Thomas v. California State Board of Parole

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA LARRY JOSEPH THOMAS, Case No.: 3:19-cv-01384-CAB-WVG CDCR #J-05107, ORDER: Plaintiff, vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS 15 [ECF No. 5] CALIFORNIA STATE BOARD OF PAROLE; PETER LABAHN, AND 17 Defendants.

2) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM, 19 AND FOR SEEKING DAMAGES FROM IMMUNE DEFENDANTS PURSUANT TO 28 U.S.C. 21 § 1915(e)(2)(B) AND § 1915A(b) 24 Larry Joseph Thomas, (“Plaintiff”), currently incarcerated at the Richard J.

25 Donovan Correctional Facility (“RJD”) located in San Diego, California, and proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Before the Court could conduct the required sua sponte screening, Plaintiff filed a First Amended Complaint (“FAC”) which is now the operative pleading. (ECF No. 4.)

1 Plaintiff did not prepay the filing fee mandated by 28 U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 5).

4 II. Motion to Proceed In Forma Pauperis 5 In order to institute a civil action, a party must pay a filing fee of $400.1 See 28 6 U.S.C. § 1914(a). The action may proceed despite his 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, because he is a prisoner, even if he is granted leave to proceed IFP, Plaintiff remains obligated to pay the entire filing fee in “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

15 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) (hereafter “King”).

19 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 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4).

23 The institution having custody of the prisoner then collects subsequent payments, 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 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.

3 See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.

4 In support of his IFP Motion, Plaintiff has submitted copies of his CDCR Inmate Statement Report for the 6-month period preceding the filing of his Complaint, as well as a certified prison certificate attesting to his trust account activity and balances. See ECF Nos. 3, 5, 6; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; King, 398 F.3d at 1119. These statements show that Plaintiff had no available balance on the books at the time of filing.

9 See ECF No. 6. Based on this accounting, no initial partial filing fee is assessed. See 28 10 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. § 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.”).

16 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 5), declines to exact any initial filing fee because his prison certificate indicates he has “no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”), or his designee, to instead collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). See id. III. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A 24 A. Standard of Review 25 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 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); 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.’”

5 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). A complaint is “frivolous” if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).

9 “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 12 F.3d 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)”). Rule 12(b)(6) requires 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).

18 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.”

20 Iqbal, 556 U.S. at 678. “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 / / / / / / / / / 1 B. 42 U.S.C. § 1983 2 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 1030, 1035-36 (9th Cir. 2015).

7 C. Rule 8 8 As an initial matter, the Court finds that Plaintiff’s FAC fails to comply with Rule 8. Rule 8 of the Federal Rules of Civil Procedure provides that in order to state a claim for relief in a pleading it must contain “a short and plain statement of the grounds for the court’s jurisdiction” and “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1) & (2). Here, Plaintiff’s FAC fails to provide virtually any specific factual allegations giving rise to his claims. If Plaintiff choses to file an amended pleading he must provide the factual basis on which he is seeking relief.

16 Plaintiff is also admonished that he must comply with Local Rule 8.2 which requires, in part, that “[c]omplaints by prisoners under the Civil Rights Act, 42 U.S.C. § 1983, must be legibly written or typewritten on forms supplied by the court” and “[a]dditional pages not to exceed fifteen (15) in number may be included with the court approved form complaint, provided the form is completely filled in to the extent applicable.” S.D. CivLr 8.2(a).

22 D. Discussion 23 In addition, Plaintiff’s FAC is subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b).

25 First, to the extent Plaintiff claims he “is eligible for his most earliest possible release date,” see FAC at 2, his suit “challeng[es] the validity of [his] continued incarceration [and therefore] lie[s] within ‘the heart of habeas corpus.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (quoting Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973) (holding that a writ of habeas corpus is “explicitly and historically designed” to provide a state prisoner with the “exclusive” means to “attack the validity of his confinement” in federal court)).

4 Second, Plaintiff may not seek damages against the Board of Parole Hearings, an agency of the State of California. The State of California is not a “person” within the meaning of § 1983 and is immune from suit under the Eleventh Amendment. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984) (Eleventh Amendment bars federal jurisdiction over suits by individuals against a State and its instrumentalities, unless either the State consents to waive its sovereign immunity or Congress abrogates it); see also Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989) (dismissing prisoner’s § 1983 suit against the State of Arizona as legally frivolous), superseded by statute on other grounds as stated in Lopez, 203 F.3d at 1130; Brand v. Schubert, No. 2:16-CV-1811 MCE EFB P, 2017 WL 531721, at *2 (E.D. Cal. Feb. 7, 2017) (sua sponte dismissing § 1983 claims against the State of California on sovereign immunity grounds pursuant to 28 U.S.C. § 1915A).

17 III. Conclusion and Orders 18 For the reasons discussed, the Court: 19 1) GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 5).

20 2) ORDERS the Secretary of the CDCR, or his designee, to collect from Plaintiff’s trust account 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).

24 ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

26 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.

28 / / / 1 4) DISMISSES this civil action sua sponte for failing to state a claim upon || which § 1983 relief can be granted and for seeking monetary damages against defendants || who are absolutely immune pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) and || GRANTS him forty-five (45) days leave from the date of this Order in which to file an || Amended Complaint which cures all the deficiencies of pleading noted. Plaintiffs || 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 12 amended pleading may be “considered waived if not repled.’’).

13 If Plaintiff fails to file an Amended Complaint within the time provided, the Court || will enter a final Order dismissing this civil action based both on Plaintiff’s failure to || state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 16 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.”’).

20 5) DIRECTS the Clerk of Court to mail a court approved civil rights complaint 21 to the Plaintiff for his use in amending.

22 IT IS SO ORDERED.

23 Dated: September 26, 2019 € ZL Hon. Cathy Ann Bencivengo 25 United States District Judge