Goodlow v. Camacho ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IVAN F. GOODLOW, Case No.: 3:20-cv-02038-AJB-AGS CDCR #AX-3970, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 [ECF No. 2]; AND (2) DISMISSING CAMACHO, Correctional Officer; CLAIMS AS FRIVOLOUS 16 SIGALA, Correctional Officer; SALAS, PURSUANT TO 28 U.S.C.9 17 Correctional Officer; SERGEANT § 1915(e)(2) AND § 1915A(b)(1); AND GONZALEZ, Correctional Sergeant; (3) DIRECTING USMS TO EFFECT 18 KELLY, Nurse; MARIN, Correctional SERVICE ON REMAINING 19 Officer; SERGEANT KEENER, DEFENDANTS Correctional Sergeant; DR. GOYAL, 20 Doctor; HERNANDEZ, Correctional 21 Officer, 22 Defendant. 23 24 Ivan Goodlow (“Plaintiff”), an inmate currently incarcerated at Kern Valley State 25 Prison (“KVSP”), has filed a civil rights action (“Compl.”) pursuant to 42 U.S.C. § 1983. 26 (ECF No. 1.) Plaintiff claims his constitutional rights were violated when he was 27 previously housed at the Richard J. Donovan Correctional Facility (“RJD”) in 2018. See 28 Compl. at 1-11. Plaintiff has also filed a Motion to Proceed In Forma Pauperis (“IFP”) 1 pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.) 2 I. Motion to Proceed IFP 3 All parties instituting any civil action, suit or proceeding in a district court of the 4 United States, except an application for writ of habeas corpus, must pay a filing fee of 5 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 6 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 7 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 8 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 9 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 10 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 11 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 12 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 13 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 14 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 15 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 16 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 17 trust account statement, the Court assesses an initial payment of 20% of (a) the average 18 monthly deposits in the account for the past six months, or (b) the average monthly 19 balance in the account for the past six months, whichever is greater, unless the prisoner 20 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 21 custody of the prisoner then collects subsequent payments, assessed at 20% of the 22 preceding month’s income, in any month in which his account exceeds $10, and forwards 23 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 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 Bruce, 136 S. Ct. at 629. 2 In support of his request to proceed IFP, Plaintiff has submitted a copy of his 3 CDCR Inmate Statement Report. See ECF No. 2 at 3; 28 U.S.C. § 1915(a)(2); S.D. Cal. 4 CivLR 3.2; Andrews, 398 F.3d at 1119. This document shows Plaintiff carried an average 5 monthly balance of $49.27, maintained $23.33 in average monthly deposits to his trust 6 account for the 6-months preceding the filing of this action, and had an available balance 7 of $10.00 to his credit at the time of filing. 8 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 9 assesses his initial partial filing fee to be $9.85 pursuant to 28 U.S.C. § 1915(b)(1). The 10 Court further directs the Secretary of the CDCR, or her designee, to collect this initial 11 filing fee only if sufficient funds are available in Plaintiff’s account at the time this Order 12 is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 13 prohibited from bringing a civil action or appealing a civil action or criminal judgment 14 for the reason that the prisoner has no assets and no means by which to pay the initial 15 partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 16 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case 17 based solely on a “failure to pay ... due to the lack of funds available to him when 18 payment is ordered.”). The remaining balance of the $350 total fee owed in this case must 19 be collected by the agency having custody of the prisoner and forwarded to the Clerk of 20 the Court pursuant to 28 U.S.C. § 1915(b)(2). 21 II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A 22 A. Standard of Review 23 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 24 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 25 statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of 26 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 27 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 28 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 1 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 2 the targets of frivolous or malicious suits need not bear the expense of responding.’” 3 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted). 4 “The standard for determining whether a plaintiff has failed to state a claim upon 5 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 6 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 7 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 8 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 9 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 10 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 11 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 13 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 14 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 15 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 16 relief [is] ... a context-specific task that requires the reviewing court to draw on its 17 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 18 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 19 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 20 (9th Cir. 2009). 21 B. Plaintiff’s Factual Allegations 22 On January 26, 2018, Plaintiff was escorted back to his cell by Correctional 23 Officers Camacho and Jackson2. (See Compl. at 5.) However, before they arrived at 24 Plaintiff’s cell, Camacho was “guiding” Plaintiff with “handcuffs compressed to 25 [Plaintiff’s] wrist behind [his] back” when Camacho “decided to put [Plaintiff] in the 26 27 28 1 shower.” (Id.) Before Plaintiff was put in the shower, he told Camacho and Jackson 2 “I’m tired of you racist C/Os.” (Id.) “Out of nowhere,” Camacho attempted to get 3 “momentum with moving [Plaintiff] around roughly before instantaneously slamming 4 [Plaintiff] on the ground with severe pressure on [his] face.” (Id.) Plaintiff claims 5 Camacho “slam[ed] [him] on [his] face using excessive force” and began “punching 6 [him] maliciously in the face.” (Id.) 7 Camacho pressed the alarm button and “several officers come in jumping on top of 8 [Plaintiff]” with more force than needed to hold Plaintiff to the ground. (Id.) 9 Correctional Officer Sigala “punched [Plaintiff] in the mouth,” put a “spit mask” over 10 Plaintiff’s face choking him and causing him to “gag for air.” (Id.) Plaintiff claims 11 Sigala told him “fucking noose now!” (Id.) 12 Correctional Officer Marin began “kicking [Plaintiff] violently in [his] left rib 13 twice.” (Id. at 6.) There are approximately five correctional officers surrounding 14 Plaintiff when Sergeant Gonzalez “kicks [Plaintiff] in the stomach” before he was lifted 15 to his feet by Sigala and Marin. (Id.) Plaintiff alleges Sigala and Marin walked him out 16 of the building at which time Correctional Officer Salas “punch[ed]” him in his ribs. 17 (Id.) 18 Plaintiff claims that as he was told to face the wall, Registered Nurse Kelly said, 19 “no marks, he’s fine” with a “smirk on her face.” (Id.) Kelly also noted “no marks” in 20 her paperwork. (Id.) 21 Plaintiff “stayed in a cage for about 3 hours.” (Id. at 7.) Plaintiff claims he asked 22 Correctional Officer Hernandez to loosen his handcuffs because his “circulation was 23 being cut off” and his hands were becoming numb. (Id.) However, Plaintiff alleges 24 Hernandez and Correctional Officer Lopez3 laughed at his request to loosen his 25 handcuffs. (See id.) 26 27 28 1 Sergeant Keener told Plaintiff he was being charged with disciplinary violations 2 and placed him in administrative segregation (“ad-seg”). (See id.) Keener told 3 Hernandez to “feed him with a tray” but Hernandez told the inmate who was distributing 4 the dinner trays to not give Plaintiff his food. (Id.) 5 On January 29 or 30, 2018, Plaintiff was taken to the “B yard ad-seg office” to 6 speak to Correctional Officer Wilburn and Correctional Officer Rodriguez4 regarding his 7 administrative grievance Plaintiff submitted pertaining to the excessive force allegations. 8 (Id. at 8.) A nurse also came to the office and noted that Plaintiff had “sore ribs” and an 9 “abrasion on [his] lip.” (Id.) The following week, Sergeant Smith5 asked Plaintiff about 10 his excessive force claims. (See id.) However, Plaintiff “felt a bad, uneasy, sneaky, eerie 11 aura” about Smith. (Id. at 9.) 12 In February of 2018, Plaintiff was examined by Doctor Goyal regarding his “sore 13 left rib.” (Id. at 10.) Goyal “approved” Plaintiff receiving an x-ray but Plaintiff 14 “specifically asked for an MRI.” (Id.) Goyal also gave Plaintiff a prescription for 15 Ibuprofen. (See id.) Plaintiff had x-rays taken and a week later when he was again 16 examined by Goyal, he asked for the results. (See id.) Plaintiff claims Goyal “became 17 evasive” and did not want to “go into full detail.” (Id.) Plaintiff told Goyal that the 18 Ibuprofen was “not working” to alleviate his pain. (Id.) 19 At the end of February, Plaintiff was transferred to California State Prison – Los 20 Angeles County (“CSP-LAC”) which is located in Lancaster, California. (See id. at 11.) 21 Plaintiff alleges he was still “in pain” from the alleged excessive force incident. (Id.) 22 Plaintiff was seen by Doctor Hernandez regarding his “sore rib” and the numbness he 23 was experiencing in his hand due to the handcuffs. (Id.) However, Hernandez would not 24 approve Plaintiff to have an MRI. (See id.) 25 26 27 4 Neither Wilburn or Rodriquez are named Defendants. 28 1 On April 25, 2018, Plaintiff was transferred to KVSP. Plaintiff alleges that he filed 2 an administrative grievance claiming that African American inmates were not getting a 3 proportional number of inmate jobs. (See id.) Plaintiff claims that as soon as he arrived 4 at KVSP, “they started discriminating on me, because I’m a young looking, articulate, 5 African American.” (Id.) He claims that a majority of the “Mexican White correctional 6 officers always talked to [him] aggressively, with hatred, an evil aura.” (Id.) 7 Plaintiff seeks injunctive relief, $100,000 in compensatory damages, $5,000 in 8 punitive damages and “$30,000 for all the punches and kicks I took.” (Id. at 18.) 9 C. Duplicative claims 10 As an initial matter, Plaintiff acknowledges that he had brought the same action 11 against the same defendants in Goodlow v. Camacho, et al., S.D. Civil Case No. 3:18-cv- 12 0709-CAB-MDD (“Goodlow I”). A court “‘may take notice of proceedings in other 13 courts, both within and without the federal judicial system, if those proceedings have a 14 direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 15 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). 16 In Goodlow I, Plaintiff’s Eighth and Fourteenth Amendment claims against 17 Sergeant Keener were dismissed for failing to state a claim and ultimately without leave 18 to amend. (See Goodlow I, ECF No. 45, Order Adopting Report and Recommendation 19 Granting Defendants’ partial Motion to Dismiss; ECF No. 54, Order Denying Motion to 20 Amend Fourteenth Amendment claim and Ordering Case to Proceed.) 21 In addition, Defendants Camacho, Salas, Sigala and Marin filed a summary 22 judgment motion as to the claims against them on the ground that Plaintiff had failed to 23 properly exhaust his administrative grievances pursuant to 42 U.S.C. § 1997e(a). (See 24 Goodlow I, ECF No. 69.) Defendants Gonzalez, Kelly, Goyal, and Hernandez were 25 never properly served in Goodlow I. (See id. at 2.) United States District Judge Cathy 26 Ann Bencivengo granted Defendants Camacho, Salas, Sigala and Marin’s motion finding 27 that Plaintiff had exhausted these claims after he filed his action. (See Goodlow I, ECF 28 No. 30 at 29-30.) However, Plaintiff was informed that he “may bring these now 1 exhausted claims in a new and separate civil action so long as he does so within the 2 applicable statute of limitations.” (Id. at 30.) 3 Here, the Court finds that Plaintiff may bring this action as to all the named 4 Defendants with the exception of Defendant Keener. The claims against this Defendant 5 were litigated in the previous action and were dismissed on the merits rather than due to a 6 failure to exhaust. A prisoner’s complaint is considered frivolous if it “merely repeats 7 pending or previously litigated claims.” Cato v. United States, 70 F.3d 1103, 1105 n.2 8 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal quotations 9 omitted). Therefore, because Plaintiff already filed an action with identical claims 10 presented in the instant action against the Defendant Keener, the Court must dismiss the 11 duplicative claims brought in this action pursuant to 28 U.S.C. § 1915(e) (2) & 12 1915A(b). See Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at 446. 13 D. Remaining Defendants 14 As for the remaining Defendants, the Court finds Plaintiff’s Complaint contains 15 “sufficient factual matter, accepted as true,” to state First and Eighth Amendment claims 16 for relief that are “plausible on its face,” Iqbal, 556 U.S. at 678, and therefore, sufficient 17 to survive the “low threshold” set for sua sponte screening pursuant to 28 U.S.C. 18 §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; 19 Hudson v. McMillian, 503 U.S. 1, 5, (1992) (unnecessary and wanton infliction of pain 20 violates the Cruel and Unusual Punishments Clause of the Eighth Amendment); Wilkins 21 v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (for claims arising out of the use of 22 excessive physical force, the issue is “whether force was applied in a good-faith effort to 23 maintain or restore discipline, or maliciously and sadistically to cause harm.”) (citing 24 Hudson, 503 U.S. at 7); Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (“In 25 order to prevail on an Eighth Amendment claim for inadequate medical care, a plaintiff 26 must show ‘deliberate indifference’ to his ‘serious medical needs.’”) (quoting Estelle v. 27 Gamble, 429 U.S. 97, 104 (1976)); id. (“Deliberate indifference ‘may appear when prison 28 officials deny, delay or intentionally interfere with medical treatment, or it may be shown 1 by the way in which prison physicians provide medical care.’”) (quoting Hutchinson v. 2 United States, 838 F.2d 390, 394 (9th Cir. 1988)) Rhodes v. Robinson, 408 F.3d 559, 3 567-68 (9th Cir. 2005) (“Within the prison context, a viable claim of First Amendment 4 retaliation entails five basic elements: (1) An assertion that a state actor took some 5 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and 6 that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) 7 the action did not reasonably advance a legitimate correctional goal.”). 8 Therefore, the Court will direct the U.S. Marshal to effect service of summons 9 Plaintiff’s Complaint on his behalf.6 See 28 U.S.C. § 1915(d) (“The officers of the court 10 shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 11 4(c)(3) (“[T]he court may order that service be made by a United States marshal or 12 deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis under 28 13 U.S.C. § 1915.”). 14 III. Conclusion and Order 15 For the reasons explained, the Court: 16 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 17 (ECF No. 2). 18 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 19 Plaintiff’s trust account the $9.85 initial filing fee assessed, if those funds are available at 20 the time this Order is executed, and to forward whatever balance remains of the full $350 21 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding 22 month’s income to the Clerk of the Court each time the amount in Plaintiff’s account 23 exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE 24 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 25 26 27 6 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. 28 1 ACTION. 2 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 3 Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 4 4. DISMISSES all claims against Defendant Keener as frivolous pursuant to 5 action pursuant to 28 U.S.C. § 1915(e) (2) & 1915A(b) and without leave to amend. 6 5. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 7 No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each 8 remaining Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of 9 this Order, certified copies of his Complaint, and the summons so that he may serve the 10 Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the USM Form 11 285s as completely and accurately as possible, include an address where each named 12 Defendant may be found and/or subject to service pursuant to S.D. Cal. CivLR 4.1c., and 13 return them to the United States Marshal according to the instructions the Clerk provides 14 in the letter accompanying his IFP Package. 15 6. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 16 upon the Defendants as directed by Plaintiff on the USM Form 285s provided to him. All 17 costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. 18 R. Civ. P. 4(c)(3). 19 7. ORDERS Defendants, once they have been served, to reply to Plaintiff’s 20 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 21 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be 22 permitted to “waive the right to reply to any action brought by a prisoner confined in any 23 jail, prison, or other correctional facility under section 1983,” once the Court has 24 conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), 25 and thus, has made a preliminary determination based on the face on the pleading alone 26 that Plaintiff has a “reasonable opportunity to prevail on the merits,” the Defendants are 27 required to respond). 28 / / / 1 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 2 ||serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’ 3 ||counsel, a copy of every further pleading, motion, or other document submitted for the 4 ||Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 5 || original document he seeks to file with the Clerk of the Court, a certificate stating the 6 || manner in which a true and correct copy of that document has been was served on 7 Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any 8 document received by the Court which has not been properly filed with the Clerk or 9 || which fails to include a Certificate of Service upon the Defendants, or their counsel, may 10 || be disregarded. 11 IT IS SO ORDERED. 12 13 ||Dated: October 30, 2020 © □ 14 Hon. Anthony J.Battaglia 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 Il oo