noting that screening pursuant to Section 1915A “incorporates the familiar 13 standard applied in the context of failure to state a claim under Federal Rule of Civil 14 Procedure 12(b)(6)”
How later courts described this case
- noting that screening pursuant to Section 1915A “incorporates the familiar 13 standard applied in the context of failure to state a claim under Federal Rule of Civil 14 Procedure 12(b)(6)”
- explaining that the 28 “exclusion, denial of benefits, or discrimination” must occur “by reason of the plaintiff’s 1 disability” (citation omitted)
- discussing 28 U.S.C. Section 1915A(b)
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 FERDINAND REYNOLDS, Case No.: 3:20-cv-02081-LAB-AGS
CDCR #D-11772,
12
ORDER:
Plaintiff,
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vs. 1) GRANTING MOTION TO
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PROCEED IN FORMA PAUPERIS
15 (ECF No. 2);
D. CHALMERS; M. POLLARD,
16 Defendants. AND
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2) DISMISSING COMPLAINT FOR
18
FAILURE TO STATE A CLAIM
19 PURSUANT TO 28 U.S.C. §
1915(e)(2)(B) AND 28 U.S.C. §
20
1915A(b)
21
22 Plaintiff Ferdinand Reynolds (“Plaintiff”), currently incarcerated at Richard J.
23 Donovan Correctional Facility (“RJD”), is proceeding pro se in this action seeking
24 damages and injunctive relief for alleged violations of the Americans with Disabilities Act
25 (“ADA”), 42 U.S.C. Section 12132, and for violations of the Fourteenth Amendment under
26 42 U.S.C. Section 1983. (See generally ECF No. 1, Compl.)
27 Plaintiff did not prepay the $402 civil filing fee required by 28 U.S.C. Section
28 1914(a) at the time of filing and has instead filed a Motion to Proceed In Forma Pauperis
1 (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (See ECF No. 2.)
2 I. Motion to Proceed In Forma Pauperis
3 All parties instituting any civil action, suit or proceeding in a district court of the
4 United States, except an application for writ of habeas corpus, must pay a filing fee of
5 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
6 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
7 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);
8 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is
9 granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or
10 “installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775
11 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately
12 dismissed. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th
13 Cir. 2002).
14 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a
15 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the
16 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
17 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
18 trust account statement, the Court assesses an initial payment of 20% of (a) the average
19 monthly deposits in the account for the past six months, or (b) the average monthly balance
20 in the account for the past six months, whichever is greater, unless the prisoner has no
21 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody
22 of the prisoner then collects subsequent payments, assessed at 20% of the preceding
23 month’s income, in any month in which his account exceeds $10, and forwards those
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26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative
27 fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does
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1 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce,
2 136 S. Ct. at 629.
3 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust
4 account statement pursuant to 28 U.S.C. Section 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2.
5 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account activity, as
6 well as the attached prison certificate verifying his available balances. (See ECF No. 4, at
7 2-3.) These documents show that although Plaintiff carried an average monthly balance of
8 $21.99 and had average monthly deposits to his trust account of $16.67 for the six months
9 preceding the filing of this action, Plaintiff had an available balance of just $0.10 at the
10 time of filing. (See id.)
11 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and
12 declines to impose a partial filing fee pursuant to 28 U.S.C. Section 1915(b)(1) because his
13 prison certificate indicates he may currently have “no means to pay it.” See 28 U.S.C. §
14 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a
15 civil action or appealing a civil action or criminal judgment for the reason that the prisoner
16 has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d
17 at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal
18 of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds
19 available to him when payment is ordered.”). Instead, the Court directs the Secretary of
20 the CDCR, or her designee, to collect the entire $350 balance of the filing fees required by
21 28 U.S.C. Section 1914 and to forward them to the Clerk of the Court pursuant to the
22 installment payment provisions set forth in 28 U.S.C. Section1915(b)(1).
23 II. Sua Sponte Screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section
24 1915A(b)
25 A. Standard of Review
26 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-
27 answer screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b). Under
28 these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion
1 of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants
2 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
3 (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th
4 Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The purpose of [screening] is ‘to
5 ensure that the targets of frivolous or malicious suits need not bear the expense of
6 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler
7 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
8 “The standard for determining whether a plaintiff has failed to state a claim upon
9 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule
10 of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668
11 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
12 Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the familiar
13 standard applied in the context of failure to state a claim under Federal Rule of Civil
14 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual
15 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
16 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at
17 1121.
18 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
19 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
20 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief
21 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial
22 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,
23 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility
24 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
25 B. Plaintiff’s Factual Allegations
26 Plaintiff’s allegations focus on two separate issues: (1) an alleged violation of the
27 ADA by Defendant Chalmers, a correctional officer at RJD, and (2) an RJD policy
28 regarding use of prisoner funds to satisfy restitution obligations, approved by the warden
1 of RJD, Defendant Pollard, which Plaintiff alleges violates the equal protection clause of
2 the Fourteenth Amendment. (See Compl. at 3-5.)
3 First, as to his ADA claim, Plaintiff alleges that he has a verified hearing disability.
4 (See id. at 3.) Under a CDCR policy, prisoners with hearing disabilities allegedly “may be
5 allowed additional time to use the telephone in the Housing Unit so . . . long as they have
6 obtained permission from the Unit Control Booth Officer on duty . . . .” (See id. (citing 15
7 Cal. Code Reg. § 3282(h)(1)).) On May 15, 2020, Plaintiff had a 15-minute call scheduled
8 with his attorney. (See id.) Prior to the call, Plaintiff received permission from the relevant
9 control booth officer to use the phone for an extra five minutes due to his hearing disability.
10 (See id.)
11 When his phone call was finished 20 minutes later, Plaintiff was confronted by
12 Defendant Chalmers “who threatened me by telling me that my scheduled phone call was
13 supposed to be” only 15 minutes. (See id.) Plaintiff explained the CDCR policy allowing
14 him five extra minutes on account of his hearing disability, as well as a sanitation policy
15 adopted by the prison that delayed the start of his call by 10 minutes. (See id.) Defendant
16 Chalmers allegedly told Plaintiff that the phones he used were not intended to be used for
17 attorney phone calls, and told Plaintiff “that if he ever finds out that [Plaintiff has] been
18 using the Housing Unit Pay Phones in the future to speak to an attorney, then he would
19 punish me with further disciplinary actions[.]” (See id. at 4.) Plaintiff received a “warning
20 chrono” “confirming [Chalmers’] threat against [Plaintiff] that [he is] not to use the
21 Inmate’s authorized Pay Phone in the Housing Unit to call an attorney unless [he] first
22 obtain[s] authorization from the prison litigation coordinator.” (See id.) Additionally,
23 Plaintiff alleges that when he told Defendant Chalmers that was “in violation of the
24 American [sic] Disability Act by discriminating and harassing ADA inmates,” Chalmers
25 “ripp[ed] down the ADA Retaliation Bulletin from the Unit #5 Housing Unit Office
26 Window . . . .” (See id.)
27 Second, separately from his ADA claim, Plaintiff alleges that an RJD policy
28 regarding use of prisoner funds to satisfy restitution obligations violates the equal
1 protection clause of the Fourteenth Amendment. (See id. at 5.) According to Plaintiff,
2 when a prisoner who owes restitution or fines receives funds from friends and family, jobs,
3 or other sources, 55% of those funds are deducted and applied to a prisoner’s outstanding
4 restitution or fines. (See id.) If, however, a prisoner receives a settlement check from the
5 CDCR, “then [p]rison [o]fficials use the entire settlement check to pay off the [p]risoner’s
6 restitution/fine without ever deducting from such settlement check . . . .” (See id.
7 (emphasis in original).) Defendant Pollard, the warden of RJD, allegedly adopted this
8 policy, which Plaintiff argues results in unequal treatment in violation of the Fourteenth
9 Amendment. (See id.)
10 Plaintiff seeks $25,000 in damages from Defendant Chalmers and an order directing
11 that the warning chrono be removed from Plaintiff’s file. (See id. at 8.) Plaintiff also seeks
12 injunctive relief requiring RJD “to provide better accommodations for [h]earing [i]mpaired
13 [i]nmates to be able to use the payphones [sic] without being punished[.]” (See id.) With
14 respect to his second claim against Defendant Pollard, Plaintiff seeks $25,000 in
15 compensatory damages, $25,000 in punitive damages, and injunctive relief directing that
16 all inmates be required to pay 55% toward restitution and fines. (See id.)
17 C. Analysis
18 1. Defendant Chalmers
19 As mentioned, Plaintiff’s claim against Defendant Chalmers arises under the ADA.
20 Title II of the ADA provides that: “[N]o qualified individual with a disability shall, by
21 reason of such disability, be excluded from participation in or be denied the benefits of the
22 services, programs, or activities of a public entity, or be subjected to discrimination by any
23 such entity.” 42 U.S.C. § 12132; see also McGary v. Portland, 386 F.3d 1259, 1265 (9th
24 Cir. 2004). “The ADA thus not only prohibits public entities from discriminating against
25 the disabled, it also prohibits public entities from excluding the disabled from participating
26 in or benefiting from a public program, activity, or service ‘solely by reason of disability.’”
27 Lee v. City of Los Angeles, 250 F.3d 668, 690-91 (9th Cir. 2001) (emphasis in original).
28 The ADA applies to state prisons. See Pennsylvania Dep’t of Corr. v. Yeskey, 524
1 U.S. 206, 209 (1998). Nevertheless, ADA claims in the prison context “must be analyzed
2 ‘in light of effective prison administration.’” See Pierce v. Cnty. of Orange, 526 F.3d 1190,
3 1216 (9th Cir. 2008) (quoting Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994)).
4 Accordingly, to prevail on an ADA claim in the prison context, “inmates must show that
5 the challenged prison policy or regulation is unreasonable.” See id. at 1216-17 (citing
6 Gates, 39 F.3d at 1447).
7 As an initial matter, the Ninth Circuit has held that Title II of the ADA allows
8 prisoners to bring suit against state officials in their official, not individual, capacities. See
9 Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003). As a result, Plaintiff’s
10 claim against Defendant Chalmers in his individual capacity must be dismissed. See 28
11 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b).
12 The remainder of Plaintiff’s ADA claim must be dismissed because Plaintiff has not
13 alleged that he “was either excluded from participation in or denied the benefits of the
14 [prison’s] services, programs, or activities, or was otherwise discriminated against by the
15 [prison],” see McGary, 386 F.3d at 1265, “by reason of [his] disability.” See 42 U.S.C. §
16 12132 (emphasis added). Although Plaintiff alleges that he has a qualifying disability, he
17 does not allege that he has been denied access to the phones in the prison housing unit as a
18 result of his disability, or that he has been denied the extra time for calls that he alleges he
19 is entitled to under state regulations. (See Compl. at 3-4.) On the contrary, Defendant
20 Chalmers allegedly told Plaintiff not to use the housing unit phones to call attorneys
21 without prior authorization, not that Plaintiff could not use the phones in the housing unit
22 either generally or to speak to attorneys. (See Compl. at 4.) Nor does Plaintiff allege that
23 Defendant Chalmers’s denied Plaintiff the additional time he alleges he needs to use the
24 phones on account of his disability. (See id. at 4.) In the absence of allegations
25 demonstrating exclusion from participation, denial of benefits, or discrimination on
26 account of Plaintiff’s disability, Plaintiff has not stated a plausible claim for relief under
27 the ADA. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (explaining that the
28 “exclusion, denial of benefits, or discrimination” must occur “by reason of the plaintiff’s
1 disability” (citation omitted)); see also MacDonald v. Schriro, No. CIV-04-1001-PHX-
2 SMM (MHB), 2007 WL 4404880, at *2 (D. Ariz. Dec. 14, 2007) (alleging “constitutional
3 violation [that] were the result of general policies, customs, and practices unrelated to any
4 disability” was insufficient to state an ADA claim). Furthermore, Plaintiff has not
5 explained why the restrictions imposed on use of housing unit phones for attorney calls are
6 unreasonable. See Pierce, 526 F.3d at 1216-17 (citing Gates, 39 F.3d at 1447).
7 Finally, to recover damages under Title II of the ADA, Plaintiff must show
8 discriminatory intent. See Updike v. Multnomah Cnty., 870 F.3d 939, 950 (9th Cir. 2017)
9 (citing Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998), as amended (Oct.
10 8, 1998)). “To show intentional discrimination, this circuit requires that the plaintiff show
11 that a defendant acted with ‘deliberate indifference,’ which requires ‘both knowledge that
12 a harm to a federally protected right is substantially likely, and a failure to act upon that . . .
13 likelihood.” Id. at 950-51 (quoting Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th
14 Cir. 2001)). For the same reasons that Plaintiff fails to allege that Defendant Chalmers’
15 actions were taken on account of Plaintiff’s disability, Plaintiff has failed to allege
16 intentional discrimination on Chalmers’ part.
17 Accordingly, Plaintiff’s ADA claims are dismissed for failure to state a claim upon
18 which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1).
19 2. Defendant Pollard
20 Plaintiff’s second claim, an equal protection claim against Defendant Pollard, is
21 wholly unrelated to his ADA claim against Defendant Chalmers. (See Compl. at 3-5.)
22 Federal Rule of Civil Procedure 20 provides that a plaintiff may bring claims against
23 several defendants in the same action only if “any right to relief is asserted against them
24 jointly, severally, or in the alternative with respect to or arising out the same transaction,
25 occurrence, or series of transactions or occurrences” and “any question of law or fact
26 common to all defendants will arise in the action.” See Fed. R. Civ. P. 20(a)(2)(A)-(B).
27 Plaintiff’s Complaint do not plausibly allege that his claims against Defendants
28 Chalmers and Pollard arose out of the “same transaction, occurrence, or series of
1 transactions or occurrences.” See id. Accordingly, the Court finds that these claims are
2 misjoined and therefore applies Rule 21. See Coughlin v. Rogers, 130 F.3d 1348, 1350
3 (9th Cir. 1997). Under Rule 21, when the Court finds misjoinder, “on its own,” the Court
4 may “drop a party” or “sever any claim against a party.” See Fed. R. Civ. P. 21. The Court
5 therefore severs Plaintiff’s claims against Defendant Pollard from this action and directs
6 the Clerk of the Court to terminate Defendant Pollard as a party. Plaintiff may, if he
7 chooses, pursue these claims by filing a separate action against Defendant Pollard.
8 III. Conclusion and Orders
9 Good cause appearing, the Court:
10 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. Section
11 1915(a) (ECF No. 2).
12 2. DIRECTS the Secretary of the CDCR, or her designee, to collect from the
13 full $350 filing fee owed by collecting monthly payments from Plaintiff’s account in an
14 amount equal to twenty percent (20%) of the preceding month’s income and forwarding
15 those payments to the Clerk of the Court each time the amount in the account exceeds $10
16 pursuant to 28 U.S.C. Section 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY
17 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
18 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen
19 Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box
20 942883, Sacramento, California 94283-0001.
21 4. DISMISSES Defendant Pollard pursuant to Federal Rule of Civil Procedure
22 21 and without prejudice to re-filing in a separate action. The Court further DIRECTS the
23 Clerk of the Court to terminate Defendant Pollard as a party.
24 5. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which
25 relief may be granted pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii) and Section
26 1915A(b)(1).
27 6. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in
28 which to file an Amended Complaint which cures all the deficiencies of pleading noted as
1 ||to Defendant Chalmers only. Plaintiff's Amended Complaint must be complete by itself
2 || without reference to his original pleading. Defendants not named and any claim not re-
3 || alleged in his Amended Complaint will be considered waived. See S.D. Cal. Civ. L.R.
4 || 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir.
5 || 1989) ¢‘LA]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693
6 || F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are
7 ||not re-alleged in an amended pleading may be “considered waived if not repled.”).
8 If Plaintiff fails to file an Amended Complaint within the time provided, the Court
9 || will enter a final Order dismissing this civil action based on the Court’s lack of subject-
10 matter jurisdiction, Plaintiff's failure to state a claim upon which relief can be granted
11 |}/pursuant to 28 U.S.C. Sections 1915(e)(2)(B)Gi) and 1915A(b)(1), and his failure to
12 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427
13 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity
14 ||to fix his complaint, a district court may convert the dismissal of the complaint into
15 || dismissal of the entire action.”’).
16 IT IS SO ORDERED.
17 || Dated: January 29, 2021 / A / 4. (by
18 Hon. Larry A. Burns
19 United States District Judge
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