(PC) Ortiz v. Hill ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORIO ORTIZ, JR., No. 2:19-cv-00583-CKD-P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATION 14 RICK HILL, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 19 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 I. Screening Requirement 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 10 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 11 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 12 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 13 Cir. 1989); Franklin, 745 F.2d at 1227. 14 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. When considering whether a complaint states a claim upon which relief can be granted, 23 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 24 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 25 U.S. 232, 236 (1974). 26 II. Allegations in the Complaint 27 The allegations in the complaint stem from plaintiff’s 2001 criminal convictions in two 28 separate cases that were ordered to be served consecutively. ECF No. 1 at 5. As part of these 1 criminal judgments, plaintiff was ordered to pay $200 in restitution in Case No. KA051285 and 2 $1,000 in restitution in Case No. KA052823. ECF No. 1 at 5. The CDCR has now started 3 deducting funds from plaintiff’s inmate trust account to pay the $1,000 in restitution ordered in 4 his second case. Id. According to plaintiff, the $1,000 restitution fine is not due and payable 5 “[u]ntil plaintiff’s 61 year to life [sentence from his first case] is complete.” Id. Plaintiff asserts 6 that deducting the $1,000 restitution from his prison trust account violates the Eighth Amendment 7 and the Due Process Clause of the Fourteenth Amendment. ECF No. 1 at 5, 13. 8 Plaintiff has named six prison officials at California State Prison-Folsom, including the 9 warden and administrative appeal examiners, as defendants in this action. However, plaintiff 10 does not identify how any named defendant was responsible for any of the deductions from 11 plaintiff’s inmate trust account connected to the restitution order. 12 By way of relief, plaintiff requests a refund of approximately $400 that was taken from his 13 prison trust account, attorney’s fees of $5,000 as a pro se litigant, an accounting by CDCR of 14 whether the restitution was actually paid to the victims, and a waiver of all fines since he is a life- 15 sentenced inmate. ECF No. 1 at 21. 16 III. Legal Standards 17 A claim for damages for an allegedly unconstitutional conviction or imprisonment, or for 18 other harm caused by actions whose unlawfulness would render a conviction or sentence invalid 19 is not cognizable under § 1983. Heck v. Humphrey, 512 U.S. 477, 487 (1994). A plaintiff must 20 prove that the conviction or sentence has been reversed on direct appeal, expunged by executive 21 order, declared invalid by a state tribunal authorized to make such determination, or called into 22 question by a federal court’s issuance of a writ of habeas corpus. Id. at 486-87. 23 IV. Analysis 24 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon 25 which relief can be granted under federal law. Plaintiff’s challenge to the $1,000 restitution 26 ordered in Case No. KA052823 was part of the criminal judgment issued by the state court. 27 Notably, plaintiff does not allege that the restitution portion of his judgment was unlawfully 28 imposed by the state court or was subsequently overturned on appeal. Plaintiff merely disagrees 1 with CDCR about when the restitution may be deducted from his prison trust account. Because 2 plaintiff is challenging the validity of the restitution aspect of his conviction and the conviction 3 has not been invalidated, his due process and Eighth Amendment claims are Heck barred. See 4 Perez v. Ducart, 2019 WL 3457841 at *3 (N.D. Cal. July 29, 2019) (stating that “[b]ecause 5 Plaintiff is challenging the validity of the restitution aspect of his conviction and the conviction 6 has not been invalidated, his due process claim is subject to the Heck bar.”); Garland v. Cate, 7 2013 WL 129298 at *4 (E.D. Cal. Jan. 9, 2013) (same). As a result, plaintiff’s complaint must be 8 dismissed. 9 V. Leave to Amend 10 If the court finds that a complaint should be dismissed for failure to state a claim, the court 11 has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126- 12 30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the 13 defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see 14 also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given 15 leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely 16 clear that the deficiencies of the complaint could not be cured by amendment.”) (citing Noll v. 17 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear 18 that a complaint cannot be cured by amendment, the court may dismiss without leave to amend. 19 Cato, 70 F.3d at 1005-06. 20 In this case, the undersigned recommends dismissing the complaint without leave to 21 amend. Here, amendment would be futile because the deficiencies identified above are not 22 curable in a manner that would lead to any cognizable claim for relief that is not Heck barred. If 23 plaintiff’s state court judgment in Case No. KA052823 is invalidated at any point, plaintiff may 24 file a new complaint. See Trimble v. City of Santa Rosa, 49 F.3d 583 (9th Cir. 1995). For all 25 these reasons, the undersigned recommends that this action be dismissed without leave to amend. 26 Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave to 27 amend when amendment would be futile.”). 28 ///// 1 VI. Plain Language Summary for Pro Se Party 2 The following information is meant to explain this order in plain English and is not 3 intended as legal advice. 4 The court has reviewed the allegations in your complaint and concluded that it does not 5 state a claim for relief. Allowing you to amend the complaint would be futile because it would 6 not fix the issues with the complaint identified in this order. As a result, it is recommended that 7 you not be granted leave to amend your complaint and that this civil action be closed. 8 If you disagree with this recommendation, you have 14 days to explain why it is not the 9 correct result. Label your explanation as “Objections to the Magistrate Judge’s Findings and 10 Recommendations.” 11 In accordance with the above, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. ) is granted. 13 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 14 shall be collected and paid in accordance with this court’s order to the Director of the California 15 Department of Corrections and Rehabilitation filed concurrently herewith. 16 3. The Clerk of Court randomly assign this matter to a district court judge. 17 IT IS FURTHER RECOMMENDED that plaintiff’s complaint be dismissed without leave 18 to amend for failing to state a claim. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 24 objections shall be served and filed within fourteen days after service of the objections. The 25 //// 26 //// 27 //// 28 //// 1 | parties are advised that failure to file objections within the specified time may waive the right to 2 || appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 || Dated: January 28, 2020 Pee a4 if / /, CAN fu fl. ay 4 CAROLYN K. DELANEY 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 12/orti0583.8(a)dismiss.docx 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28