Crenshaw v. CDCR

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA DAVANTA CRENSHAW, Case No.: 23-CV-312 JLS (DEB) CDCR #BN-0050, ORDER GRANTING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AND DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM CDCR California State Prison Los 15 PURSUANT TO 28 U.S.C. Angeles County and CDCR Richard J.

§§ 1915(e)(2), 1915A(b) Donovan Correctional Facility, 17 Defendants.

19 Plaintiff Davanta Crenshaw, a state prisoner currently housed at the Richard J.

20 Donovan Detention Facility (“RJD”) in San Diego, California, proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, accompanied by a Motion to Proceed In Forma Pauperis (“IFP”). ECF Nos. 1, 2. Plaintiff claims his due process rights were violated as a result of improper and untimely processing of two inmate grievances while housed at RJD and California State Prison, Los Angeles County (“LAC”) in Lancaster, California. ECF No. 1 at 3.

26 / / / / / / / / / I. Motion to Proceed IFP 2 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 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to prepay the entire fee only if leave to proceed IFP is granted pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 1915(a)(2) also 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 10 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial payment of twenty percent 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), (b)(4). The institution collects subsequent payments, assessed at twenty percent of the preceding month’s income, in any month in which the 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).

17 Plaintiff remains obligated to pay the entire fee in monthly installments regardless of whether their action is ultimately dismissed. Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 19 U.S.C. § 1915(b)(1), (b)(2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

20 In support of his IFP Motion, Plaintiff has submitted a copy of his Inmate Statement Report and Prison Certificate which indicate that during the six months prior to filing suit he had an average monthly balance of $8.10 and average monthly deposits of $6.86, with an available balance of $0.00 in his account at the time he filed suit. ECF No. 2 at 3; ECF No. 3 at 1.

27 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, 1 Plaintiff’s Motion to Proceed IFP is GRANTED without imposition of an initial partial filing fee. 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”); 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 . . .

7 due to the lack of funds available to him when payment is ordered”). Plaintiff remains obligated to pay the $350.00 filing fee in monthly installments. Bruce, 577 U.S. at 84.

9 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 10 A. Standard of Review 11 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)).

18 “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 21 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that § 1915A screening “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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 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.” Iqbal, 556 U.S. at 678.

1 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights.”

3 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

10 B. Plaintiff’s Allegations 11 Plaintiff alleges that on November 21, 2022, he “was supposed to have a response to a 602. The due process/time constraints were violated which caused for [sic] the filing of another 602 concerning the violations of due process/time constraints.” ECF No. 1 at 3.

14 Plaintiff alleges that the failure to timely respond to his grievances “deprived [him] of certain privileges and proved that negligence and insufficiency was present causing pain and suffering.” Id. He contends that on January 24, 2023, his second 602 inmate grievance “was granted in its entirety along with the amount of financial compensation of 5 billion dollars.” Id. He claims the Defendants, California Department of Corrections and Rehabilitation State Prison Los Angeles County (“CDCR LAC”) and California Department of Corrections and Rehabilitation Richard J. Donovan Correctional Facility (“CDCR RJD”), violated his due process rights by failing to follow their own time constraints in the first grievance and in failing to pay him five billion dollars within thirty days after granting his second grievance. Id. He seeks monetary compensation of five billion dollars and unspecified injunctive relief. Id. at 7.

25 C. Analysis 26 Plaintiff claims he was denied his right to due process from the failure of the two Defendants named in the Complaint, CDCR LAC and CDCR RJD, to follow their own time constraints in addressing his first 602 inmate grievance, the subject of which is not identified in the Complaint, and in failing to pay the $5 billion demand in the second grievance, which complained of the failure to abide by the deadlines of the first grievance.

3 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 6 U.S. 209, 221 (2005). “The Supreme court has held that a State creates a protected liberty by placing substantive limitations on official discretion, [and] that to obtain a protectable right an individual must have a legitimate claim of entitlement to it, [but] there is no legitimate claim of entitlement to a grievance procedure.” Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (citations and quotations omitted). Plaintiff’s allegations of a due process violation arising from the processing of his inmate grievances fails to state a claim because there is no protected liberty interest or independent constitutional right to a prison administrative appeal or grievance system. Id.; see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement to a specific prison grievance procedure.” (citing Mann, 855 F.2d at 640)).

16 Plaintiff’s Complaint, which contains only allegations of untimely and inadequate processing of inmate grievances, is dismissed for failure to state a 42 U.S.C. § 1983 claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).

19 D. Leave to Amend 20 In light of his pro se status, the Court grants Plaintiff leave to amend his Complaint in order to attempt to address the pleading deficiencies identified in this Order. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.’” (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012))).

26 III. Conclusion and Orders 27 Good cause appearing, the Court: 28 1. GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2); 1 2. ORDERS the Secretary of the CDCR, or his designee, to collect from || Plaintiffs prison trust account the $350 filing fee owed by collecting monthly payments 3 Plaintiffs account in an amount equal to twenty percent (20%) of the preceding ||month’s income and forwarding those payments to the Clerk of the Court each time the ||amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2); 6 3. DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail |jon Jeff Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, ||94283-0001, or by forwarding an electronic copy to [email protected]; and 9 4. DISMISSES Plaintiff's Complaint for failing to state a claim upon which ||relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)Gi) and 1915A(b)(1) and 11 GRANTS Plaintiff 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 above. □□□□□□□□□□□ |}amended complaint must be complete by itself without reference to his original pleading.

14 ||Defendants not named and any claim not re-alleged in the amended complaint will be ||considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 ||(‘[A]n amended pleading supersedes the original.”’).

17 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 19 claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and || 1915A(b)(1), 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.”’).

24 IT IS SO ORDERED.

25 Dated: March 7, 2023 . tt 26 pee Janis L. Sammartino 17 United States District Judge 6 □□