to any action brought by a prisoner confined in any jail, 24 prison, or other correctional facility under section 1983,” once the Court has conducted 25 its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, 26 has made a preliminary determination based on the face on the pleading alone that 27 Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is 28 required to respond). I:\Everyone\_EFILE-PROSE\LAB\13cv3117-grt-IFP-dsm-def&serve.wpd 8 13cv3117 LAB (BLM) 1 7. Plaintiff shall serve upon the Defendants or, if appearance has been entered 2 by counsel, upon Defendants’ counsel, a copy of every further pleading or other 3 document submitted for consideration of the Court. Plaintiff shall include with the 4 original paper to be filed with the Clerk of the Court a certificate stating the manner in 5 which a true and correct copy of any document was served on Defendants, or counsel for 6 Defendants, and the date of service. Any paper received by the Court which has not been 7 filed with the Clerk or which fails to include a Certificate of Service will be disregarded. 8 9 DATED: May 7, 2014 10 11 HONORABLE LARRY ALAN BURNS United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I:\Everyone\_EFILE-PROSE\LAB\13cv3117-grt-IFP-dsm-def&serve.wpd 9 13cv3117 LAB (BLM)
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