Coolidge v. Madden ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DOMINIC COOLIDGE, Case No.: 3:20-cv-01317-AJB-MSB CDCR #BC-5720, 12 ORDER: Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 [ECF No. 2] RAYMOND MADDEN, Warden; 16 J. SALCIDO, Chief Disciplinary Officer, AND 17 Defendants. 2) DISMISSING COMPLAINT FOR 18 FAILING TO STATE A CLAIM 19 PURSUANT TO Fed. R. Civ. P. 8(a)(1), (2), 20 28 U.S.C. § 1915(e)(2)(B)(ii) 21 AND § 1915A(b)(1) 22 23 Plaintiff Dominic Coolidge, incarcerated at Centinela State Prison (“CEN”) located 24 in Imperial, California, is proceeding pro se in this case with a civil rights Complaint 25 (“Compl.”) filed pursuant to 42 U.S.C. § 1983 (ECF No. 1). 26 Plaintiff has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a); 27 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 28 U.S.C. § 1915(a) (ECF No. 2). 1 I. Motion to Proceed IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 8 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 9 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 10 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 11 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly 18 balance in the account for the past six months, whichever is greater, unless the prisoner 19 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 20 custody of the prisoner then collects subsequent payments, assessed at 20% of the 21 preceding month’s income, in any month in which his account exceeds $10, and forwards 22 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 23 Bruce, 136 S. Ct. at 629. 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. June 1, 2016). The additional $50 administrative fee does 28 1 In support of his Motion to Proceed IFP, Plaintiff has submitted a CEN Prison 2 Certificate and copy of his CDCR Inmate Statement Report (ECF No. 4). See also 28 3 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These documents 4 show Plaintiff had only $.01 to his credit at the time of filing. See ECF No. 4 at 1, 3. 5 Based on this accounting, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF 6 No. 2) and assesses no initial partial filing fee. See 28 U.S.C. § 1915(b)(4) (providing that 7 “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a 8 civil action or criminal judgment for the reason that the prisoner has no assets and no 9 means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 10 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 11 dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of 12 funds available to him when payment is ordered.”). The Court directs the Secretary of the 13 California Department of Corrections and Rehabilitation (“CDCR”), or his designee, to 14 collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and 15 forward them to the Clerk of the Court pursuant to the installment payment provisions set 16 forth in 28 U.S.C. § 1915(b)(1). 17 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A 18 A. Standard of Review 19 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a 20 preliminary screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 21 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 22 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 23 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 24 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 25 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 26 the targets of frivolous or malicious suits need not bear the expense of responding.’” 27 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 28 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 4 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 5 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 7 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 8 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 9 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 11 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 12 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 13 relief [is] ... a context-specific task that requires the reviewing court to draw on its 14 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 15 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 16 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 17 (9th Cir. 2009). 18 B. 42 U.S.C. § 1983 19 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 20 elements: (1) that a right secured by the Constitution or laws of the United States was 21 violated, and (2) that the alleged violation was committed by a person acting under the 22 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 23 1035-36 (9th Cir. 2015). 24 C. Discussion 25 As currently presented, Plaintiff’s Complaint fails to comply with Federal Rule of 26 Civil Procedure 8 and fails to state a claim upon which relief may be granted. See Iqbal, 27 556 U.S. at 677-78; 28 U.S.C. § 1915(e)(2)(B)(ii), § 1915A(b)(1). This is because 28 Plaintiff’s Complaint contains no factual allegations whatsoever. He identifies Warden 1 Madden and Chief Disciplinary Officer Salcido as the sole Defendants, but he does not 2 say what either of them did, failed to do, or how they injured him. See Compl. at 1‒2. In 3 the “Causes of Action” section of his pleading, Plaintiff invokes his rights to “due 4 process” and to be free from “cruel and unusual punishment,” id. at 3; but where he is 5 asked to include facts explaining what each Defendant did to violate those rights, he 6 simply asks the Court to read his exhibits. Id. 7 This type of submission falls far short of stating a plausible claim for relief. See 8 Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 9 “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and 10 plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), and that “each allegation must be 11 simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). See Iqbal, 556 U.S. at 677-78. In 12 addition to the grounds for sua sponte dismissal set out in § 1915(e)(2)(B) and 13 § 1915A(b), the district court may also dismiss a complaint for failure to comply with 14 Rule 8 if it fails to provide the defendant fair notice of the wrongs allegedly committed. 15 See McHenry v. Renne, 84 F.3d 1172, 1178–80 (9th Cir. 1996). “Rule 8 marks a notable 16 and generous departure from the hyper-technical, code pleading regime of a prior era, but 17 it does not unlock the doors of discovery for a plaintiff armed with nothing more than 18 conclusions.” Iqbal, 556 U.S. at 678‒79. 19 The court “ha[s] an obligation where the petitioner is pro se, particularly in civil 20 rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of 21 any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. 22 Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)); however, it may not “supply essential 23 elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of 24 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Even pro se litigants must “allege with at least 25 some degree of particularity overt acts which defendants engaged in” in order to state a 26 claim. Jones v. Comm’ty Redev. Agency of City of Los Angeles, 733 F.2d 646, 649 (9th 27 Cir. 1984). Complaints like the one Plaintiff has filed, which “tender [only] ‘naked 28 assertion[s]’ devoid of ‘further factual enhancement’” do not suffice. Iqbal, 556 U.S. at 1 678 (quoting Twombly, 550 U.S. at 557). Legal conclusions, like “due process” and 2 “cruel and unusual punishment” see Compl. at 3, “can provide the framework of a 3 complaint, [but] they must be supported by factual allegations,” lest the Plaintiff face 4 dismissal. Id. 5 And “[w]hile ‘much liberality is allowed in construing pro se complaints, a pro se 6 litigant cannot simply dump a stack of exhibits on the court and expect the court to sift 7 through them to determine if some nugget is buried somewhere in that mountain of 8 papers, waiting to be unearthed and refined into a cognizable claim.’” Thomas v. 9 Donovan, No. 3:19-CV-02181-JAH-RBB, 2020 WL 5106663, at *5 (S.D. Cal. Aug. 28, 10 2020) (quoting Samtani v. City of Laredo, 274 F. Supp. 3d 695, at *2 (S.D. Texas 11 2017)). “The Court will not comb through attached exhibits seeking to determine whether 12 a claim possibly could have been stated where the pleading itself does not state a claim. 13 In short, [Plaintiff] must state a claim, not merely attach exhibits.” Stewart v. Nevada, 14 No. 2:09-CV-01063, 2011 WL 588485, at *2 (D. Nev. Feb. 9, 2011). 15 Accordingly, the Court DISMISSES Plaintiff’s Complaint sua sponte pursuant to 16 Fed. R. Civ. P. 8(a)(1), (2) and 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) for failing to 17 state a claim upon which relief can be granted, but will give him the opportunity to fix his 18 pleading deficiencies. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (“[A] 19 district court should grant leave to amend even if no request to amend the pleading was 20 made, unless it determines that the pleading could not possibly be cured by the allegation 21 of other facts.”) (citation omitted); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 22 1995) (“A pro se litigant must be given leave to amend his or her complaint, and some 23 notice of its deficiencies, unless it is absolutely clear that the deficiencies of the 24 complaint could not be cured by amendment.” (citation omitted). 25 III. Conclusion and Orders 26 For the reasons discussed, the Court: 27 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 28 (ECF No. 2). 1 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 2 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 3 monthly payments from his account in an amount equal to twenty percent (20%) of the 4 preceding month’s income and forwarding those payments to the Clerk of the Court each 5 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). 6 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 7 ASSIGNED TO THIS ACTION. 8 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph 9 Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 10 4. DISMISSES Plaintiff’s Complaint in its entirety for failing to comply with 11 the Federal Rule of Civil Procedure 8 and for failing to state a claim upon which relief 12 may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 13 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 14 which to file an Amended Complaint which cures the deficiencies of pleading noted. 15 Plaintiff’s Amended Complaint must be complete by itself without reference to his 16 original pleading. Defendants not named and any claim not re-alleged in his Amended 17 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 18 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 19 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 20 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 21 amended pleading may be “considered waived if not repled.”). 22 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 23 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to 24 state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 25 and 1915A(b), and his failure to prosecute in compliance with a court order requiring 26 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 27 not take advantage of the opportunity to fix his complaint, a district court may convert the 28 dismissal of the complaint into dismissal of the entire action.”). 1 6. DIRECTS the Clerk of Court to mail Plaintiff a blank copy of the Court’s 2 approved form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for his use in 3 ||amending. Should Plaintiff choose to amend, he must title his pleading as his Amended 4 || Complaint and include Civil Case No. 3:20-cv-01317-AJB-MSB in its caption. 5 IT IS SO ORDERED. 6 Dated: September 29, 2020 , 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8