Guerrero v. Moore ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CARLOS GUERRERO, Case No.: 3:20-cv-01315-GPC-BGS CDCR #P-38978, 12 ORDER Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 (ECF No. 2) T. MOORE, Correctional Officer, 16 Defendant. 2) DISMISSING CLAIM PURSUANT 17 TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b) 18 19 AND 20 3) DIRECTING U.S. MARSHAL TO 21 EFFECT SERVICE UPON DEFENDANT PURSUANT TO 22 28 U.S.C. § 1915(d) AND 23 Fed. R. Civ. P. 4(c)(3) 24 25 Plaintiff Carlos Guerrero, incarcerated at the Richard J. Donovan Correctional 26 Facility (“RJD”) in San Diego, California, has filed a pro se civil rights Complaint pursuant 27 42 U.S.C. § 1983. See Compl., ECF No. 1. Plaintiff claims Correctional Officer Moore 28 refused his request for mental health services when he complained of suicidal thoughts. 1 See id. at 5. Plaintiff also claims Moore retaliated against him when he threatened to file a 2 grievance related to this incident, and later destroyed his personal property. Id. at 6, 7. 3 Plaintiff seeks $495,000 in compensatory damages and $50,000 in punitive damages. Id. 4 at 9. 5 Plaintiff did not prepay the $400 civil filing fee required by 28 U.S.C. Section 6 1914(a) at the time of filing and has instead filed a Motion to Proceed In Forma Pauperis 7 (“IFP”) pursuant to 28 U.S.C. Section 1915(a). See ECF No. 2. 8 I. Motion to Proceed In Forma Pauperis 9 All parties instituting any civil action, suit or proceeding in a district court of the 10 United States, except an application for writ of habeas corpus, must pay a filing fee of 11 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 12 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 13 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 14 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 15 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 16 Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 17 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 18 § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 19 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 20 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 21 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 22 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 23 trust account statement, the Court assesses an initial payment of 20% of (a) the average 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Oct. 1, 2019)). The additional $50 administrative fee does 28 1 monthly deposits in the account for the past six months, or (b) the average monthly balance 2 in the account for the past six months, whichever is greater, unless the prisoner has no 3 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 4 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 5 month’s income, in any month in which his account exceeds $10, and forwards those 6 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 7 136 S. Ct. at 629. 8 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 9 account statement pursuant to 28 U.S.C. §1915(a)(2) and S.D. Cal. Civ. L.R. 3.2. Andrews, 10 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account activity, as well as the 11 attached prison certificate verifying his available balances. See ECF No. 3 at 1, 3-4. These 12 documents show that although he carried an average monthly balance of $156.19 and had 13 $179.17 in average monthly deposits to his trust account for the six months preceding the 14 filing of this action, Plaintiff had an available balance of just $5.00 at the time of filing. Id. 15 at 1, 3. 16 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 17 assesses a partial filing fee of $35.83 pursuant to 28 U.S.C. § 1915(b)(1). However, the 18 Court declines to impose that fee at this time because Plaintiff’s prison certificate indicates 19 he currently has “no means to pay it.” See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no 20 event shall a prisoner be prohibited from bringing a civil action or appealing a civil action 21 or criminal judgment for the reason that the prisoner has no assets and no means by which 22 to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 23 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 24 solely on a “failure to pay . . . due to the lack of funds available to him when payment is 25 ordered.”). Instead, the Court directs the Secretary of the CDCR, or his designee, to collect 26 the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and to forward them 27 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 28 U.S.C. § 1915(b)(1). 1 II. Sua Sponte Screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) 2 A. Standard of Review 3 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 4 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, 5 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 6 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 7 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 8 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 9 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 10 targets of frivolous or malicious suits need not bear the expense of responding.’” 11 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 12 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 13 “The standard for determining whether a plaintiff has failed to state a claim upon 14 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 15 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 16 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 17 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 18 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 19 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 20 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 21 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 22 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 23 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 24 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 25 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 26 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 27 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 28 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 1 B. Plaintiff’s Factual Allegations 2 On October 5, 2018, Plaintiff alleges he experienced “a mental breakdown” in his 3 cell. See Compl., at 3. Plaintiff claims he told Officer Moore he was “feeling suicidal” and 4 that he needed to see his “mental health treatment psychologist.” Id. Instead of sending him 5 to the prison’s mental health facility, Plaintiff alleges Moore refused because “he didn’t 6 want to do all of the inventory of [Plaintiff’s] property.” Id. Plaintiff claims he continued 7 to “insist[]” that Moore send him to get mental health treatment. Id. During this time, 8 Plaintiff claims he banged his head “hard on [the] wall and doors” due to an uncontrollable 9 “anger and anxiety attack,” which resulted in head injuries and emotional distress. Id. at 3, 10 5. After “suffering for an hour,” Plaintiff claims he “finally” told Moore was going to file 11 a grievance against him for putting him through such a “life-threatening situation.” Id. at 12 3. After he told Moore he was going to file a grievance, Moore initiated a “suicidal 13 protocol” for him. Id. However, before Moore made the call, Plaintiff claims he threatened 14 to “give away and destroy [his] property.” Id. at 6. 15 As a result of being taken to the suicide prevention unit, Plaintiff claims he was 16 unable to properly account for his property. Id. at 3. Months later, on January 9, 2019, 17 Plaintiff claims the property confiscated during the October incident was returned, but 18 much of it was missing or destroyed. Id. 19 C. Analysis 20 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 21 elements: (1) that a right secured by the Constitution or laws of the United States was 22 violated, and (2) that the alleged violation was committed by a person acting under the 23 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 24 1035-36 (9th Cir. 2015). 25 1. Property Deprivation Claim 26 Plaintiff seeks to hold Officer Moore liable in part for the wrongful loss and/or 27 destruction of some of his personal property, and invokes his right to due process under the 28 Fourteenth Amendment. See Compl. at 3. 1 Ordinarily, due process requires notice and an opportunity for some kind of hearing 2 before a person can be deprived of a significant property interest. See Sinaloa Lake Owners 3 Ass’n v. City of Simi Valley, 882 F.2d 1398, 1405 (9th Cir. 1989), overruled on other 4 grounds by Armendariz v. Penman, 75 F.3d 1311, 1324-25 (9th Cir. 1996). In the prison 5 context, however, “[n]either the negligent nor intentional deprivation of property states a 6 due process claim under [S]ection 1983 if the deprivation was random and unauthorized.” 7 Elzy v. Duran, No. 3:20-cv-0545-JAH (BLM), 2020 WL 3034796, at *4 (S.D. Cal. June 4, 8 2020) (collecting cases). When a state provides an adequate post-deprivation remedy, 9 through a state tort action for example, the existence of that remedy satisfies the 10 requirements of due process. See Zinermon v. Burch, 494 U.S. 113, 128 (1990) (“In some 11 circumstances, however, the Court has held that a statutory provision for a postdeprivation 12 hearing, or a common-law tort remedy for erroneous deprivation, satisfies due process.” 13 (citations omitted)). As the Ninth Circuit has recognized, California law provides such an 14 adequate remedy. See Barrett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. 15 Gov’t Code §§ 810-895). 16 Thus, even with the benefit of the liberal construction due to pro se complaints, 17 Plaintiff fails to allege an actionable deprivation of due process stemming from the 18 disappearance or destruction of his property. See Elzy, 2020 WL 3034796, at *5 (allegation 19 that correctional officer stole plaintiff’s personal property while plaintiff was in 20 administrative segregation failed to state a claim). Because Plaintiff claims Moore 21 wrongfully deprived him of personal property, any remedy he may have lies in state court 22 and his federal claim must be dismissed for failing to state a claim upon which § 1983 relief 23 may be granted. Id. (citing 28 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at 1126-27). As a 24 result, Plaintiff’s property deprivations claims must be dismissed sua sponte for failing to 25 state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2); 28 U.S.C. 26 § 1915A(b). 27 / / / 28 / / / 1 2. Remaining Claims 2 As to the remainder of Plaintiff’s claims, however, the Court finds his Complaint 3 contains First and Eighth Amendment allegations sufficient to survive the “low threshold” 4 set for sua sponte screening. See 28 U.S.C. §§ 1915(e)(2), 1915A(b); Wilhelm, 680 F.3d at 5 1123. See also Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (“Within the 6 prison context, a viable claim of First Amendment retaliation entails five basic elements: 7 (1) An assertion that a state actor took some adverse action against an inmate (2) because 8 of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 9 exercise of his First Amendment rights, and (5) the action did not reasonably advance a 10 legitimate correctional goal.”); Farmer v. Brennan, 511 U.S. 825, 837 (1994) (failure to 11 protect claims under the Eighth Amendment require a showing that “the official [knew] of 12 and disregard[ed] an excessive risk to inmate health or safety.”); see also Hutchinson v. 13 United States, 838 F.2d 390, 394 (9th Cir. 1988) (noting that deliberate indifference to a 14 serious medical need under the Eighth Amendment “may be manifested in two ways. It 15 may appear when prison officials deny, delay or intentionally interfere with medical 16 treatment, or it may be shown by the way in which prison physicians provide medical 17 care.”) (citing Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)). 18 Accordingly, the Court will direct U.S. Marshal service upon Correctional Officer 19 Moore on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue 20 and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) 21 (“[T]he court may order that service be made by a United States marshal or deputy marshal 22 ... if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 23 III. Conclusion and Orders 24 For the reasons discussed, the Court: 25 1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2). 26 2) DIRECTS the Secretary of the CDCR, or his designee, to collect from 27 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 28 payments from his account in an amount equal to twenty percent (20%) of the preceding 1 month’s income and forwarding those payments to the Clerk of the Court each time the 2 amount in the account exceeds $10 pursuant to 28 U.S.C. Section 1915(b)(2). ALL 3 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 4 ASSIGNED TO THIS ACTION. 5 3) DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, 6 Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883, 7 Sacramento, California, 94283-0001. 8 4) DISMISSES Plaintiff’s Fourteenth Amendment property deprivation claims 9 against Officer Moore sua sponte for failure to state a claim upon which relief may be 10 granted pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). 11 5) DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 12 1) upon Correctional Officer T. Moore and forward it to Plaintiff along with a blank U.S. 13 Marshal Form 285. In addition, the Clerk will provide Plaintiff with a certified copy of this 14 Order, a certified copy of his Complaint, and the summons so that he may serve Officer 15 Moore. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285 as 16 completely and accurately as possible, include an address where Officer Moore may be 17 served, see S.D. Cal. Civ. L.R. 4.1.c, and return it to the United States Marshal according 18 to the instructions the Clerk provides in the letter accompanying his IFP package. 19 6) ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 20 upon Officer Moore as directed by Plaintiff on the USM Form 285 provided to him. All 21 costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. 22 R. Civ. P. 4(c)(3); 23 7) ORDERS Officer T. Moore, once served, to reply to Plaintiff’s Complaint 24 within the time provided by the applicable provisions of Federal Rule of Civil Procedure 25 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to 26 “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or 27 other correctional facility under section 1983,” once the Court has conducted its sua sponte 28 screening pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and thus, has made a 1 || preliminary determination based on the face on the pleading alone that Plaintiff has a 2 || “reasonable opportunity to prevail on the merits,” defendant is required to respond); and 3 8) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 4 serve upon Officer Moore, or, if appearance has been entered by counsel, upon Defendant’s 5 ||counsel, a copy of every further pleading, motion, or other document submitted for the 6 ||Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 7 || original document he seeks to file with the Clerk of the Court, a certificate stating the 8 |}manner in which a true and correct copy of that document has been served on Defendant 9 ||Moore or Defendant’s counsel, and the date of that service. See S.D. Cal. Civ. L.R. 5.2. 10 || Any document received by the Court which has not been properly filed with the Clerk, or 11 || which fails to include a Certificate of Service upon Defendant Moore, may be disregarded. 12 IT ISSO ORDERED. 13 ||Dated: September 2, 2020 14 Hon. athe Coke 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 9