Allen v. Cardenas

1

2

3

4

5

6

7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

9

10 CHARLES EDWARD ALLEN, Case No.: 3:19-cv-01610-JAH-RBB

CDCR #D-76353,

11

ORDER:

Plaintiff,

12

vs. (1) GRANTING MOTION TO

13

PROCEED IN FORMA PAUPERIS

J. CARDENAS; RALPH M. DIAZ; W.L.

14 PURSUANT TO 28 U.S.C. § 1915(a);

MONTGOMERY; M. POLLARD; L.

15 WOOD; M. CARRILLO,

(2) DENYING MOTION TO

16 Defendants. APPOINT COUNSEL; and

17

(3) DISMISSING COMPLAINT FOR

18 FAILING TO STATE A CLAIM

19

20 Charles Edward Allen (“Plaintiff”), a state inmate currently housed at Calipatria

21 State Prison (“CAL”) located in Calipatria, California, and proceeding pro se, has filed a

22 Complaint pursuant to the Civil Rights Act, 42 U.S.C. § 1983. (See Compl., ECF No. 1.)

23 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the

24 time he submitted his Complaint, but instead he has filed a Motion to Proceed In Forma

25 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), along with a Motion to Appoint

26 Counsel. (See ECF Nos. 2, 3.)

27 / / / /

28

1 I. Motion to Proceed IFP

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. See

4 28 U.S.C. § 1914(a). An action may proceed despite the plaintiff’s failure to prepay the

5 entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See

6 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a

7 prisoner and is granted leave to proceed IFP, he nevertheless remains obligated to pay the

8 entire fee in installments, regardless of whether his action is ultimately dismissed. See 28

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

10 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act

11 (“PLRA”), a prisoner seeking leave to proceed IFP must also submit a “certified copy of

12 the trust fund account statement (or institutional equivalent) for . . . the six-month period

13 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.

14 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the

15 Court assesses an initial payment of 20% of (a) the average monthly deposits in the

16 account for the past six months, or (b) the average monthly balance in the account for the

17 past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C.

18 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then

19 collects subsequent payments, assessed at 20% of the preceding month’s income, in any

20 month in which the prisoner’s account exceeds $10, and forwards them to the Court until

21 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

22 In support of his IFP Motion, Plaintiff has submitted a certified copy of his prison

23 certificate issued by a CAL accounting official verifying his account history and available

24 balances. See ECF No. 2 at 4. Plaintiff’s statements show that he had only $0.01 in

25 funds to his credit at the time of filing. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n

26 no event shall a prisoner be prohibited from bringing a civil action or appealing a civil

27 action or criminal judgment for the reason that the prisoner has no assets and no means

28 by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28

1 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case

2 based solely on a “failure to pay . . . due to the lack of funds available to him when

3 payment is ordered.”).

4 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and

5 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350

6 balance of the filing fees due for this case must be collected by the California Department

7 of Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court

8 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

9 II. Motion for Appointment of Counsel

10 Plaintiff also requests that the Court appoint him counsel in this matter. (See ECF

11 No. 3.) All documents filed pro se are liberally construed, and “a pro se complaint,

12 however inartfully pleaded, must be held to less stringent standards than formal pleadings

13 drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v.

14 Gamble, 429 U.S. 97, 106 (1976) (internal quotations omitted)). But there is no

15 constitutional right to counsel in a civil case; and none of Plaintiff’s pleadings to date

16 demand that the Court exercise its limited discretion to request than an attorney represent

17 him pro bono pursuant to 28 U.S.C. § 1915(e)(1) at this stage of the case. See Lassiter v.

18 Dept. of Social Servs., 452 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of America, 390

19 F.3d 1101, 1103 (9th Cir. 2004). Only “exceptional circumstances” support such a

20 discretionary appointment. Terrell v. Brewer, 935 F.3d 1015, 1017 (9th Cir. 1991);

21 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Exceptional circumstances exist

22 where there is cumulative showing of both a likelihood of success on the merits and a

23 demonstrated inability of the pro se litigant to articulate his claims in light of their legal

24 complexity. Id.

25 As currently pleaded, Plaintiff’s Complaint demonstrates that while he may not be

26 formally trained in law, he nevertheless may be capable of articulating the facts and

27 circumstances relevant to his claims, which are typical and not legally “complex.”

28 Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed below, Plaintiff has yet

1 to show he is likely to succeed on the merits of his claims. Therefore, the Court DENIES

2 Plaintiff’s Motion for Appointment of Counsel (ECF No. 3).

3 III. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

4 A. Standard of Review

5 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the

6 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP

7 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and]

8 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the

9 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as

10 soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under

11 these statutes, the Court must sua sponte dismiss complaints, or any portions thereof,

12 which are frivolous, malicious, fail to state a claim, or which seek damages from

13 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v.

14 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v.

15 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

16 All complaints must contain “a short and plain statement of the claim showing that

17 the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not

18 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

19 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

20 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether

21 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires

22 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere

23 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

24 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

25 “When there are well-pleaded factual allegations, a court should assume their

26 veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

27 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

28 (“[W]hen determining whether a complaint states a claim, a court must accept as true all

1 allegations of material fact and must construe those facts in the light most favorable to

2 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

3 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).

4 However, while the court “ha[s] an obligation where the petitioner is pro se,

5 particularly in civil rights cases, to construe the pleadings liberally and to afford the

6 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

7 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not

8 “supply essential elements of claims that were not initially pled.” Ivey v. Board of

9 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

10 B. Plaintiff’s Factual Allegations

11 On January 18, 2019, Plaintiff was “having a conversation” with Defendant

12 Cardenas regarding Cardenas “stopping the [unspecified] program with the approval of

13 his authority.” (Compl. at 4.) Two days later, Plaintiff filed a “citizens complaint”

14 against Cardenas for his “unprofessional conduct” and “endanger[ing] inmate/employee’s

15 life.” (Id.) Cardenas learned of the complaint and “inform[ed] other inmates that he was

16 going to write Plaintiff up and have him remov[ed] off of the facility.” (Id.)

17 Cardenas “wrote a CDC-128 (Rev 4/74) informative chrono” on January 23, 2019

18 in retaliation for Plaintiff filing his “citizens complaint.” (Id.) On that same day,

19 Plaintiff was “interview[ed] by Defendant L. Wood” regarding the “128-B chrono.” (Id.)

20 During the interview, Wood informed Plaintiff that he had his “citizen’s complaint on his

21 desk.” (Id. at 5.) Wood told Plaintiff to “take it back to his cell.” (Id.)

22 On March 8, 2019, Wood “called” Plaintiff to his office “for a hearing on that

23 citizens complaint.” (Id.) Wood and Defendant Pollard informed Plaintiff “that

24 Defendant J. Cardenas did retaliate against him.” (Id.) Wood and Pollard then “granted

25 in part” Plaintiff’s “citizens complaint.” (Id.) Defendant Carrillo also found that

26 Cardenas “retaliat[ed] against Plaintiff.” (Id.)

27 Plaintiff claims Defendants Pollard, Wood, Montgomery, and Carrillo “did not do

28 anything to stop [Cardenas] from retaliating” against Plaintiff. (Id. at 6.) Plaintiff

1 “reach[ed] out to the Office of Internal Affairs, the Office of the Governor, the Office of

2 the Inspector General, and to Judge David S. Wesley, Superior Court of the State of

3 California, County of Los Angeles” regarding the “wrongdoing of prison.” (Id.)

4 Plaintiff seeks injunctive relief along with compensatory damages. (Id. at 9-10.)

5 D. Retaliation claim

6 Plaintiff offers very few specific factual allegations to support his claim of

7 retaliation. “Within the prison context, a viable claim of First Amendment retaliation

8 entails five basic elements: (1) An assertion that a state actor took some adverse action

9 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such

10 action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action

11 did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d

12 559, 567-68 (9th Cir. 2005) (internal footnote omitted). Adverse action is action that

13 “would chill a person of ordinary firmness” from engaging in the protected activity.

14 Pinard v. Clatskanie School District 6J, 467 F.3d 755, 770 (9th Cir. 2006); see also

15 White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000). Plaintiff also must allege facts to show

16 that the exercise of his First Amendment rights was the substantial or motivating factor

17 behind Ibarra’s conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S.

18 274, 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989).

19 Further, he bears the burden of pleading and proving the absence of legitimate

20 correctional goals for the conduct of which he complains. Pratt v. Rowland, 65 F.3d 802,

21 806 (9th Cir. 1995).

22 Here, Plaintiff fails to identify any “adverse action” that was taken against him.

23 He claims Cardenas issued an “informative chrono” because Plaintiff wrote a “citizens

24 complaint” against Cardenas. (Compl. at 4.) However, he fails to identify how this

25 “chrono” was an “adverse action.” Instead, Plaintiff actually alleges that the other

26 correctional officers agreed with him and “granted in part” his “citizens complaint.”

27 (See id. at 4-5.)

28

1 Because Plaintiff’s Complaint currently fails to allege facts in support of all these

2 pleading requirements, and offers no more than “unadorned, the defendant-unlawfully-

3 harmed-me accusation[s],” see Iqbal, 556 U.S. at 678, the Court finds it fails to allege a

4 plausible claim of retaliation. See id.

5 E. Fourteenth Amendment Equal Protection claims

6 Plaintiff claims, with no supporting factual allegations, that Defendants have

7 “violated” the “Fourteenth Amendment Right of Equal Protection.” (Compl. at 7-8.) The

8 Fourteenth Amendment’s Equal Protection Clause requires that persons similarly situated

9 be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439;

10 Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013);

11 Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d

12 878, 891 (9th Cir. 2008). An equal protection claim may be established in two ways. The

13 first method requires a plaintiff to show that the defendant has intentionally discriminated

14 against the plaintiff on the basis of his membership in a protected class. Hartmann, 707

15 F.3d at 1123; Furnace, 705 F.3d at 1030; Serrano v. Francis, 345 F.3d 1071, 1082 (9th

16 Cir. 2003); Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005); Lee v.

17 City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Under this theory of equal

18 protection, Plaintiff must allege that Defendants’ actions were a result of his membership

19 in a suspect class such as race, religion, or alienage. Thornton v. City of St. Helens, 425

20 F.3d 1158, 1167 (9th Cir. 2005). Here, Plaintiff does not allege to be a member of any

21 suspect class.

22 To the extent his claims do not involve a suspect classification, Plaintiff may

23 establish an equal protection claim only if he alleges facts sufficient to plausibly show

24 Defendants intentionally treated similarly situated inmates differently without a rational

25 basis for doing so. Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 601-02

26 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); San Antonio School

27 District v. Rodriguez, 411 U.S. 1 (1972); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580,

28 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir.

1 2008). But to state an equal protection claim under this “class of one” theory, he must

2 allege facts to plausibly show that: (1) he is a member of an identifiable class; (2) he was

3 intentionally treated differently from others similarly situated; and (3) there is no rational

4 basis for the difference in treatment. Nurre v. Whitehead, 580 F.3d 1087, 1098 (9th Cir.

5 2009) (citing Village of Willowbrook, 528 U.S. at 564). He must further allege

6 discriminatory intent. See Washington v. Davis, 426 U.S. 229, 239-240 (1976); Serrano,

7 345 F.3d at 1081-82; Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). Plaintiff

8 offers no factual allegations to support any element of an equal protection claim.

9 F. Personal Causation

10 In addition, the Court finds Plaintiff’s Complaint requires sua sponte dismissal

11 pursuant to 28 U.S.C. § 1915(e)(2)(B)(1) and § 1915A(b)(1) to the extent he fails to

12 identify any specific action or inaction taken on the part of many of the named

13 Defendants. “To state a claim under 42 U.S.C. § 1983, the plaintiff must allege two

14 elements: (1) that a right secured by the Constitution or laws of the United States was

15 violated; and (2) that the alleged violation was committed by a person acting under color

16 of state law.” Campbell v. Washington Dep’t of Soc. Servs., 671 F.3d 837, 842 n.5 (9th

17 Cir. 2011), citing Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). The

18 Complaint contains no factual allegations describing what most of the Defendants did or

19 failed to do.

20 “The inquiry into causation must be individualized and focus on the duties and

21 responsibilities of each individual defendant whose acts or omissions are alleged to have

22 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988),

23 citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976); Berg v. Kincheloe, 794 F.2d 457,

24 460 (9th Cir. 1986); Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir.

25 1999) (“Causation is, of course, a required element of a § 1983 claim.”) A person

26 deprives another “of a constitutional right, within the meaning of section 1983, if he does

27 an affirmative act, participates in another’s affirmative acts, or omits to perform an act

28 which he is legally required to do that causes the deprivation of which [the plaintiff

1 complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff has not

2 stated a claim against Defendants Diaz, Montgomery, Pollard, Wood and Diaz because

3 he has failed to allege specific facts regarding what actions were taken or not taken by

4 these Defendants which caused the alleged constitutional violations.

5 G. Leave to Amend

6 Accordingly, Plaintiff’s entire Complaint is dismissed for failing to state a claim

7 upon which relief may be granted. Because he is proceeding pro se, however, the Court

8 having now provided him with “notice of the deficiencies in his complaint,” will also

9 grant Plaintiff an opportunity to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th

10 Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

11 III. Conclusion and Order

12 Good cause appearing, the Court:

13 1. DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 3) without

14 prejudice;

15 2. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

16 (ECF No. 2).

17 3. DIRECTS the Secretary of the CDCR, or his designee, to collect from

18 Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly

19 payments from his account in an amount equal to twenty percent (20%) of the preceding

20 month’s income and forwarding those payments to the Clerk of the Court each time the

21 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

22 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

23 ASSIGNED TO THIS ACTION.

24 4. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz,

25 Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883,

26 Sacramento, California, 94283-0001.

27 5. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

28 § 1983 relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

1 6. GRANTS Plaintiff thirty (30) days leave in which to file an Amended

2 ||Complaint which cures all the deficiencies of pleading described in this Order. Plaintiff is

3 || cautioned, however, that should he choose to file an Amended Complaint, it must be

4 || complete by itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim

5 re-alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios,

6 || v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

7 || pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.

8 2012) (noting that claims dis missed with leave to amend which are not re-alleged in an

9 ||amended pleading may be “considered waived if not repled.’’).

10 If Plaintiff fails to follow these instructions and/or files an Amended Complaint

11 || that still fails to state a claim, his case may be dismissed without further leave to amend.

12 || See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take

13 advantage of the opportunity to fix his complaint, a district court may convert the

14 dismissal of the complaint into dismissal of the entire action.”).

15 7. DENIES Motion Request to Receive Ten Subpoenas (ECF No. 6) as moot.

16 8. The Clerk of Court is directed to mail a court approved civil rights complaint

17 || form for his use in amending.

18 IT IS SO ORDERED.

19

20 || Dated: September 27, 2019 VU

21 Hon. John A. Houston

Unit¢d States District Judge

23

24

25

26

27

28

10