‘Tf a plaintiff does not take 2 || advantage of the opportunity to fix his complaint, a district court may convert the 3 || dismissal of the complaint into dismissal of the entire action.”’
How later courts described this case
- ‘Tf a plaintiff does not take 2 || advantage of the opportunity to fix his complaint, a district court may convert the 3 || dismissal of the complaint into dismissal of the entire action.”’
- “A district court should not dismiss a pro se complaint without leave to amend 21 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the 22 deficiencies of the complaint could not be cured by amendment.’”
- noting that claims dismissed with leave to amend which are not re-alleged in an 24 amended pleading may be “considered waived if not repled.”
- “[P]risoners who 12 serve their pretrial detention before … [Prop. 57’s] effective date, and those who serve 13 their detention thereafter, are not similarly situated.”
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
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10 GARY ALLEN CECIL, Case No.: 3:19-cv-02404-LAB-MSB
CDCR #AF-5647,
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ORDER:
Plaintiff,
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vs. (1) GRANTING MOTION
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TO PROCEED IN FORMA PAUPERIS
RALPH DIAZ,
14 [ECF No. 2]
Defendant.
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AND
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(2) DISMISSING COMPLAINT
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FOR FAILING TO STATE A CLAIM
18 PURSUANT TO 28 U.S.C.
§§ 1915(e)(2)(B) AND 1915A(b)(1)
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21 Gary Allen Cecil (“Plaintiff”), a state prisoner currently incarcerated at the Richard
22 J. Donovan Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se
23 in this civil rights action, which he filed pursuant to 42 U.S.C. § 1983. (See “Compl.,”
24 ECF No. 1 at 1.) In addition, Plaintiff has filed a Motion to Proceed In Forma Pauperis
25 (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).
26 / / /
27 / / /
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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 an RJD accounting official, along with a certified copy of his inmate
24 trust account statement. See ECF No. 3 at 1-3. Plaintiff’s statements show that he has
25 had no monthly deposits and has carried an average balance of zero in his account during
26 the 6-month period preceding the filing of this action and had no available funds to his
27 credit at the time of filing. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall
28 a prisoner be prohibited from bringing a civil action or appealing a civil action or
1 criminal judgment for the reason that the prisoner has no assets and no means by which to
2 pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C.
3 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based
4 solely on a “failure to pay . . . due to the lack of funds available to him when payment is
5 ordered.”).
6 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and
7 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350
8 balance of the filing fees due for this case must be collected by the California Department
9 of 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. Initial Screening per 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 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
5 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
6 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for
7 relief [is] . . . a context-specific task that requires the reviewing court to draw on its
8 judicial experience and common sense.” Id. The “mere possibility of misconduct” or
9 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting
10 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969
11 (9th Cir. 2009).
12 B. Plaintiff’s Allegations
13 Plaintiff states that he was a “290 registration requirement1” from a “1980 adult
14 rape conviction.” (Compl. at 2.) Plaintiff alleges that this requirement causes him to be
15 “discriminated against due to the emergency order placed in effect December 10, 2018 by
16 Secretary Ralph M. Diaz.” (Id.) Plaintiff is serving a sentence of “35 to life with
17 possibility of parole.” (Id.) He claims that he was designated “nonviolent.” (Id.)
18 Plaintiff alleges he “should be eligible for parole consideration and review per state
19 voter approval of Prop 572.” (Id.) However, Plaintiff alleges that he has been excluded
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1 Section 290 of the California Penal Code is entitled “Sex Offender Registration Act;
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lifetime duty to register within specified number of days following entrance into or
23 moving within a jurisdiction; offenses requiring mandatory registration.” Cal. Penal
Code § 290.
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25 2 After Proposition 57 was passed in November 2016, “the CDCR issued new regulations
that governed the ability of inmates to earn custody credits to advance their parole dates.”
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Rodriguez v. Kernan, 2019 WL 3425335, at *2 (E.D. Cal. July 30, 2019) (citing People v.
27 Contreras, 4 Cal.5th 349, 374 (2018), as modified (Apr. 11, 2018)). Section 3043(b) of
title 15 of the California Code of Regulation provides that “[a]ll eligible inmates shall
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1 from parole consideration due to the “290 PC requirement.” (Id.) Plaintiff alleges that
2 prisoners who are not required to register as sex offenders are eligible for parole
3 consideration and are “being given parole review dates” even though they have the “same
4 criminal threat and/or stalking offenses” as Plaintiff. (Id.) Plaintiff seeks injunctive
5 relief and monetary damages. (See id. at 7.)
6 C. 42 U.S.C. § 1983
7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential
8 elements: (1) that a right secured by the Constitution or laws of the United States was
9 violated, and (2) that the alleged violation was committed by a person acting under the
10 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,
11 1035-36 (9th Cir. 2015).
12 D. Heck Bar
13 Plaintiff’s Complaint is subject to sua sponte dismissal to the extent he either seeks
14 to challenge the application of Proposition 57 to the circumstances or validity of his
15 criminal conviction, or to the extent he objects to the length of his sentence—due to the
16 purported denial of his parole consideration and review. (See Compl. at 3.)
17 “Federal law opens two main avenues to relief on complaints related to
18 imprisonment: a petition for writ of habeas corpus, 28 U.S.C. § 2254, and a complaint
19 under ... 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam).
20 “Challenges to the validity of any confinement or to particulars affecting its duration are
21 the province of habeas corpus; requests for relief turning on circumstances of
22 confinement may be presented in a § 1983 action.” Id. (internal citation omitted). A
23 prisoner’s claims are within the core of habeas corpus if they challenge the fact or
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Credit, Rehabilitative Achievement Credit, and Educational Merit Credit in a manner
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consistent with the availability of staff, space, and resources, as well as the unique safety
27 and security considerations of each prison.” Cal. Code Regs. tit. 15, § 3043(b);
Rodriguez, 2019 WL 3425335, at *2.
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1 duration of his conviction or sentence. Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir.
2 2016) (en banc), cert. denied, 137 S. Ct. 645 (2017); Ramirez v. Galaza, 334 F.3d 850,
3 858 (9th Cir. 2003).
4 In Heck v. Humphrey, the United States Supreme Court held that a section 1983
5 claim cannot proceed when “a judgment in favor of the plaintiff would necessarily imply
6 the invalidity of his conviction or sentence.” Heck, 512 U.S. at 486-87. Accordingly, “a
7 state prisoner’s [section] 1983 action is barred (absent prior invalidation)—no matter the
8 relief sought (damages or equitable relief), no matter the target of the prisoner’s suit
9 (state conduct leading to conviction or internal prison proceedings)—if success in that
10 action would necessarily demonstrate the invalidity of confinement or its duration.”
11 Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Heck requires the plaintiff in a § 1983
12 action “first … to prove that his conviction had been invalidated in some way.”
13 McDonough v. Smith, 139 S. Ct. 2149, 2157 (2019) (citing Heck, 512 U.S. at 486). “This
14 favorable-termination requirement, the Court explained, applies whenever ‘a judgment in
15 favor of the plaintiff would necessarily imply’ that his prior conviction or sentence was
16 invalid.” Id. (quoting Heck, 512 U.S. at 487).
17 First, Plaintiff does not allege that his conviction or sentence has been previously
18 invalidated. Id. And to the extent he infers Defendants will not allow him to be eligible
19 for parole consideration, such claims, if successful, would affect the length of his
20 confinement. Ramirez, 334 F.3d at 856. Therefore, he cannot pursue these claims in a
21 civil rights action pursuant to 42 U.S.C. § 1983. He must instead seek relief in state court,
22 or in a federal habeas action, if he pursues it at all. See generally Trimble v. City of Santa
23 Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (civil rights complaint seeking habeas relief
24 should be dismissed without prejudice to bringing it as petition for writ of habeas
25 corpus).
26 E. Equal Protection claim
27 The Equal Protection Clause of the Fourteenth Amendment requires only that
28 persons who are similarly situated be treated alike. City of Cleburne v. Cleburne Living
1 Center, Inc., 473 U.S. 432, 439 (1985); Hartmann v. California Dep’t of Corr. & Rehab.,
2 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir.
3 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). To state a claim, Plaintiff
4 must show that Defendants intentionally discriminated against him based on his
5 membership in a protected class. Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at
6 1030; Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003). Sex offenders do not
7 constitute a suspect class for equal protection purposes. See United States v. LeMay, 260
8 F.3d 1018, 1030-31 (9th Cir. 2001).
9 Where no suspect class or fundamental right is implicated, equal protection claims
10 are subject to a rational basis review. See Village of Willowbrook v. Olech, 528 U.S. 562,
11 564 (2000); United States v. Juvenile Male, 670 F.3d 999, 1009 (9th Cir. 2012); Nelson v.
12 City of Irvine, 143 F.3d 1196, 1205 (9th Cir. 1998) (“Unless a classification trammels
13 fundamental personal rights or implicates a suspect classification, to meet constitutional
14 challenge the law in question needs only some rational relation to a legitimate state
15 interest.”). In the prison context, the right to equal protection is viewed through a
16 standard of reasonableness; that is, whether the actions of prison officials are “reasonably
17 related to legitimate penological interests.” Walker v. Gomez, 370 F.3d 969, 974 (9th Cir.
18 2004) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).
19 Thus, to the extent Plaintiff claims he is being denied “equal treatment” because he
20 is treated differently from persons convicted of nonviolent felonies who are not sex
21 offenders, he fails to state an equal protection claim. This is because Plaintiff fails to
22 allege both that he is similarly situated, and that there is no rational basis to treat
23 prisoners differently. “The Constitution permits qualitative differences in meting out
24 punishments and there is no requirements that two persons convicted of the same offense
25 receive identical sentences.” Williams v. Illinois, 399 U.S. 235, 243 (1970). “Inmates are
26 not entitled to identical treatment as other inmates merely because they are all inmates.”
27 McQuery v. Blodgett, 924 F.2d 829, 834–35 (9th Cir. 1991) (citing Norvell v. Illinois,
28 373 U.S. 420 (1963)). A mere demonstration of inequality is not enough to establish a
1 violation of the equal protection clause. Id.; see also McGinnis v. Royster, 410 U.S. 263,
2 269-70 (1973) (applying rational basis review to state statutory scheme that treated
3 inmates held in county facilities differently than those held in state facilities); see also
4 Sigur v. California Dep’t of Corr. & Rehab., 2018 WL 2734918, at *4 (E.D. Cal. June 7,
5 2018) (sua sponte dismissing claims that defendants treated non-violent sex offenders
6 differently under Proposition 57 pursuant to 28 U.S.C. § 1915A on equal protection
7 grounds); Mason v. Holt, 2016 WL 6136076, at *7 (E.D. Cal. Oct. 21, 2016) (dismissing
8 finding Prop. 57 prisoner’s equal protection challenge with regard to eligibility for work
9 credits because the distinctions made between county and prison custody credits as a
10 result of realignment are “not arbitrary and bear a rational relationship to a legitimate
11 government interest.”); People v. Lara, 54 Cal. 4th 896, 906 (2012) (“[P]risoners who
12 serve their pretrial detention before … [Prop. 57’s] effective date, and those who serve
13 their detention thereafter, are not similarly situated.”); Cruz, 207 Cal. App. 4th at 680
14 (holding that “[t]he distinction drawn by section 1170, subdivision (h)(6), between felony
15 offenders sentenced before, and those sentenced on or after, October 1, 2011, does not
16 violate equal protection.”).
17 F. Leave to Amend
18 In light of his pro se status, the Court will grant Plaintiff leave to amend his
19 pleading deficiencies, if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir.
20 2015) (“A district court should not dismiss a pro se complaint without leave to amend
21 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the
22 deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar v.
23 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)).
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1 III. Conclusion and Orders
2 Good cause appearing, the Court:
3 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
4 (ECF No. 2).
5 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from
6 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing
7 monthly payments from her account in an amount equal to twenty percent (20%) of the
8 preceding month’s income and forwarding those payments to the Clerk of the Court each
9 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2).
10 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER
11 ASSIGNED TO THIS ACTION.
12 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph
13 Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.
14 4. DISMISSES Plaintiff’s Complaint for failing to state a claim pursuant to 28
15 U.S.C. § 1915(e)(2) and § 1915A(b); and
16 5. GRANTS Plaintiff 45 days leave from the date of this Order in which to file
17 an Amended Complaint which cures all the deficiencies of pleading noted, if he can.
18 Plaintiff’s Amended Complaint must be complete in itself without reference to his
19 original pleading. Defendants not named and any claims not re-alleged in the Amended
20 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc.
21 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended
22 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.
23 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an
24 amended pleading may be “considered waived if not repled.”).
25 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter
26 a final Order dismissing this civil action based both on Plaintiff’s failure to state a claim
27 upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b),
28 and his failure to prosecute in compliance with a court order requiring amendment. See
1 || Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (‘Tf a plaintiff does not take
2 || advantage of the opportunity to fix his complaint, a district court may convert the
3 || dismissal of the complaint into dismissal of the entire action.”’).
4 6. The Clerk of Court is directed to mail Plaintiff a court approved civil rights
5 ||complaint form for his use in amending.
6 IT IS SO ORDERED.
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8 ||Dated: February 10, 2020 / ub | 4 ( Ly i □□
9 Hon. Lafry Alan Burns, Chief Judge
10 United States District Court
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