(PC) Salcido v. Warden

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA PAUL SALCIDO, Case No.: 3:19-cv-01420-LAB-JLB CDCR #J-81054, ORDER: Plaintiff, vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS 15 [ECF No. 6] D. PARAMO, Warden; KAMAR KIM, Chief Medical Officer; CHIEF AND CONTRACTING LABOR COMPANY, 18 Defendants. 2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM 19 PURSUANT TO 28 U.S.C. § 1915(e)(2) AND 28 U.S.C. § 1915A(b) 23 Paul Salcido (“Plaintiff”), a prisoner incarcerated at Salinas Valley State Prison (“SVSP”) located in Soledad, California, and proceeding pro se, initially filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 in the Eastern District of California.

26 On July 29, 2019, United States Magistrate Judge Stanley A. Boone determined that the events giving rise to the claims found in Plaintiff’s Complaint occurred when he was previously housed at the Richard J. Donovan Correctional Facility (“RJD”) and transferred the entire action to the Southern District of California. (ECF No. 2.)

3 Plaintiff did not prepay the filing fee required by 28 U.S.C. § 1914(a) to commence a civil action at the time he filed his Complaint; instead, he later filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF No. 6.)

6 I. Motion to Proceed In Forma Pauperis 7 All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. Samuels, __ S. Ct. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 15 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed.

16 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

17 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6- month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 24 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner In addition to the $350 statutory fee, civil litigants must pay an additional administrative 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 not apply to persons granted leave to proceed then collects subsequent payments, assessed at 20% of the preceding month’s income, in any month in which his account exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.

4 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate Statement Report, as well as a Prison Certificate issued by a SVSP trust accounting official which attests as to his balances and deposits over the 6-month period preceding the filing of his Complaint. See ECF No. 6 at 6-10; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These statements show Plaintiff has carried an average monthly balance of $11.15, had an average monthly deposit of $11.02 credited to his account over the 6-month period immediately preceding the filing of his Complaint, and an available balance of $5.94 on the books at the time of filing.

12 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 6) and assesses his initial partial filing fee to be $2.23 pursuant to 28 U.S.C. § 1915(b)(1). The Court will further direct the Secretary of the CDCR, or his designee, to collect this initial filing fee only if sufficient funds are available in Plaintiff’s account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 20 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds available to him when payment is ordered.”). The remaining balance of the $350 total fee owed in this case must be collected by the agency having custody of the prisoner and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).

25 II. Screening of Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 26 A. Standard of Review 27 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 8 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 9 680, 681 (7th Cir. 2012)).

10 “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 13 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

19 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

21 Id. “Determining whether a complaint states a plausible claim for relief [is] ... a context- specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant- unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 26 B. 42 U.S.C. § 1983 27 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 1 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 5 1030, 1035-36 (9th Cir. 2015).

6 C. Eighth Amendment Claims 7 Plaintiff offers no specific factual allegations in his Complaint. Instead, he alleges unnamed medical prison officials “were admonished to stop placing profits over prisoners’ health and safety” which “evidenced such deliberate indifference to Plaintiff’s serious medical needs.” (Compl. at 4.) These claims, without more, fail to state an Eighth Amendment claim. See 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b)(1); Watison, 668 F.3d 12 at 1112; Wilhelm, 680 F.3d at 1121.

13 To violate the Eighth Amendment, Plaintiff must allege facts sufficient to show “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 475 U.S. 312, 347 (1981).

15 “It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.” Whitley v. Albers, 475 U.S. 312, 319 (1986). Thus, alleged deprivations under the Eighth Amendment “must involve more than ordinary lack of due care for the prisoner’s interests or safety.” Id. Mere negligence on the part of the prison official is not sufficient to establish liability—the official’s conduct must have been wanton. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 297 (1991)).

22 To meet this high standard, a prisoner alleging an Eighth Amendment violation must plead facts sufficient to “satisfy both the objective and subjective components of a two- part test.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted). First, he must allege that prison officials deprived him of the “minimal civilized measure of life’s necessities.” Id. (citation omitted). Second, he must allege the officials “acted with deliberate indifference in doing so.” Id. (citation and internal quotation marks omitted).

28 Prison officials act with “deliberate indifference ... only if [they are alleged to] know[ ] of and disregard[ ] an excessive risk to inmate health and safety.” Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002) (citation and internal quotation marks omitted).

4 While Plaintiff’s allegations of having suffered “severe damage to his back and spinal column” are generally sufficient to meet the Eighth Amendment’s objective requirements, see Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (a medical need is serious when the failure to treat it could result in significant injury or the unnecessary and wanton infliction of pain), he must further allege facts sufficient to show that each individual person he seeks to sue “kn[e]w of and disregard[ed] an excessive risk to [his] health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); Leer v. Murphy, 844 F.2d 11 628, 634 (9th Cir. 1988) (liability may be imposed on individual defendant under § 1983 only if plaintiff can show that defendant proximately caused deprivation of federally protected right).

14 With respect to his medical needs, Plaintiff has failed to allege that any individual RJD correctional officer or medical staff knew his injuries posed a substantial risk of serious harm, and yet deliberately disregarded that risk by failing to take reasonable steps to abate it. Farmer, 511 U.S. at 837. Therefore, the Court dismisses Plaintiff’s Eighth Amendment claims for failing to state a claim upon which relief may be granted pursuant to See 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1).

20 D. Respondeat Superior 21 Plaintiff alleges that “[s]upervisory defendants breached their duties to legal administer the day-to-day protocol of labor employers contracting with the prison.”

23 (Compl. at 7.) Plaintiff names Warden Paramo as a Defendant in this action but nowhere in the body of his Complaint does Plaintiff include “further factual enhancement” which describes how or when Warden Paramo was the cause of any injury. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557). Instead, Plaintiff simply identifies Paramo as RJD’s Warden. (See Compl. at 3.) However, there is no respondeat superior liability under 42 28 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). “Because vicarious liability is inapplicable to ... § 1983 suits, [Plaintiff] must plead that each government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 at 676; see also Jones v. Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least me degree of particularity overt acts which defendants engaged in” in order to state a claim).

7 As currently pleaded, Plaintiff’s Complaint offers no factual detail from which the Court might reasonably infer a plausible claim for relief based on a violation of any constitutional right on the part of Warden Paramo. Iqbal, 662 U.S. at 678 (noting that Fed. R. Civ. P. 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” and that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’”)

13 (quoting Twombly, 550 U.S. at 555, 570). Therefore, the Court sua sponte dismisses Paramo as a party to this action based on Plaintiff’s failure to state a plausible claim against him. See 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

17 Thus, for all these reasons, the Court finds Plaintiff’s Complaint fails to state any § 1983 claim upon which relief can be granted, and that it must be dismissed sua sponte and in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121.

21 E. Leave to Amend 22 Because Plaintiff is proceeding pro se, however, the Court having now provided him with “notice of the deficiencies in his complaint,” will also grant him an opportunity to fix them. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). However, the Court cautions Plaintiff that if he chooses to file an Amended Complaint, he must clearly identify, by name, each individual person he seeks to hold liable for violating his Eighth Amendment rights. He must also be careful to allege facts showing the basis for liability for each individual Defendant. He must also name each Defendant and link them to his claims by explaining what each person did or failed to do that caused him constitutional injury. See Barren v. Harrington, 152 3 F.3d 1193, 1194 (9th Cir. 1998) (“A plaintiff must allege facts, not simply conclusions, t[o] show that [the Defendant] was personally involved in the deprivation of his civil rights.”); Estate of Brooks ex rel. Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required element of a § 1983 claim.”).

7 III. Conclusion and Orders 8 For the reasons discussed, the Court: 9 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 6).

11 2. ORDERS the Secretary of the CDCR, or his designee, to collect from Plaintiff’s trust account the $2.23 initial filing fee assessed, if those funds are available at the time this Order is executed, and to forward whatever balance remains of the full $350 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding month’s income to the Clerk of the Court each time the amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

18 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.

20 4. DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1).

23 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which to file an Amended Complaint which cures the deficiencies of pleading noted.

25 Plaintiff’s Amended Complaint must be complete by itself without reference to his original pleading. Defendants not named and any claim not re-alleged in his Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading ||supersedes the original.’’); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) || (noting that claims dismissed with leave to amend which are not re-alleged in an amended || pleading may be “considered waived if not repled.”’).

4 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter 5 final Order dismissing this civil action based both on his failure to state a claim upon || which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and his failure to prosecute in compliance with a court order requiring amendment. See Lira v. || Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of ||the opportunity to fix his complaint, a district court may convert the dismissal of the || complaint into dismissal of the entire action.”).

11 6. The Clerk of Court is directed to mail Plaintiff a court approved civil rights || form complaint for his use in amending.

13 IT IS SO ORDERED.

14 || Dated: August 28, 2019 (auf Af. (buy wy 15 Hon. Larry Alan Burns, Chief Judge 16 United States District Court