Arellano v. Doe 1

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8 UNITED STATES DISTRICT COURT

9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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RAUL ARELLANO, Case No.: 3:20-cv-1564-BAS-BGS

11 CDCR #AH-1995,

(1) GRANTING MOTION TO

12 Plaintiff, PROCEED IN FORMA PAUPERIS

[ECF No. 2];

v.

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AND

DOE #1,

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Defendant.

(2) DISMISSING COMPLAINT FOR

15 FAILING TO STATE A CLAIM

PURSUANT TO 28 U.S.C. §

16 1915(e)(2) AND 28 U.S.C. § 1915A(b)

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

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

19 filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (See ECF No. 1.)

20 In addition, Plaintiff has submitted a Motion to Proceed In Forma Pauperis (“IFP”)

21 pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2.)

22 I. MOTION TO PROCEED IFP

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

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

25 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See

27 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 not apply to persons granted leave to proceed

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

2 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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

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

5 Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185

6 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C.

7 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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

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

10 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

11 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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

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

14 in the account for the past six months, whichever is greater, unless the prisoner has no

15 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody

16 of the prisoner then collects subsequent payments, assessed at 20% of the preceding

17 month’s income, in any month in which his account exceeds $10, and forwards those

18 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce,

19 136 S. Ct. at 629.

20 In support of his IFP Motion, Plaintiff has submitted a prison certificate authorized

21 by an RJD accounting officer. (ECF No. 4 at 1.) See 28 U.S.C. § 1915(a)(2); S.D. Cal.

22 CivLR 3.2; King, 398 F.3d at 1119. This certificate attests that Plaintiff carried an average

23 monthly balance of $0.01 and had average monthly deposits of $0.00 to his account over

24 the six-month period immediately preceding the filing of his Motion. At the time of filing,

25 Plaintiff had only an available balance of $0.05. (See ECF No. 4 at 1.) Thus, the Court

26 GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and assesses no initial partial

27 filing fee at this time. However, the remaining balance of the $350 total fee owed in this

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1 case must be collected by the agency having custody of the prisoner and forwarded to the

2 Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).

3 II. SCREENING

4 A. Standard of Review

5 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a

6 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

7 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

8 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

9 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc)

10 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

11 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

12 the targets of frivolous or malicious suits need not bear the expense of responding.’”

13 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

14 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

15 “The standard for determining whether a plaintiff has failed to state a claim upon

16 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

17 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

18 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

19 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

20 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

21 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

22 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

23 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

24 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

25 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

26 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief

27 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

28 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

1 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

2 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

3 B. Plaintiff’s Allegations

4 Plaintiff alleges “on or around 2017 or 2018” his son came to visit him at RJD.

5 (Compl. at 3.) However, Plaintiff claims “Officer Doe #1” sent his son “back home

6 because [Doe #1] didn’t like [Plaintiff]” because Plaintiff filed grievances and lawsuits and

7 “because [Plaintiff] should not have visits.” (Id.)

8 Plaintiff claims that this unnamed officer “intimidated [his] son by telling him he

9 would make sure he won’t visit [Plaintiff] again.” (Id.) He further claims this officer told

10 his son that if he “visits [Plaintiff] again, he would hurt [Plaintiff].” (Id.) Plaintiff’s son

11 “left and didn’t tell [Plaintiff] anything about such incident.” (Id.)

12 On July 1, 2019 “or around there,” Plaintiff claims his son tried to visit him but “was

13 rejected because according to computer his visiting privileges [were] revoked.” (Id.)

14 Plaintiff claims that there was no explanation or reason given as to why his son’s visiting

15 privileges were revoked. (See id.)

16 On July 12, 2019, Plaintiff filed a grievance seeking reinstatement of his son’s

17 visiting privileges and to obtain an explanation for why they were initially revoked. (See

18 id.) On September 29, 2019, Plaintiff alleges that his “son briefly told [him] about the

19 incident and how the intimidation caused him not to try to visit [him] all that past year.”

20 (Id.) As a result, Plaintiff filed a “staff misconduct” grievance. (Id.)

21 Plaintiff received a response to his grievances in which he was told that his son had

22 to “re-apply for visit or to file a grievance.” (Id.) Plaintiff claims Doe #1 “committed an

23 adverse action by prevent [Plaintiff]” from “receiv[ing] visits” from his son. (Id.)

24 Plaintiff seeks injunctive relief, $100,000 in compensatory damages, $120,000 in

25 punitive damages, and $10,000 in “nominal damages.” (Id. at 7.)

26 C. Retaliation

27 A retaliation claim has five elements. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th

28 Cir. 2009). First, Plaintiff must allege that the retaliated-against conduct is protected.

1 Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012).2 Second, Plaintiff must allege

2 Defendants took adverse action against him.3 Rhodes, 408 F.3d at 567. Third, Plaintiff

3 must allege a causal connection between the adverse action and the protected conduct.

4 Watison, 668 F.3d at 1114. Fourth, Plaintiff must allege the “official’s acts would chill or

5 silence a person of ordinary firmness from future First Amendment activities.” Rhodes,

6 408 F.3d at 568 (internal quotation marks and emphasis omitted). Fifth, Plaintiff must

7 allege “that the prison authorities’ retaliatory action did not advance legitimate goals of the

8 correctional institution . . . .” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); Watison,

9 668 F.3d at 1114–15.

10 Here, Plaintiff’s claims of retaliation suffer from a number of deficiencies. Plaintiff

11 does not know the purported date that the alleged act of retaliation occurred. In fact,

12 Plaintiff is unaware if this act occurred in “2017 or 2018”4 and he does not know the

13 identity of the Defendant whom he accuses of acting in retaliation. As stated above,

14 Plaintiff must allege a causal connection between the adverse action and the protected

15 conduct. Watison, 668 F.3d at 1114. “[W]hile the ‘time and nature’ of an allegedly adverse

16 action can ‘properly be considered’ as circumstantial evidence of retaliatory intent, the

17 official alleged to have retaliated must also be alleged to have been aware of the plaintiff’s

18 protected conduct.” Sorrano’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1315–16 (9th Cir.

19 1989). Plaintiff does not allege how this Defendant knew Plaintiff filed grievances or

20 lawsuits or even which grievances or lawsuits this unnamed Defendant was allegedly

21 referring to when he spoke to Plaintiff’s son. “[M]ere speculation that defendants acted

22 out of retaliation is not sufficient.” Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014).

23 Thus, the Court finds that Plaintiff offers no plausible facts that would show a causal

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2 The filing of an inmate grievance is protected conduct. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir.

25 2005).

26 3 The adverse action need not be an independent constitutional violation. Pratt v. Rowland, 65 F.3d 802,

806 (9th Cir. 1995). “[T]he mere threat of harm can be an adverse action . . . .” Brodheim, 584 F.3d at

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4 In fact, Plaintiff purportedly did not even learn of this alleged retaliatory act until his son allegedly

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1 connection between the purported grievances and lawsuits filed by Plaintiff and the alleged

2 retaliatory action by the unknown Defendant.

3 Accordingly, the Court finds that Plaintiff has failed to state a plausible First

4 Amendment retaliation claim upon which relief may be granted.

5 D. Familial relationships

6 Plaintiff also claims that he has been denied his Fourteenth Amendment “right to

7 maintain certain familial relationships.” (Compl. at 2.) “The requirements of procedural

8 due process apply only to the deprivation of interests encompassed by the Fourteenth

9 Amendment’s protection of liberty and property.” Bd. of Regents v. Roth, 408 U.S. 564,

10 569 (1972). State statutes and prison regulations may grant prisoners liberty interests

11 sufficient to invoke due process protections. Meachum v. Fano, 427 U.S. 215, 223–27

12 (1976). However, the Supreme Court significantly limited the instances in which due

13 process can be invoked. Pursuant to Sandin v. Conner, 515 U.S. 472, 483 (1995), a prisoner

14 can show a liberty interest under the Due Process Clause of the Fourteenth Amendment

15 only if he alleges a change in confinement that imposes an “atypical and significant

16 hardship . . . in relation to the ordinary incidents of prison life.” Id. at 484 (citations

17 omitted).

18 In this case, Plaintiff has failed to establish a liberty interest protected by the

19 Constitution because he has not alleged, as he must under Sandin, facts related to the

20 conditions or consequences of his confinement which show “the type of atypical,

21 significant deprivation [that] might conceivably create a liberty interest.” Id. at 486.

22 Plaintiff alleges “Doe #1 violated this right” to see his son. (Compl. at 2.) While Plaintiff

23 also alleges that his son’s visitation rights have not been reinstated, Plaintiff has attached

24 copies of responses to his administrative grievances in which he has been told by prison

25 officials that it is the responsibility of his son to “contact the Visiting Department and

26 follow procedures.” (See Compl. at 12–13, Second Level Response Log No. RJD-C-19-

27 06625.) Moreover, Plaintiff was told that he “may inform your son to reapply to visit you,

28 as his visiting suspension expired on August 7, 2017.” (Id. at 13.) Plaintiff does not allege

1 that there was any attempt on his part, or on the part of his son, to reapply for his visitation

2 rights. In addition, Plaintiff does not allege that his son was prevented from applying for

3 visitation privileges as instructed. Moreover, the Due Process Clause does not guarantee a

4 right of unfettered visitation. See Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454,

5 460–61 (1989). Accordingly, the Court finds that Plaintiff has failed to allege a liberty

6 interest and thus, has failed to state a due process claim.

7 III. CONCLUSION AND ORDERS

8 Based on the foregoing, the Court:

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

10 (ECF No. 2).

11 2) DIRECTS the Secretary of the CDCR, or their designee, to collect from

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

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

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

15 amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

16 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

17 ASSIGNED TO THIS ACTION.

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

19 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.

20 4) DISMISSES Plaintiff’s Complaint (ECF No. 1) sua sponte for failing to state

21 a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

22 § 1915A(b)(1).

23 5) GRANTS Plaintiff until October 16, 2020 in which to file an Amended

24 Complaint which cures the deficiencies of pleading noted. Plaintiff’s Amended Complaint

25 must be complete by itself without reference to his original pleading. Defendants not

26 named and any claim not re-alleged in his Amended Complaint will be considered waived.

27 See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d

28 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v.

1 || Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave

2 |}to amend which are not re-alleged in an amended pleading may be “considered waived if

3 ||not repled’’).

4 Plaintiff's Amended Complaint, should he elect to file one, must be captioned as his

5 || “First Amended Complaint,” contain S.D. Cal. Civil Case No. 20-cv-01564 BAS (BGS) in

6 caption, and comply both with Fed. R. Civ. P. 8 and with S.D. Cal. CivLR 8.2.a. The

7 Court DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its form

8 || Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for Plaintiff’s use and to assist

9 in complying with LR 8.2.a’s requirements.

10 If Plaintiff fails to file an Amended Complaint by October 16, 2020, or if he files an

11 Amended Complaint that still fails to allege any plausible claim for relief against any

12 || Defendant that is timely, the Court will dismiss all untimely claims without further leave

13 amend pursuant to 42 U.S.C. § 1915(e)(2) and § 1915A.

14 IT IS SO ORDERED.

15 /

16 || DATED: September 4, 2020 Cy □ A! Hishasa

17 United States District Judge

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