# Barbarin v. Department of Corrections and Rehabilitation

> District Court, S.D. California · October 24, 2019

URL: https://www.frixlaw.com/law-library/cases/10079830

## Case

- **Court:** District Court, S.D. California
- **Decided:** October 24, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10079830

## How later opinions describe it (automated extraction)

- noting that claims 14 || dismissed with leave to amend which are not re-alleged in an amended pleading may be 15 || “considered waived if not repled.’’
- discussing 28 U.S.C. § 1915A(b)
- noting that 22 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 RICARDO BARBARIN, Case No.: 3:19-cv-01714-JAH-RBB
CDCR #AL-9287,
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ORDER:
Plaintiff,
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vs. 1) GRANTING MOTION TO
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PROCEED IN FORMA PAUPERIS

15 [ECF No. 2]
DEPARTMENT OF CORRECTIONS
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AND REHABILITATION; RAYMOND AND
17 MADDEN, Warden; RALPH DIAZ,
Secretary of CDCR; DOES 1-5 , 2) DISMISSING COMPLAINT FOR
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Defendants. FAILING TO STATE A CLAIM
19 PURSUANT TO
28 U.S.C. § 1915(e)(2) AND
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28 U.S.C. § § 1915A(b)
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22 Ricardo Barbarin (“Plaintiff”), proceeding pro se, is currently incarcerated at
23 Centinela State Prison (“CEN”) located in Imperial, California, and has filed this civil
24 rights action pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. Plaintiff did not prepay
25 the civil filing fee required by 28 U.S.C. § 1914(a) at the time of filing, but instead filed a
26 Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No.
27 2), along with a certified Prison Certificate and copies of his CDCR Inmate Trust Account
28 Statement Report (ECF Nos. 2, 3).
1 I. IFP Motion
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 of
4 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to
8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
9 Bruce, 136 S. Ct. at 629; Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and
10 regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2);
11 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a
13 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6-
14 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);
15 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account
16 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits
17 in the account for the past six months, or (b) the average monthly balance in the account
18 for the past six months, whichever is greater, unless the prisoner has no assets. See 28
19 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner
20 then collects subsequent payments, assessed at 20% of the preceding month’s income, in
21 any month in which his account exceeds $10, and forwards those payments to the Court
22 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.
23 In support of his IFP Motion, Plaintiff has submitted certified copies of his CDCR
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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative
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fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
27 Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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1 Inmate Statement Report showing his trust account activity at the time of filing, as well as
2 a Prison Certificate signed by a CEN Accounting Officer attesting as to his monthly
3 balances and deposits. See ECF No. 3; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2;
4 Andrews, 398 F.3d at 1119. These documents show that Plaintiff has had no money in his
5 trust account for the 6-months preceding the filing of this action, and that he had a zero
6 balance at the time of filing. See ECF No. 3; 28 U.S.C. § 1915(b)(4) (providing that “[i]n
7 no event shall a prisoner be prohibited from bringing a civil action or appealing a civil
8 action or criminal judgment for the reason that the prisoner has no assets and no means by
9 which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at
10 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a
11 prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds available to
12 him when payment is ordered.”).
13 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), but
14 declines to “exact” any initial filing fee because his trust account statement shows he “has
15 no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California
16 Department of Corrections and Rehabilitation (“CDCR”) to collect the entire $350 balance
17 of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court
18 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
19 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
20 A. Standard of Review
21 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the
22 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP
23 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused
24 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or
25 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as
26 practicable after docketing,” and ideally before the service of process upon any Defendant.
27 See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these statutes, the Court must sua sponte
28 dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a
1 claim, or which seek damages from defendants who are immune. See Lopez v. Smith, 203
2 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d
3 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of § 1915[]
4 is to ‘ensure that the targets of frivolous or malicious suits need not bear the expense of
5 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (quoting Wheeler
6 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
7 All complaints must contain “a short and plain statement of the claim showing that
8 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
9 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
10 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
11 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a
12 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the
13 reviewing court to draw on its judicial experience and common sense.” Id. The “mere
14 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also
15 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
16 “When there are well-pleaded factual allegations, a court should assume their
17 veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
18 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
19 (“[W]hen determining whether a complaint states a claim, a court must accept as true all
20 allegations of material fact and must construe those facts in the light most favorable to the
21 plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that
22 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).
23 While the court “ha[s] an obligation where the petitioner is pro se, particularly in
24 civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit
25 of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v.
26 Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements
27 of claims that were not initially pled.” Ivey v. Board of Regents of the University of Alaska,
28 673 F.2d 266, 268 (9th Cir. 1982).
1 B. Plaintiff’s Factual Allegations
2 Plaintiff’s factual allegations are sparse. On January 24, 2019, Plaintiff “submitted
3 a CDC 1046 application for family visiting.” (Compl. at 1.) However, on February 7,
4 2019, his application was denied. (See id.) The CDCR amended a regulation requiring
5 inmates “to sustain disciplinary free period of serious rule violations for ten years and
6 participate in self-help groups such as anger management, narcotics and/or alcoholic
7 anonymous programs” in order to participate in family overnight visitation. (Id. at 6.)
8 Plaintiff seeks $1,000,000 in compensatory and punitive damages. (Id. at 9.)
9 C. 42 U.S.C. § 1983
10 “Section 1983 creates a private right of action against individuals who, acting under
11 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,
12 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive
13 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”
14 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations
15 omitted). To prevail on a claim for the violation of constitutional rights under 42 U.S.C. §
16 1983, a plaintiff must prove two elements: (1) that a person acting under the color of state
17 law committed the conduct at issue; and (2) that the conduct deprived the plaintiff of some
18 right, privilege, or immunity conferred by the Constitution or the laws of the United States.
19 See Nelson v. Campbell, 541 U.S. 637, 643 (2004). A section 1983 suit may be dismissed
20 for failure to state a claim “if the complaint is devoid of factual allegations that gave rise
21 to a plausible inference of either element.” Naffe v. Frey, 789 F.3d 1030, 1036 (9th Cir.
22 2015).
23 D. Defendant CDCR
24 First, to the extent Plaintiff includes the CDCR as a named Defendant, his Complaint
25 fails to state any claim upon which § 1983 relief can be granted. See 28 U.S.C. §
26 1915(e)(2)(B)(ii); § 1915A(b)(1); Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121.
27 This entity is not a “person” subject to suit under § 1983. See Hale v. State of Arizona, 993
28 F.2d 1387, 1398-99 (9th Cir. 1993) (holding that a state department of corrections is an
1 arm of the state, and thus, not a “person” within the meaning of § 1983).
2 E. Equal Protection Claims
3 The Fourteenth Amendment’s Equal Protection Clause requires that persons
4 similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473
5 U.S. 432, 439; Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th
6 Cir. 2013); Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro,
7 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established in two
8 ways. The first method requires a plaintiff to show that the defendant has intentionally
9 discriminated against the plaintiff on the basis of his membership in a protected class.
10 Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at 1030; Serrano v. Francis, 345 F.3d
11 1071, 1082 (9th Cir. 2003); Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th
12 Cir. 2005); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Under this theory
13 of equal protection, Plaintiff must allege that Defendants’ actions were a result of his
14 membership in a suspect class such as race, religion, or alienage. Thornton v. City of St.
15 Helens, 425 F.3d 1158, 1167 (9th Cir. 2005). Here, Plaintiff does not allege to be a member
16 of any suspect class, and he fails to allege Defendants denied him family overnight
17 visitation based on his membership in any suspect class.
18 To the extent his claims do not involve a suspect classification, Plaintiff may
19 establish an equal protection claim only if he alleges facts sufficient to plausibly show
20 Defendants intentionally treated similarly situated inmates differently without a rational
21 basis for doing so. Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 601-02
22 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); San Antonio School
23 District v. Rodriguez, 411 U.S. 1 (1972); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592
24 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).
25 But to state an equal protection claim under this “class of one” theory, he must allege facts
26 to plausibly show that: (1) he is a member of an identifiable class; (2) he was intentionally
27 treated differently from others similarly situated; and (3) there is no rational basis for the
28 difference in treatment. Nurre v. Whitehead, 580 F.3d 1087, 1098 (9th Cir. 2009) (citing
1 Village of Willowbrook, 528 U.S. at 564). He must further allege discriminatory intent. See
2 Washington v. Davis, 426 U.S. 229, 239-240 (1976); Serrano, 345 F.3d at 1081-82;
3 Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997).
4 Plaintiff offers no facts to suggest that he is a member of an identifiable class or that
5 he was being treated differently from similarly situated inmates. Plaintiff fails to make
6 clear how he was purportedly treated differently from other prisoners. Moreover, he fails
7 to allege any facts from which the Court could conclude that Defendants policy of granting
8 of visitation to inmates without disciplinary infractions lacks a rational or penological
9 interest. Accordingly, Plaintiff has failed to state an equal protection claim.
10 F. First Amendment claims
11 Plaintiff claims that Defendants are “willfully and knowingly prohibit Plaintiff free
12 speech, intimate and expressive association with his wife.” (Compl. at 9.) However, it is
13 “well-settled that prisoners have no constitutional right while incarcerated to contact visits
14 or conjugal visits.” Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002) (citing Kentucky
15 Dep’t of Corrs v. Thompson, 490 U.S. 454, 460 (1989)). Therefore, the Court finds that
16 Plaintiff has failed to state a First Amendment claim.
17 G. Claims against Madden and Diaz
18 Plaintiff seeks to hold these Defendants liable in their supervisory positions.
19 Plaintiff does not allege that any of these named Defendants were actually aware Plaintiff
20 was denied family visitation. There is no respondeat superior liability under 42 U.S.C.
21 § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Rather, “deliberate
22 indifference is a stringent standard of fault, requiring proof that a municipal actor
23 disregarded a known or obvious consequence of his action.” Connick v. Thompson, 563
24 U.S. 51, 62 (2011) (“A less stringent standard of fault for a failure-to-train claim ‘would
25 result in de facto respondeat superior liability on municipalities . . . .’”), quoting City of
26 Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989).
27 “The inquiry into causation must be individualized and focus on the duties and
28 responsibilities of each individual defendant whose acts or omissions are alleged to have
1 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988),
2 citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976); Berg v. Kincheloe, 794 F.2d 457, 460
3 (9th Cir. 1986); Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999)
4 (“Causation is, of course, a required element of a § 1983 claim.”) A person deprives
5 another “of a constitutional right, within the meaning of section 1983, if he does an
6 affirmative act, participates in another’s affirmative acts, or omits to perform an act which
7 he is legally required to do that causes the deprivation of which [the plaintiff complains].”
8 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff has not stated a claim against
9 these Defendants because he has failed to allege facts regarding what actions were taken
10 or not taken by these Defendants which caused the alleged constitutional violations. See
11 Canton, 489 U.S. at 385 (“Respondeat superior and vicarious liability will not attach under
12 § 1983.”), citing Monell, 436 U.S. at 694-95.
13 H. Leave to Amend
14 Thus, for all these reasons, the Court finds Plaintiff’s Complaint fails to state any
15 § 1983 claim upon which relief can be granted, and that it must be dismissed sua sponte
16 and in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See
17 Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. Because Plaintiff is proceeding pro
18 se, however, the Court having now provided him with “notice of the deficiencies in his
19 complaint,” will also grant him an opportunity to fix them. See Akhtar v. Mesa, 698 F.3d
20 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).
21 III. Conclusion and Order
22 For the reasons explained, the Court:
23 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
24 (ECF No. 2).
25 2. DIRECTS the Secretary of the CDCR, or his designee, to garnish the $350
26 filing fee owed in this case by collecting monthly payments from his account in an
27 amount equal to twenty percent (20%) of the preceding month’s income and forwarding
28 them to the Clerk of the Court each time the amount in the account exceeds $10 pursuant
1 || to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY
2 || THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
3 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph
4 || Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.
5 4. DISMISSES Plaintiff's Complaint for failing to state a claim upon which
6 ||relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and
7 GRANTS him thirty days leave from the date of this Order in which to file an Amended
8 ||Complaint which cures all the deficiencies of pleading noted. Plaintiff's Amended
9 ||Complaint must be complete by itself without reference to his original pleading.
10 Defendants not named and any claim not re-alleged in his Amended Complaint will
11 || be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
12 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
13 original.’”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims
14 || dismissed with leave to amend which are not re-alleged in an amended pleading may be
15 || “considered waived if not repled.’’).
16 5. The Clerk of Court is directed to mail Plaintiff a court approved civil rights
17 ||complaint form for his use in amending.
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19 IT IS SO ORDERED.
20 || Dated: October 23, 2019
21 n. John A. Houston
09 Jnited States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10079830. Public record. Not legal advice.