Thurston v. Pollard ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANDERSON P. THURSTON, Case No. 21-CV-01578-BAS-BGS 12 Plaintiff, ORDER: 13 v. (1) GRANTING MOTION TO 14 MARCUS POLLARD, et al., PROCEED IN FORMA 15 Defendants. PAUPERIS (ECF No. 2); 16 (2) DISMISSING FOURTEENTH 17 AMENDMENT DUE PROCESS CLAIM FOR FAILURE TO 18 STATE A CLAIM (ECF No. 1); 19 AND 20 (3) DIRECTING USMS TO SERVE 21 DEFENDANTS WITH COMPLAINT 22 23 24 Plaintiff Anderson P. Thurston, currently incarcerated at the California Substance 25 Abuse Treatment Facility (“CSATF”), seeks by this action damages and injunctive relief 26 for alleged violations of the Eighth and Fourteenth Amendments of the U.S. Constitution, 27 pursuant to 42 U.S.C. § 1983. (See generally ECF No. 1, Compl.) Plaintiff proceeds pro 28 se. He did not prepay the $402.00 civil filing fee required by 28 U.S.C. Section 1914(a) at 1 the time of filing and has instead filed a Motion to Proceed In Forma Pauperis (“IFP”) 2 pursuant to 28 U.S.C. Section 1915(a). (See ECF No. 2.) 3 For the reasons stated below, the Court GRANTS Plaintiff’s IFP Motion (ECF No. 4 2); DISMISSES with prejudice Plaintiff’s “grievance procedure” claim brought pursuant 5 to the Fourteenth Amendment for failure to state a claim under 28 U.S.C. §§ 1915(e)(2) 6 and 1915A(b) (ECF No. 1); and DIRECTS the United States Marshal Service (“USMS”) 7 to effectuate service of the Complaint upon Defendants (ECF No. 1). 8 I. IFP Motion 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 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 12 prepay the entire fee only if they are granted leave to proceed IFP pursuant to 28 U.S.C. 13 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 14 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is 15 granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or 16 “installments.” Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 17 1182, 1185 (9th Cir. 2015). An inmate proceeding IFP is obligated to do so regardless of 18 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. 19 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 20 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 21 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 22 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 23 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 24 account statement, the Court assesses an initial payment of 20% of (a) the average monthly 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of 27 $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 not apply to persons granted leave 28 1 deposits in the account for the past six months, or (b) the average monthly balance in the 2 account for the past six months, whichever is greater, unless the prisoner has no assets. See 3 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the 4 prisoner then collects subsequent payments, assessed at 20% of the preceding month’s 5 income, in any month in which their account exceeds $10, and forwards those payments to 6 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. 7 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 Civ. L.R. 3.2. Andrews, 398 10 F.3d at 1119. (ECF No. 2.) This document shows that Plaintiff had an available balance 11 of only $4.50 at the time of filing. (See id.) 12 Therefore, the Court GRANTS Plaintiff’s IFP Motion (ECF No. 2) and declines to 13 impose an initial partial filing fee pursuant to 28 U.S.C. Section 1915(b)(1) because his 14 prison certificate indicates he may currently have “no means to pay it.” See 28 U.S.C. 15 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 16 civil action or appealing a civil action or criminal judgment for the reason that the prisoner 17 has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d 18 at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal 19 of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 20 available to [the]m when payment is ordered.”). Instead, the Court directs the Secretary of 21 the California Department of Corrections and Rehabilitation (“CDCR”), or her designee, 22 to collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and to 23 forward them to the Clerk of the Court pursuant to the installment payment provisions set 24 forth in 28 U.S.C. § 1915(b)(1). 25 26 27 28 1 II. Pre-Answer Screening 2 A. Background2 3 The Complaint arises out of Plaintiff’s incarceration at the Richard J. Donovan 4 Correctional Facility (“RJD”), during which Plaintiff alleges that he was housed in 5 conditions that were noncompliant with the requirements of the Americans with 6 Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101, et seq. (Compl. at pp. 9–10.) 7 Plaintiff further alleges that the process and manner by which RJD staff handled his 8 administrative complaints about the purportedly unconstitutional conditions of his 9 imprisonment violated his rights. 10 Specifically, Plaintiff was transferred to RJD on September 18, 2020. (Id. 9.) Upon 11 arrival, he was “escorted to C Facility, Building 11” in his “assigned wheelchair which was 12 wider than 32 inches.” (Id.) He was “ordered” to enter the cell by Correctional Officer 13 (“CO”) Segovia. (Id.) Plaintiff attempted to comply but was “unable to fit his wheelchair 14 into the cell” and the cell was “much too small to move around in even if it could fit inside.” 15 (Id.) Plaintiff asked CO Segovia to place him in an “ADA compliant cell.” (Id.) Plaintiff 16 alleges that, in response, CO Segovia “threatened” him with administrative segregation 17 (“ad-seg”) if he did not enter the cell. (Id.) Plaintiff alleges that he “exited his wheelchair 18 [and] crawled into the cell on his hands and knees” for fear of the repercussions of failing 19 to comply.3 (Id.) 20 According to Plaintiff, he suffered over the subsequent nine months injuries due to 21 “lack of his wheelchair use to access the sink [and] toilet facilities.” (Id.) In particular, 22 Plaintiff claims that his cell lacked “appropriately placed help bars[,]” which resulted in 23 Plaintiff being unable to “access the toilet in a reasonable [or] timely fashion” which caused 24 him to urinate and defecate on himself “many, many times.” (Id.) Plaintiff also 25 26 2 These facts are all taken from the Complaint. At this stage, the Court accepts all of Plaintiff’s factual allegations as true. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 27 3 Plaintiff alleges that at the time of his transfer to RJD, he was aware of an assertedly viral YouTube video that showed to RJD COs “savagely beating a wheelchair bound inmate.” (Compl. at p. 28 1 “struggle[ed] around the cell on his hands [and] knees to clean himself [and] the cell.” (Id.) 2 Plaintiff claims Defendant Pollard “failed to provide the training necessary to insure the 3 humane/constitutional and ADA compliant treatment of Plaintiff.” (Id.) 4 Plaintiff filed a “CDCR Form 1824 Request for Reasonable Accommodation 5 requesting a transfer” (“Form 1824”) to more appropriate housing in which he 6 “complain[ed] about the lack of ADA accommodations/size of the cell.” (Id.) The 7 grievance was heard by Defendants Anderson and Hodges on October 1, 2020, and was 8 subsequently denied on the asserted ground that Plaintiff already was “housed 9 appropriately in an ADA approved cell.” (Id.) Plaintiff alleges that there was no basis for 10 this denial. (Id.) Moreover, he “continued to suffer constant injuries from falls and suffer 11 the indignities associated with the inhumanity of being forced to live in 12 constitutionally/ADA inappropriate housing” because Defendants failed to provide the 13 accommodations he sought pursuant to his Form 1824. (Id. at 9-10.) Plaintiff appealed 14 the denial; Defendants B. Phillips and H. Mosely heard the appeal and affirmed the denial. 15 (See id. at 10.) 16 On January 3, 2021, Plaintiff filed another Form 1824 “requesting the same 17 reasonable accommodation of a transfer to another prison with ADA compliant housing, 18 complaining about the inability to access to the toilet facilities in the cell, the inability to 19 bring his wheelchair into the cell, the lack of properly placed help bars, inadequate bed 20 area space, and the injuries/inhumanities related to being housed” in these facilities. (Id.) 21 Defendant Phillips “affirmed the denial.” (Id.) 22 Plaintiff alleges that he met with an attorney in May of 2021, who in turn contacted 23 CDCR attorneys “to complain about Plaintiff’s unconstitutional housing.” (Id.) According 24 to Plaintiff, Defendant Anderson “admitted” at a meeting “to violating Plaintiff’s rights 25 [and] promised to transfer Plaintiff to proper housing.” (Id.) However, “Plaintiff was not 26 transferred until June 19, 2021.” (Id.) 27 The Complaint appears to lodge claims under the Eighth and Fourteenth 28 Amendments of the U.S. Constitution against Defendants. Plaintiff seeks injunctive relief, 1 $500,000 in compensatory damages, $500,000 in punitive damages, and “$1,000.00 for 2 every day [Plaintiff] spent in housing that was not ADA [compliant].” (Id. at 15.) 3 B. Legal Standard 4 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 5 answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). These provisions 6 require a court to dismiss sua sponte a complaint, or any portion of it, which is frivolous, 7 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 8 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 9 621 F.3d 1002, 1004 (9th Cir. 2010). “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 Section 1915(e)(2)(B)(ii) is the same as the Federal Rule 15 of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 16 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 17 Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the familiar 18 standard applied in the context of failure to state a claim under Federal Rule of Civil 19 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual 20 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 21 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 22 1121. 23 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 24 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 25 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 26 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 27 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 28 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 1 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 2 C. Analysis 3 1. Eighth Amendment Claims 4 “The Constitution ‘does not mandate comfortable prisons[.]’” Farmer v. Brennan, 5 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). 6 However, by that same token, neither does the Constitution “permit inhumane ones, and it 7 is now settled that ‘the treatment a prisoner receives in prison and the conditions under 8 which he is confined are subject to scrutiny under the Eighth Amendment[.]’” Id. (quoting 9 Helling v. McKinney, 509 U.S. 25, 35 (1991)); Morgan v. Morgensen, 465 F.3d 1041, 1045 10 (9th Cir. 2006) (“The Eighth Amendment’s prohibition against cruel and unusual 11 punishment protects prisoners not only from inhumane methods of punishment but also 12 from inhumane conditions of confinement.”) (citation omitted). 13 Prison officials have a duty to provide to inmates with, inter alia, adequate shelter, 14 sanitation, medical care, and personal safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 15 2000), but not every injury that a prisoner sustains while in prison is of constitutional 16 dimensions. Morgan, 465 F.3d at 1045. In order to maintain an Eighth Amendment claim, 17 an inmate must show that prison officials were deliberately indifferent to a substantial risk 18 of harm to his health or safety. See Thomas v. Ponder, 611 F.3d 1144, 1150–51 (9th Cir. 19 2010). 20 The Court is satisfied that Plaintiff’s Eighth Amendment claims are sufficiently 21 plead to survive the sua sponte pre-answer screening required under 28 U.S.C. 22 §§ 1915(e)(2) and 1915A(b). Plaintiff alleges that the ADA-noncompliant nature of his 23 cell created a substantial risk of, and did in fact cause, harm to his health, safety, and 24 sanitation. Plaintiff alleges that Defendants were aware of that substantial risk, including 25 through the formal grievance processes Plaintiff initiated pursuant Form 1824 and his 26 informal complaints to CO Segovia. Accordingly, at this pre-answer stage, the Court finds 27 that Plaintiff should be permitted to maintain his Eighth Amendment claims. However, 28 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative 1 of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may 2 choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). Thus, 3 this Order does not preclude the Court from later concluding that Plaintiff’s Eighth 4 Amendment claims are deficient as a matter of law. 5 2. Fourteenth Amendment Claim 6 On the face of his Complaint, Plaintiff also appears to allege that Defendants violated 7 his Fourteenth Amendment due process rights because the process pursuant to which 8 Defendants heard and adjudged Plaintiff’s grievances—instituted by his two Form 1824s— 9 was constitutionally inadequate. In particular, Plaintiff alleges that he was denied a “fair 10 hearing” because he was unable to personally participate in the grievance process and 11 because Defendants failed to perform a sufficient investigation into the merits of his claims, 12 namely, by failing to visit the cell, measure its dimensions, and examine Plaintiff’s 13 wheelchair. (Compl. at p. 5.) 14 This cause of action must be dismissed for it is not a cognizable one. “[I]nmates 15 lack a separate constitutional entitlement to a specific prison grievance procedure.” 16 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 17 (9th Cir. 1988) (due process not violated simply because defendant fails properly to process 18 grievances submitted for consideration). Accordingly, “[b]ecause there is no right to any 19 particular grievance process, it is impossible for [Fourteenth Amendment] due process to 20 have been violated by ignoring or failing to properly process prison grievances.” Daniels 21 v. Aguillera, No. 2:16-CV-00996-JAM-CKD P, 2018 WL 1763311 (E.D. Cal. Apr. 12, 22 2018), adopting Daniels v. Aguilera, P, 2018 WL 558658, at *1 (Jan. 24, 2018) (Report & 23 Recommendation). 24 For these reasons, the Court dismisses Plaintiff’s Fourteenth Amendment due 25 process claim. Because the due process clause does not provide a cause of action for the 26 relief Plaintiff seeks, amendment would be futile. Calif. Bd. of Prison Terms, 997 F. Supp. 27 1303, 1308 (C.D. Cal. 1998) (“Since plaintiff has not, and cannot, state a claim containing 28 an arguable basis in law, the action should be dismissed without leave to amend; any 1 amendment would be futile.”) Thus, the Court’s dismissal of this claim is with prejudice. 2 III. Conclusion and Orders 3 For the reasons set forth above, this Court: 4 1. GRANTS Plaintiff’s IFP Motion (ECF No. 2); 5 2. DIRECTS the Secretary of the California Department of Corrections and 6 Rehabilitation, or her designee, to collect from the full $350 filing fee owed by collecting 7 monthly payments from Plaintiff’s account in an amount equal to twenty percent (20%) of 8 the preceding month’s income and forwarding those payments to the Clerk of the Court 9 each time the amount in the account exceeds $10 pursuant to 28 U.S.C. Section 1915(b)(2). 10 ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND 11 NUMBER ASSIGNED TO THIS ACTION; 12 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 13 Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 14 942883, Sacramento, California 94283-0001; 15 4. DISMISSES with prejudice Plaintiff’s Fourteenth Amendment due process 16 claims for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. 17 §§ 1915(e)(2)(B)(ii) and 1915A(b)(1); 18 5. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 19 1) upon Defendants and forward it to Plaintiff along with a blank U.S. Marshal Form 285 20 for each of these Defendants. In addition, the Clerk will provide Plaintiff with a certified 21 copy of this Order, a certified copy of his Complaint, and the summons so that he may 22 serve the Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the 23 Form 285 as completely and accurately as possible, include an address where these 24 Defendants may be served, see Civ. L.R. 4.1.c, and return it to the United States Marshal 25 according to the instructions the Clerk provides in the letter accompanying his IFP package; 26 6. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 27 upon Defendants as directed by Plaintiff on the USM Form 285 provided to him. All costs 28 of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. 1 ||P. 4(c)(3); 2 7. ORDERS Defendants, once served, to reply to Plaintiff's Complaint within 3 || the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). 4 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive 5 right to reply to any action brought by a prisoner confined in any jail, prison, or other 6 correctional facility under section 1983,” once the Court has conducted its sua sponte 7 ||screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and thus, has made a 8 preliminary determination based on the face on the pleading alone that Plaintiff has a 9 || “reasonable opportunity to prevail on the merits,” defendant is required to respond); and 10 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 11 ||serve upon the Defendants, or, if appearance has been entered by counsel, upon 12 ||Defendants’ counsel, a copy of every further pleading, motion, or other document 13 ||}submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 14 ||include with every original document he seeks to file with the Clerk of the Court, a 15 certificate stating the manner in which a true and correct copy of that document has been 16 served on the Defendants or their counsel, and the date of that service. See Civ. L.R. 5.2. 17 || Any document received by the Court which has not been properly filed with the Clerk, or 18 || which fails to include a Certificate of Service upon the Defendants, may be disregarded. 19 20 IT IS SO ORDERED. 21 /\ yy 22 || DATED: September 29, 2021 (ypillg (Haphan 6 23 United States District Judge 24 25 26 27 28 ~10-2