McCullock v. State of California ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT McCULLOCK, Case No.: 3:21-cv-0776-WQH-DEB CDCR #V-32182, 12 ORDER: Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 [ECF No. 2] STATE OF CALIFORNIA; DEP’T OF 16 CORRECTIONS AND AND 17 REHABILITATION; MARCUS POLLARD; KATHLEEN ALLISON; 2) DISMISSING COMPLAINT FOR 18 DOES 1-10. FAILING TO STATE A CLAIM 19 Defendants. PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) 20 21 22 Plaintiff, Robert McCullock, an inmate currently incarcerated at the Richard J. 23 Donovan Correctional Facility (“RJD”) located in San Diego, California has filed a civil 24 rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). In addition, Plaintiff has 25 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) 26 (ECF No. 2). 27 / / / 28 / / / 1 A. Plaintiff’s IFP Motion 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 who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 9 Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th 10 Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 11 § 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 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does 28 1 Plaintiff has submitted a certified copy of his inmate trust account statement 2 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. His trust account statement 3 indicates he has insufficient funds from which to pay a partial initial filing fee at this 4 time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 5 prohibited from bringing a civil action or appealing a civil action or criminal judgment 6 for the reason that the prisoner has no assets and no means by which to pay the initial 7 partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 8 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case 9 based solely on a “failure to pay . . . due to the lack of funds available to him when 10 payment is ordered.”). 11 Therefore, the Court grants Plaintiff leave to proceed IFP and directs the Secretary 12 for the California Department of Corrections and Rehabilitation (“CDCR”) to collect the 13 entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to 14 the Clerk of the Court pursuant to the installment payment provisions set forth in 28 15 U.S.C. § 1915(b)(1). See id. 16 B. Legal Standards for Screening Complaint Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 17 18 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 19 Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 20 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 21 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 22 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 23 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 24 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 25 the targets of frivolous or malicious suits need not bear the expense of responding.’” 26 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 27 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 28 / / / 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); Wilhelm, 680 F.3d at 1121. 10 1. 42 U.S.C. § 1983 11 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, 12 privileges, or immunities secured by the Constitution and laws” of the United States. 13 Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must 14 allege two essential elements: (1) that a right secured by the Constitution or laws of the 15 United States was violated, and (2) that the alleged violation was committed by a person 16 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of 17 Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 18 2. Rule 8 19 As an initial matter, the Court finds that Plaintiff’s Complaint fails to comply with 20 Rule 8. Rule 8 of the Federal Rules of Civil Procedure provides that in order to state a 21 claim for relief in a pleading it must contain “a short and plain statement of the grounds 22 for the court’s jurisdiction” and “a short and plain statement of the claim showing that the 23 pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1) & (2). See McHenry v. Renne, 84 F.3d 24 1172, 1178–80 (9th Cir. 1996). Plaintiff’s Complaint is essentially devoid of any factual 25 allegation as to any named Defendant. 26 / / / 27 / / / 28 / / / 1 3. Grievance procedures 2 Plaintiff claims his constitutional “right to petition the government for redress of 3 grievances” has been violated. (Compl. at 3.) Plaintiff further alleges that the “State of 4 California has and is thwarting all attempts to appeal any grievances of any wrongs, 5 abuses by its Department of Corrections and Rehabilitation.” (Id.) 6 However, an official’s allegedly improper processing of a prisoner’s grievances or 7 appeals, without more, does not serve as a sufficient basis for section 1983 liability. 8 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (prisoners do not have a “separate 9 constitutional entitlement to a specific prison grievance procedure.”) (citation omitted); 10 Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (due process not violated simply 11 because defendant fails properly to process grievances submitted for consideration); see 12 also Todd v. California Department of Corrections and Rehabilitation, 615 Fed. Appx. 13 415, 415 (9th Cir. 2015) (district court properly dismissed claim based on improper 14 “processing and handling of […] prison grievances,” since prisoners have no 15 “constitutional entitlement to a specific prison grievance procedure”) (citing Ramirez, 16 334 F.3d at 860) (quotation marks omitted); Shallowhorn v. Molina, 572 Fed. Appx. 545, 17 547 (9th Cir. 2014) (district court properly dismissed § 1983 claims against defendants 18 who “were only involved in the appeals process”) (citing Ramirez, 334 F.3d at 860); 19 Daniels v. Aguilera, No. 2:16-CV-00996-JAM-CKD P, 2018 WL 558658, at *1 (E.D. 20 Cal. Jan. 24, 2018), report and recommendation adopted sub nom. Daniels v. Aguillera, 21 No. 2:16-CV-00996-JAM-CKD P, 2018 WL 1763311 (E.D. Cal. Apr. 12, 2018) 22 (“Because there is no right to any particular grievance process, it is impossible for due 23 process to have been violated by ignoring or failing to properly process prison 24 grievances.”). Simply “‘[r]uling against a prisoner on an administrative complaint does 25 not cause or contribute to the violation.’” Ellington v. Clark, 2010 WL 3001427, at *2 26 (E.D. Cal. Jul. 29, 2010) (quoting George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007)). 27 For these reasons, the Court finds Plaintiff’s conclusory claims are insufficient to 28 state any plausible claim upon which § 1983 relief may be granted. See Iqbal, 556 U.S. at 1 678-79; 28 U.S.C. §§ 1915(e)(2)(b)(ii), 1915A(b)(1); Watison, 668 F.3d at 1112; 2 Wilhelm, 680 F.3d at 1121. 3 4. Individual Causation 4 Plaintiff names Marcus Pollard and Kathleen Allison as Defendants but there are 5 no specific allegations regarding what these Defendants are alleged to have done or failed 6 to do within the body of the Complaint. Plaintiff claims only that Allison, as Secretary 7 for the CDCR, is “legally responsible for the operations of CDCR.” (Compl. at 9.) As 8 for Pollard, Warden for RJD, he is alleged to be “legally responsible for the operations” 9 of RJD. (Id.) 10 There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. 11 Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). “Because vicarious liability is 12 inapplicable to ... § 1983 suits, [Plaintiff] must plead that each government-official 13 defendant, through the official’s own individual actions, has violated the Constitution.” 14 Iqbal, 556 at 676; see also Jones v. Community Redevelopment Agency of City of Los 15 Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at 16 least me degree of particularity overt acts which defendants engaged in” in order to state 17 a claim). 18 As currently pleaded, Plaintiff’s Complaint offers no factual detail from which the 19 Court might reasonably infer a plausible claim for relief based on a violation of any 20 constitutional right on the part of the Secretary of the CDCR or the Warden for RJD. 21 Fed. R. Civ. P. 8 “demands more than an unadorned, the-defendant-unlawfully-harmed- 22 me accusation,” and in order “[t]o survive a motion to dismiss, a complaint must contain 23 sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on 24 its face.’” Iqbal, 662 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 570). 25 A supervisory official may only be held liable under § 1983 if Plaintiff alleges his 26 “personal involvement in the constitutional deprivation, or … a sufficient causal 27 connection between the supervisor’s wrongful conduct and the constitutional violation.” 28 Keates v. Koile, 883 F.3d 1228, 1242-43 (9th Cir. 2018); Starr v. Baca, 652 F.3d 1202, 1 1207 (9th Cir. 2011). 2 Plaintiff makes no such allegations in his Complaint. Therefore, the Court sua 3 sponte dismisses Defendants Allison and Pollard based on Plaintiff’s failure to state a 4 plausible individual liability claim against them. See 28 U.S.C. § 1915(e)(2)(B)(ii) and 5 § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 6 5. CDCR 7 Plaintiff’s claims against the CDCR must also be dismissed. The CDCR is not a 8 “person” subject to suit under Section 1983 and it is entitled to immunity from suit for 9 monetary damages under the Eleventh Amendment. See Seminole Tribe of Fla. v. 10 Florida, 517 U.S. 44, 53-54 (1996); Groten v. California, 251 F.3d 844, 851 (9th Cir. 11 2001) (citing Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993)); see also 12 Dragasits v. California, No. 3:16-cv-01998-BEN-JLB, 2016 WL 6804947, at *3 (S.D. 13 Cal. Nov. 15, 2016) (“The State of California’s Department of Corrections and 14 Rehabilitation and any state prison, correctional agency, sub-division, or department 15 under its jurisdiction, are not ‘persons’ subject to suit under § 1983.” (citing Groten, 251 16 F.3d at 851)); Bridgeman v. Education Dep’t, No. 11-cv-0387-JLS-CAB, 2011 WL 17 2532413, at *1 (S.D. Cal. June 24, 2011) (dismissing claims against the “Education 18 Department” and the “Law Library” of RJD because they are not “persons” and are 19 immune from suit under the Eleventh Amendment). Accordingly, Plaintiff’s claims 20 against this Defendant are dismissed sua sponte for failure to state a plausible claim and 21 for seeking monetary relief against an immune defendant. See 28 U.S.C. 22 § 1915(e)(2)(B); 28 U.S.C. § 1915A(b). 23 6. Leave to Amend 24 A pro se litigant must be given leave to amend his or her complaint to state a claim 25 unless it is absolutely clear the deficiencies of the complaint cannot be cured by 26 amendment. See Lopez, 203 F.3d at 1130 (noting leave to amend should be granted when 27 a complaint is dismissed under 28 U.S.C. § 1915(e) “if it appears at all possible that the 28 plaintiff can correct the defect”). Therefore, while the Court finds Plaintiff’s Complaint 1 fails to state any claim upon which relief can be granted, it will provide him a chance to 2 fix the pleading deficiencies discussed in this Order. See Akhtar v. Mesa, 698 F.3d 1202, 3 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 4 C. Conclusion and Order 5 Good cause appearing, the Court: 6 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 7 (ECF No. 2). 8 2. DIRECTS the Secretary of the CDCR, or her designee, to collect from 9 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 10 monthly payments from his account in an amount equal to twenty percent (20%) of the 11 preceding month’s income and forwarding those payments to the Clerk of the Court each 12 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 13 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 14 ASSIGNED TO THIS ACTION. 15 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 16 Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 17 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 18 relief may be granted and for seeking money damages against immune defendant 19 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). as well as for failing to comply with 20 Fed.R.Civ.P. 8 and GRANTS him forty-five (45) days leave from the date of this Order 21 in which to file an Amended Complaint which cures all the deficiencies of pleading 22 noted. Plaintiff’s Amended Complaint must be complete in itself without reference to his 23 original pleading. Defendants not named and any claims not re-alleged in the Amended 24 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 25 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 26 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 27 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 28 amended pleading may be “considered waived if not repled.”). 1 If Plaintiff chooses to file an amended pleading, he must also comply with S.D. 2 ||CivLr 8.2(a). 3 5. Plaintiff's “Request for USM 285 Forms” [ECF No. 6] is DENIED as moot. 4 6. DIRECTS the Clerk of Court to mail to Plaintiff, together with this Order, a 5 || blank copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C. 6 ||§ 1983” for his use in amending. 7 IT IS SO ORDERED. 8 || Dated: May 13, 2021 BE: te Z. Ma 9 Hon, William Q. Hayes 10 United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28