“If a plaintiff does not take 4 || advantage of the opportunity to fix his complaint, a district court may convert the 5 || dismissal of the complaint into dismissal of the entire action.”’
How later courts described this case
- “If a plaintiff does not take 4 || advantage of the opportunity to fix his complaint, a district court may convert the 5 || dismissal of the complaint into dismissal of the entire action.”’
- “A district court should not 27 dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 28 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint 1 could not be cured by amendment.’”
- noting that claims dismissed with leave to amend which are not re-alleged in an 26 amended pleading may be “considered waived if not repled.”
- noting that screening pursuant to § 1915A “incorporates the familiar standard 28 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 1 12(b)(6)”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 SAMMY LEE MORRIS, Case No.: 3:19-cv-02378-MMA (AGS)
CDCR #C-80345,
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ORDER GRANTING MOTION TO
Plaintiff,
13 PROCEED IN FORMA PAUPERIS;
vs.
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[Doc. No. 2]
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G.A. GONZALES; D. TAMAYO; DISMISSING COMPLAINT FOR
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LAFLER DOMINIC; A. AGUIRRE; FAILING TO STATE A CLAIM
17 J. DURAN; C. MARTINEZ, PURSUANT TO 28 U.S.C. § 1915(e)(2)
18 Defendants. AND § 1915A(b)
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22 Plaintiff Sammy Lee Morris, currently incarcerated at California Health Care
23 Facility (“CHCF”) located in Stockton, California has filed a civil rights complaint
24 pursuant to 42 U.S.C. § 1983. Plaintiff claims Defendants, all correctional officers at the
25 Richard J. Donovan Correctional Facility (“RJD”) violated his constitutional rights when
26 he was previously housed at RJD on January 19, 2019. See Compl., Doc. No. 1 at 10-12.
27 Plaintiff has also filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28
28 U.S.C. § 1915(a). See Doc. No. 2.
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. 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,
15 the 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 CHCF accounting official, along with a certified copy of his
24 inmate trust account statement. See Doc. No. 2 at 6-9. Plaintiff’s statements show that
25 he has had no monthly deposits and has carried an average balance of zero in his account
26 during the 6-month period preceding the filing of this action and had no available funds
27 to his credit at the time of filing. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no
28 event shall a prisoner be prohibited from bringing a civil action or appealing a civil action
1 or criminal judgment for the reason that the prisoner has no assets and no means by
2 which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28
3 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case
4 based solely on a “failure to pay . . . due to the lack of funds available to him when
5 payment is ordered.”).
6 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP and assesses no
7 initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of
8 the filing fees due for this case must be collected by the California Department of
9 Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court
10 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
11 II. Screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
12 A. Standard of Review
13 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-
14 Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
15 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of
16 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants
17 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
18 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
19 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that
20 the targets of frivolous or malicious suits need not bear the expense of responding.’”
21 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford
22 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
23 “The standard for determining whether a plaintiff has failed to state a claim upon
24 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
25 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668
26 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
27 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
28 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
1 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,
2 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
3 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
4 B. Plaintiff’s Allegations
5 On January 19, 2019, Plaintiff claims Defendant Gonzalez, the “Control Booth
6 Officer,” said she observed Plaintiff “standing at his door masturbating with the light on.”
7 Compl. at 12. A rules violation report (“RVR”) was issued and “reviewed” by
8 Defendants Martinez and Duran. Id. Plaintiff alleges Martinez and Duran “conspired”
9 with Gonzalez to “push the report forward” and convinced Defendants Aguirre and
10 Tamayo to classify the RVR as “serious.” Id.
11 Plaintiff was placed in administrative segregation (“ad-seg”) “where he had a
12 ‘yellow placard’ covering the outside of his cell door window for other inmates and staff
13 to recognize the occupant of the cell was some type of a sex offender.” Id. Plaintiff was
14 also “forced to wear a specialized known ‘indecent exposure control jumpsuit.’” Id. A
15 “padlock” was attached to the back of the jumpsuit which required Plaintiff to find a staff
16 member “with a key to the padlock” in order for Plaintiff to use the bathroom. Id. at 13.
17 Plaintiff was required to wear this jumpsuit “every time he left his cell to go to therapy
18 groups, medical, and dental appointments.” Id. Plaintiff also wore the jumpsuit on the
19 exercise yard where other inmates “viewed him as a sexual offender” and called him
20 “nasty names.” Id.
21 On March 15, 2019, Plaintiff was found guilty by Senior Hearing Officer
22 Lieutenant Valdez.1 See id. Plaintiff filed a grievance appealing this decision and was
23 later found “not guilty” and the RVR was ordered to be “reissued and reheard.” Id.
24 Plaintiff claims Defendant Dominic conspired with Aguirre to “push the mental
25 health assessment forward to have it heard” so that Plaintiff would be found guilty and
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1 “to send [Plaintiff] to the indecent exposure pilot program at California State Prison,
2 Corcoran.” Id. Dominic also stated that Plaintiff has “prior RVRs for the same offense
3 and as such is aware of the potential for disciplinary consequences.” Id. Plaintiff alleges
4 Dominic’s “acts were willful, intentional, malicious, wanton, and despicable in conscious
5 disregard for Plaintiff’s rights.” Id.
6 Plaintiff has now been placed in the “high level care, the California Health Care
7 Facility Psychiatric Inpatient Program (“CHCH-PIP”). Id. Plaintiff seeks $300,000 in
8 compensatory damages, $450,000 in punitive damages, and $5000 in nominal damages.
9 See id. at 20.
10 C. 42 U.S.C. § 1983
11 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights,
12 privileges, or immunities secured by the Constitution and laws” of the United States.
13 Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must
14 allege two essential elements: (1) that a right secured by the Constitution or laws of the
15 United States was violated, and (2) that the alleged violation was committed by a person
16 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of
17 Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
18 D. Eighth Amendment Claim
19 Plaintiff alleges that his Eighth Amendment rights were violated by Defendants
20 when they “requir[ed] him to wear a control jumpsuit identifying him as a ‘sexual
21 predator-offender’” and also subjecting him to “degrading name calling and threats of
22 violence and death.” Compl. at 15-16. Plaintiff does not allege that he was actually
23 physically assaulted while housed at RJD and at the time he filed this action he was no
24 longer housed at RJD. See id. at 1, 16.
25 To state an Eighth Amendment claim based on a deprivation of humane conditions
26 of confinement, Plaintiff must allege facts sufficient to satisfy two requirements. Farmer
27 v. Brennan, 511 U.S. 825, 834 (1994); Iqbal, 556 U.S. at 678. “First, the deprivation
28 alleged must be, objectively, ‘sufficiently serious.’” Id. (quoting Wilson v. Seiter, 501
1 U.S. 294, 298 (1991)); see also Peralta v. Dillard, 744 F.3d 1076, 1091 (9th Cir. 2014).
2 Prison conditions are not objectively serious unless they amount to “unquestioned and
3 serious deprivations of basic human needs,” or of the “minimal civilized measure of life’s
4 necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Wilson, 501 U.S. at 298-
5 300; Grenning v. Miller-Stout, 739 F.3d 1235, 1238 (9th Cir. 2014) (citation omitted).
6 “After incarceration, only the unnecessary and wanton infliction of pain ... constitutes
7 cruel and unusual punishment forbidden by the Eighth Amendment.” Watison v. Carter,
8 668 F.3d 1108, 1112 (9th Cir. 2012) (citing Whitley v. Albers, 475 U.S. 312, 319 (1986))
9 (internal quotations omitted). “[A]mong unnecessary and wanton inflictions of pain are
10 those that are totally without penological justification.” Hope v. Pelzer, 536 U.S. 730,
11 737 (2002) (internal quotations and citations omitted).
12 Second, Plaintiff’s Complaint “must contain sufficient factual matter” to
13 demonstrate that Defendants acted with a sufficiently culpable state of mind, that of
14 “deliberate indifference.” Iqbal, 556 U.S. at 678; Wilson, 501 U.S. at 303; Peralta, 744
15 F.3d at 1091. A prison official acts with deliberate indifference if he “knows of and
16 disregards an excessive risk to the prisoner’s health and safety.” Farmer, 511 U.S. at
17 837. In other words, the prison official “must both be aware of facts from which the
18 inference could be drawn that a substantial risk of serious harm exists [to the prisoner],
19 and [the prison official] must also draw the inference.” Id.
20 Plaintiff fails to identify any Defendant who was purportedly responsible for
21 deciding to place him in the jumpsuit, for labelling him as a sex offender, or that they had
22 any knowledge of the circumstances Plaintiff alleges he faced on the exercise yard. “The
23 inquiry into causation must be individualized and focus on the duties and responsibilities
24 of each individual defendant whose acts or omissions are alleged to have caused a
25 constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), citing
26 Rizzo v. Goode, 423 U.S. 362, 370-71 (1976); Berg v. Kincheloe, 794 F.2d 457, 460 (9th
27 Cir. 1986); Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999)
28 (“Causation is, of course, a required element of a § 1983 claim.”). A person deprives
1 another “of a constitutional right, within the meaning of section 1983, if he does an
2 affirmative act, participates in another’s affirmative acts, or omits to perform an act
3 which he is legally required to do that causes the deprivation of which [the plaintiff
4 complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff has not
5 stated an Eighth Amendment claim against the Defendants because he fails to identify
6 how any of the named Defendants were the cause of, or even aware of, the actions
7 Plaintiff alleges occurred.
8 D. Fourteenth Amendment Equal Protection Claims
9 Plaintiff claims he has an “equal protected right to be treated equally and fairly as
10 similarly situated others as provided within the ‘Equal Protection Clause.’” Compl. at 18.
11 The Fourteenth Amendment’s Equal Protection Clause requires that persons
12 similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473
13 U.S. 432, 439; Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123
14 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v.
15 Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be
16 established in two ways. The first method requires a plaintiff to show that the defendant
17 has intentionally discriminated against the plaintiff on the basis of his membership in a
18 protected class. Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at 1030; Serrano v.
19 Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Thornton v. City of St. Helens, 425 F.3d
20 1158, 1166-67 (9th Cir. 2005); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir.
21 2001). Under this theory of equal protection, Plaintiff must allege that Defendants’
22 actions were a result of his membership in a suspect class such as race, religion, or
23 alienage. Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005).
24 Here, Plaintiff does not allege to be a member of any suspect class, and he fails to
25 allege Defendants have denied him any rights based on his membership in any suspect
26 class.
27 To the extent his claims do not involve a suspect classification, Plaintiff may
28 establish an equal protection claim only if he alleges facts sufficient to plausibly show
1 Defendants intentionally treated similarly situated inmates differently without a rational
2 basis for doing so. See Engquist v. Oregon Department of Agriculture, 553 U.S. 591,
3 601-02 (2008); see also Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); San
4 Antonio School District v. Rodriguez, 411 U.S. 1 (1972); Lazy Y Ranch Ltd. v. Behrens,
5 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 F.3d 478,
6 486 (9th Cir. 2008). But to state an equal protection claim under this “class of one”
7 theory, he must allege facts to plausibly show that: (1) he is a member of an identifiable
8 class; (2) he was intentionally treated differently from others similarly situated; and (3)
9 there is no rational basis for the difference in treatment. Nurre v. Whitehead, 580 F.3d
10 1087, 1098 (9th Cir. 2009) (citing Village of Willowbrook, 528 U.S. at 564). He must
11 further allege discriminatory intent. See Washington v. Davis, 426 U.S. 229, 239-240
12 (1976); Serrano, 345 F.3d at 1081-82; Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir.
13 1997).
14 In support of this claim, Plaintiff claims that he was treated differently than other
15 inmates who were housed in administrative segregation. See Compl. at 18. However,
16 Plaintiff is clearly not “similarly situated” to all other inmates housed in administrative
17 segregation who are housed there for a variety of different reasons. Plaintiff does not
18 allege that Defendants treated him differently from other inmates who were also
19 designated sexual offenders and placed in administrative segregation. The Court finds
20 that Plaintiff has failed to allege facts that are insufficient to plead an equal protection
21 claim. Thus, Plaintiff’s Fourteenth Amendment equal protection claims must be
22 DISMISSED for failing to state a claim upon which relief could be granted.
23 E. Leave to Amend
24 In light of his pro se status, however, the Court grants Plaintiff leave to file an
25 Amended Complaint in order to address the pleading deficiencies identified in this Order.
26 See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not
27 dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C.
28 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint
1 could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th
2 Cir. 2012)).
3 III. Conclusion and Orders
4 Good cause appearing, the Court:
5 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
6 (Doc. No. 2).
7 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from
8 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing
9 monthly payments from her account in an amount equal to twenty percent (20%) of the
10 preceding month’s income and forwarding those payments to the Clerk of the Court each
11 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2).
12 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER
13 ASSIGNED TO THIS ACTION.
14 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph
15 Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.
16 4. DISMISSES Plaintiff’s Complaint for failing to state a claim pursuant to 28
17 U.S.C. § 1915(e)(2) and § 1915A(b); and
18 5. GRANTS Plaintiff 45 days leave from the date of this Order in which to file
19 an Amended Complaint which cures all the deficiencies of pleading noted, if he can.
20 Plaintiff’s Amended Complaint must be complete in itself without reference to his
21 original pleading. Defendants not named and any claims not re-alleged in the Amended
22 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc.
23 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended
24 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.
25 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an
26 amended pleading may be “considered waived if not repled.”).
27 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter
28 a final Order dismissing this civil action based both on Plaintiff’s failure to state a claim
1 upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b),
2 ||and his failure to prosecute in compliance with a court order requiring amendment. See
3 || Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take
4 || advantage of the opportunity to fix his complaint, a district court may convert the
5 || dismissal of the complaint into dismissal of the entire action.”’).
6 6. The Clerk of Court is directed to mail Plaintiff a court approved civil rights
7 ||complaint form for his use in filing his amended complaint.
8 IT IS SO ORDERED.
9 || DATE: January 29, 2020 a Vt whl WU — [ hiht
10 HON. MICHAEL M. ANELLO
United States District Judge
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