Arellano v. Lamborn

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 RAUL ARELLANO, Case No.: 3:19-cv-02360-JAH-LL

CDCR #AH-1995,

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ORDER:

Plaintiff,

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vs. 1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS

DAVID G. LAMBORN; HUFFMAN;

15 [ECF No. 2]

LAURA W. HALGREN; BENKE;

16 UNITED STATES POSTAL SERVICE,

AND

17 Defendants.

2) DISMISSING COMPLAINT FOR

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LACK OF SUBJECT MATTER

19 JURISDICTION

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21 Raul Arellano (“Plaintiff”), currently incarcerated at the Richard J. Donovan

22 Correctional Facility (“RJD”) located in San Diego, California, and proceeding pro se, has

23 filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has not

24 paid the civil filing fee required by 28 U.S.C. § 1914(a); instead he has filed a Motion to

25 Proceed In Forma Pauperis pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).

26 I. Motion to Proceed In Forma Pauperis

27 All parties instituting any civil action, suit or proceeding in a district court of the

28 United States, except an application for writ of habeas corpus, must pay a filing fee of

1 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

5 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

6 Bruce v. Samuels, __ S. Ct. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775

7 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately

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

9 Cir. 2002).

10 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

11 “certified copy of the trust fund account statement (or institutional equivalent) for ... the

12 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

13 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

14 trust account statement, the Court assesses an initial payment of 20% of (a) the average

15 monthly deposits in the account for the past six months, or (b) the average monthly

16 balance in the account for the past six months, whichever is greater, unless the prisoner

17 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

18 custody of the prisoner then collects subsequent payments, assessed at 20% of the

19 preceding month’s income, in any month in which his account exceeds $10, and forwards

20 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

21 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Prison

22 Certificate and Inmate Statement Report recording his balances and deposits over the 6-

23 month period preceding the filing of his Complaint. See ECF No. 3; 28 U.S.C.

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative

27 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

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1 § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These reports show

2 Plaintiff had a balance of only $0.05 at the time of filing. See ECF No. 3 at 1. See 28

3 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from

4 bringing a civil action or appealing a civil action or criminal judgment for the reason that

5 the prisoner has no assets and no means by which to pay the initial partial filing fee.”);

6 Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4)

7 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a

8 “failure to pay ... due to the lack of funds available to him when payment is ordered.”).

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

10 declines to “exact” any initial filing fee because his trust account statement shows he “has

11 no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California

12 Department of Corrections and Rehabilitation (“CDCR”) to collect the entire $350

13 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of

14 the Court pursuant to the installment payment provisions set forth in 28 U.S.C.

15 § 1915(b)(1).

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

17 A. Standard of Review

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

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

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

21 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or

22 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as

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

24 statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are

25 frivolous, malicious, fail to state a claim, or which seek damages from defendants who are

26 immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 F.3d 1122,

27 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004

28 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

16 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).

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

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

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

20 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply

21 essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the

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

23 B. Plaintiff’s Allegations

24 Plaintiff alleges that he submitted his “habeas corpus on 6-19-2014” and the “court

25 denied some grounds on the merits but didn’t deny 60 grounds of [ineffective assistance

26 of counsel (“IAC”)] on merits. (Compl. at 4.) The Court informed Plaintiff that they

27 “couldn’t hear the claims because [he] failed to submit the trial transcripts.” (Id.)

28 Plaintiff alleges it took him “several years” to obtain his transcripts. (Id.) Plaintiff

1 submitted the transcripts so the “superior court [could] hear merits of IAC.” (Id.)

2 However, Plaintiff claims the trial court erred when they claimed that they had already

3 rendered a decision regarding Plaintiff’s IAC claims on the merits. (See id.) As a result,

4 Plaintiff alleges that neither the state appellate courts or the federal courts would consider

5 these claims. (See id.)

6 Plaintiff “would like [this] Court to order [the state court] to hear my IAC grounds

7 on merits because [he] cure[d] the defects.” (Id.) In addition, Plaintiff argues that his

8 “actual innocence” claim should also be heard on the merits. (Id. at 5.)

9 Plaintiff claims that “Judges from superior and appeal state courts” denied him

10 access to his trial transcripts that he had been requesting “from 2015 – August 2016.”

11 (Id. at 6.) Plaintiff alleges his trial transcripts were “destroyed on September 21, 2014 by

12 a prison state employee.” (Id.) In 2017, Plaintiff “end[ed] up getting the transcripts

13 through other sources.” (Id.) Plaintiff seeks relief in the form of a “ruling determining if

14 state courts did violate [his] rights when” they purportedly failed to provide him with his

15 trial transcripts. (Id.)

16 On August 23, 2018, Plaintiff mailed his “notice of appeal” and his “opening brief”

17 to the Ninth Circuit Court of Appeals through the prison mailroom. (Id. at 7.) He

18 received a United States Postal Service (“USPS”) “tracking number” indicating that the

19 documents had been mailed. (Id.) However, Plaintiff claims that the Ninth Circuit did

20 not receive these documents and the USPS has “no history of what happen[ed] to those 3

21 manila envelopes.” (Id.) Thus, Plaintiff’s matter was “dismissed” by the Ninth Circuit

22 on the grounds they never received either his notice of appeal or his opening brief. (Id.)

23 As a result, Plaintiff claims that his “chance to have gotten release[ed] from prison for

24 facts of innocence is gone.” (Id.) Plaintiff seeks “monetary compensation” against the

25 USPS. (Id.)

26 C. 42 U.S.C. § 1983

27 “Section 1983 creates a private right of action against individuals who, acting under

28 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,

1 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive

2 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

3 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations

4 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right

5 secured by the Constitution and laws of the United States, and (2) that the deprivation was

6 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698

7 F.3d 1128, 1138 (9th Cir. 2012).

8 D. Rooker Feldman Doctrine

9 Plaintiff is very clear in his request for injunctive relief that he seeks an order from

10 this Court directing the state courts to hear his claims of IAC and actual innocence. (See

11 Compl. at 10.)

12 However, this is not a viable form of relief in this action. The Rooker-Feldman

13 doctrine provides that “‘a losing party in state court is barred from seeking what in

14 substance would be appellate review of the state judgment in a United States District

15 Court, based on the losing party’s claim that the state judgment itself violates the loser’s

16 federal rights.’” Doe v. Mann, 415 F.3d 1038, 1041 (9th Cir. 2005) (quoting Johnson v.

17 De Grandy, 512 U.S. 997, 1005-06 (1994)); see District of Columbia Court of Appeals v.

18 Feldman, 460 U.S. 462, 476 & 486 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,

19 416 (1923).

20 Review of state court decisions may only be conducted in the United States

21 Supreme Court. Feldman, 460 U.S. at 476 & 486; Rooker, 263 U.S. at 416; see 28

22 U.S.C. § 1257. The Rooker-Feldman jurisdictional bar applies even if the complaint

23 raises federal constitutional issues. Feldman, 460 U.S. at 483 n.16 & 486; Henrichs v.

24 Valley View Development, 474 F.3d 609, 613 (9th Cir. 2007). More specifically, the bar

25 applies if the challenge to the state court decision is brought as a § 1983 civil rights

26 action. See Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995); Worldwide Church of God

27 v. McNair, 805 F.2d 888, 893 n.4 (9th Cir. 1986).

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1 A complaint challenges a state court decision if the constitutional claims presented

2 to the district court are “inextricably intertwined” with the state court’s decision in a

3 judicial proceeding. Feldman, 460 U.S. at 483 n.16. “[T]he federal claim is inextricably

4 intertwined with the state court judgment if the federal claim succeeds only to the extent

5 that the state court wrongly decided the issues before it.” Pennzoil Co. v. Texaco Inc.,

6 481 U.S. 1, 25 (1987)(Marshall, J., concurring); see also Worldwide Church of God, 805

7 F.2d at 891-92.

8 Because Plaintiff appears to seek this Court’s assistance in overturning orders

9 made by state court judges, his claims are inextricably intertwined with the state court

10 proceedings, and are barred by the Rooker-Feldman doctrine.

11 E. Federal Tort Claim Act

12 Plaintiff also seeks monetary damages against the USPS under the Federal Tort

13 Claim Act (“FTCA”) based on his claims that the USPS lost his mail. (See Compl. at 7-

14 8.) The FTCA provides a remedy “for injury or loss of property or personal injury or

15 death caused by the negligent or wrongful act or omission” of a federal employee. 28

16 U.S.C. § 2672. However, the FTCA provides that the exclusive remedy for torts

17 committed by federal employees is a suit against the United States. 28 U.S.C.

18 § 2679(b)(1). The sole permissible Defendant in a claim under the FTCA is the United

19 States and thus, the Court DISMISSES any FTCA claims against the USPS. See 28

20 U.S.C. §§ 1346(b), 2679(a); Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir.

21 1984).

22 Moreover, to the extent that Plaintiff seeks to pursue claims of the purported

23 negligence loss of his mail against the United States under the FTCA, these claims must

24 be dismissed. The FTCA does not waive sovereign immunity as to claims arising out of

25 “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or

26 postal matter.” 28 U.S.C. § 2680(b). The Court lacks subject matter jurisdiction to hear

27 these claims and thus, these claims are DISMISSED without leave to amend.

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1 F. Leave to Amend

2 The Court denies Plaintiff leave to amend as futile. See Cahill v. Liberty Mut. Ins.

3 Co.., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an abuse of

4 discretion where further amendment would be futile); see also Robinson v. California Bd.

5 of Prison Terms, 997 F. Supp. 1303, 1308 (C.D. Cal.1998) (“Since plaintiff has not, and

6 cannot, state a claim containing an arguable basis in law, this action should be dismissed

7 without leave to amend; any amendment would be futile.”) (citing Newland v. Dalton, 81

8 F.3d 904, 907 (9th Cir. 1996)).

9 III. Conclusion and Orders

10 For the reasons explained, the Court:

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

12 (ECF No. 2).

13 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from

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

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

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

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

18 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

19 ASSIGNED TO THIS ACTION.

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

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

22 Sacramento, California, 94283-0001.

23 4. DISMISSES this civil action sua sponte pursuant for lack of subject matter

24 jurisdiction without leave to amend.

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1 5. CERTIFIES that an IFP appeal in this matter would not be taken in good

2 || faith pursuant to 28 U.S.C. § 1915(a)(3); and

3 6. DIRECTS the Clerk of Court to close the file.

4 IT IS SO ORDERED.

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6 || Dated: January 22, 2020 VU

7 YON. JOHN A. HOUSTON

g Ynited States District Judge

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