“If a plaintiff does 6 || not take advantage of the opportunity to fix his complaint, a district court may convert the 7 || dismissal of the complaint into dismissal of the entire action.”
How later courts described this case
- “If a plaintiff does 6 || not take advantage of the opportunity to fix his complaint, a district court may convert the 7 || dismissal of the complaint into dismissal of the entire action.”
- noting that claims 26 dismissed with leave to amend which are not re-alleged in an amended pleading may be 27 “considered waived if not repled.”
- noting that screening pursuant to § 1915A “incorporates the familiar standard 13 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 14 12(b)(6)”
- discussing 28 5 U.S.C. § 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
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11 DONTE BAY McNEIL, Case No.: 3:21-cv-00860-JAH-AHG
CDCR #AY5635,
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ORDER:
Plaintiff,
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v. 1) GRANTING RENEWED MOTION
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TO PROCEED IN FORMA PAUERIS
WARREN L. MONTGOMERY,
15 [ECF No. 5];
ROBERT MARTINEZ, FRANCISCO
16 PARTIDA, KATHLEEN ALLISON,
2) DISMISSING COMPLAINT
17 Defendants. PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND 28 U.S.C. § 1915A(b)(1)
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19 On May 3, 2021, Donte Bay McNeil (“McNeil” or “Plaintiff”), a state inmate
20 currently incarcerated at Calipatria State Prison (“CSP”) located in Calipatria, California
21 and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See
22 Compl., ECF No. 1. Plaintiff did not pay the filing fee required by 28 U.S.C. § 1914(a) to
23 commence a civil action when he filed his Complaint; instead, he filed a Motion to Proceed
24 In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 3.
25 On June 1, 2021, the Court denied McNeil’s IFP motion and dismissed the case
26 without prejudice because McNeil had failed to provide the Court with the required
27 certified trust account statement. ECF No. 4; 28 U.S.C. § 1915(a)(2); Andrews v. King, 398
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1 F.3d 1113, 1119 (9th Cir. 2005). McNeil was given sixty days from the date of the Order
2 within which to either pay the civil filing fee or file a new IFP motion which included a
3 certified trust account statement. ECF No. 4. On July 6, 2021, McNeil filed a renewed IFP
4 motion. ECF No. 5.
5 I. Renewed Motion to Proceed in Forma Pauperis
6 All parties instituting any civil action, suit or proceeding in a district court of the
7 United States, except an application for writ of habeas corpus, must pay a filing fee of
8 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
9 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
10 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
11 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to
12 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
13 Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th
14 Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C.
15 § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
16 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a
17 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the
18 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
19 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
20 trust account statement, the Court assesses an initial payment of 20% of (a) the average
21 monthly deposits in the account for the past six months, or (b) the average monthly balance
22 in the account for the past six months, whichever is greater, unless the prisoner has no
23 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody
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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See
27 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 not apply to persons granted leave to proceed
28 IFP. Id.
1 of the prisoner then collects subsequent payments, assessed at 20% of the preceding
2 month’s income, in any month in which his account exceeds $10, and forwards those
3 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce,
4 577 U.S. at 84.
5 In support of his IFP Motion, McNeil has submitted a copy of his CDCR Inmate
6 Statement Report as well as a Prison Certificate completed by an accounting officer at RJD.
7 See ECF No. 5 at 5–8; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at
8 1119. These statements show McNeil has carried an average monthly balance of $210.83,
9 average monthly deposits to his account of $175.00 over the 6-month period immediately
10 preceding the filing of his Complaint, and a $415.10 available balance on the books at the
11 time of filing. See ECF No. 5 at 5–8.
12 Based on this accounting, the Court GRANTS McNeil’s Motion to Proceed IFP
13 (ECF No. 5) and assesses an initial partial filing fee of $42.16 pursuant to 28 U.S.C.
14 § 1915(b)(1). However, this initial fee need be collected only if sufficient funds are
15 available in McNeil’s account at the time this Order is executed. See 28 U.S.C.
16 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a
17 civil action or appealing a civil action or criminal judgment for the reason that the prisoner
18 has no assets and no means by which to pay the initial partial filing fee.”); Bruce, 577 U.S.
19 at 86; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve”
20 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the
21 lack of funds available to him when payment is ordered.”). The remaining balance of the
22 $350 total fee owed in this case must be collected by the agency having custody of McNeil
23 forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).
24 III. Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
25 A. Standard of Review
26 Because McNeil is a prisoner, his Complaint requires a pre-answer screening
27 pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Under these statutes, the Court
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1 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous,
2 malicious, fails to state a claim, or seeks damages from defendants who are immune. See
3 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C.
4 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28
5 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous
6 or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d
7 903, 920 n.1 (9th Cir. 2014) (citation omitted).
8 “The standard for determining whether Plaintiff has failed to state a claim upon
9 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
10 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
11 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
12 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
13 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
14 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted
15 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
16 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
18 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
19 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief
20 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial
21 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,
22 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility
23 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
24 B. Plaintiff’s Allegations
25 McNeil alleges that in early December of 2019, he asked Correctional Officer Diaz
26 for a work order to repair a chase that was leaking dirty water into his cell which he and
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1 other inmates were forced to clean up for about a month. Compl., ECF No. 1 at 3.
2 Defendant Robert Martinez performed work on the chase but the leak continued. Id.
3 On December 26, 2019, McNeil underwent knee surgery and was using crutches to
4 walk. Id. McNeil claims he and another inmate cleaned up water from the leaking chase
5 later that day when McNeil returned to his cell. Id.
6 On December 29, 2019, McNeil alleges he woke up during the night to use the
7 restroom and slipped in a large puddle of water that had accumulated from the leaking
8 chase. Id. McNeil fell, hitting his head and was “instantly in extreme pain in [his] back and
9 leg” and could not get off of the floor. Id. Medical staff took him to the infirmary where he
10 stayed for several days. Id. McNeil claims he continues to suffer from “extreme ongoing
11 pain and disruption of sleep due to back pain, nerve damage, [and] right knee pain.” Id.
12 C. 42 U.S.C. § 1983
13 “Section 1983 creates a private right of action against individuals who, acting under
14 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,
15 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive
16 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”
17 Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quotation marks and citations
18 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a
19 right secured by the Constitution and laws of the United States, and (2) that the deprivation
20 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc.,
21 698 F.3d 1128, 1138 (9th Cir. 2012).
22 D. Discussion
23 McNeil claims his Eighth Amendment rights have been violated by the unrepaired
24 chase leak which leaked water into his cell, and which in turn caused him to slip, fall and
25 injure himself. Compl., ECF No. 1 at 3. The Eighth Amendment protects prisoners from
26 inhumane methods of punishment and inhumane conditions of confinement, and “[p]rison
27 officials have a duty to ensure that prisoners are provided with adequate shelter, food,
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1 clothing, sanitation, medical care, and personal safety.” Farmer v. Brennan, 511 U.S. 825,
2 825 (1994); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). To state a cruel and
3 unusual punishment claim, Plaintiff must allege facts sufficient to satisfy two requirements.
4 Id. at 834; Iqbal, 556 U.S. 662, 678 (2009). First, he must allege his deprivation was
5 “objectively [and] ‘sufficiently serious.’” Farmer, 511 U.S. at 834 (quoting Wilson v.
6 Seiter, 501 U.S. 294, 298 (1991)); see also Peralta v. Dillard, 744 F.3d 1076, 1091 (9th
7 Cir. 2014). Prison conditions are not objectively serious unless they amount to
8 “unquestioned and serious deprivations of basic human needs,” or of the “minimal civilized
9 measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Wilson, 501
10 U.S. at 298-300; Grenning v. Miller-Stout, 739 F.3d 1235, 1238 (9th Cir. 2014 (citations
11 omitted). Second, Plaintiff’s Complaint “must contain sufficient factual matter” to
12 demonstrate that each Defendant acted with a sufficiently culpable state of mind, that of
13 “deliberate indifference.” Iqbal, 556 U.S. at 678; Wilson, 501 U.S. at 303; Peralta, 744
14 F.3d at 1091. A prison official acts with deliberate indifference if he “knows of and
15 disregards an excessive risk to the prisoner’s health and safety.” Farmer, 511 U.S. at 837.
16 In other words, the prison official “must both be aware of facts from which the inference
17 could be drawn that a substantial risk of serious harm exists [to the prisoner], and [the
18 prison official] must also draw that inference.” Id.
19 District courts in California have routinely found that “a single defective condition
20 – such as a slippery floor, a leaking roof, or a broken oven – by itself without additional
21 conditions contributing to a threat to an inmate’s safety does not create an objectively
22 sufficient and serious condition to implicate the Eighth Amendment.” Brown v. Flores, No.
23 18-cv-01578 LHK (PR) 2018 WL 9838120, at *2–*3 (N.D. Cal. Oct. 2018); see also
24 Jackson v. Arizona, 885 F.3d 639, 641 (9th Cir. 1989), superseded by statute on other
25 grounds as stated by Lopez v. Smith, 203 F.3d 1112, 1130 (9th Cir. 2000) (stating that
26 “slippery prison floors . . . do not state even an arguable claim for cruel and unusual
27 punishment”); Jacobs v. CDCR, No. 1:20-cv-00547-BAM (PC), 2021 WL 1264636, at *11
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1 (E.D. Cal. April 6, 2021) (dismissing complaint for failing to state a claim where disabled
2 Plaintiff alleged he slipped and fell in a puddle of polluted rainwater on his cell floor);
3 Collier v. Garcia, No. 17-cv-05841 LHK (PR), 2018 WL 659014, at *2 (N.D. Cal. Jan. 31,
4 2018) (dismissing complaint for failing to state a claim where Plaintiff slipped and fell in
5 a puddle of water in his cell which emanated from a leaking chase); Oubichon v. Carey,
6 No. 2:06-cv-2749-JAM-EFB P, 2017 WL 2162940, at *8 (C.D. Cal. May 17, 2017)
7 (granting summary judgment motion where Plaintiff alleged he slipped and fell in water
8 from an overflowing toilet). “[P]oorly maintained surfaces, wet floors, or leaky roofs do
9 not pose a substantial risk of serious harm supporting a constitutional violation and are
10 merely negligence claims . . . even where the hazard has existed, and been known to prison
11 officials, for years . . . .” Pauly v. California, No. 2018 WL 5920780, at *4 (E.D. Cal.
12 2018), citing Hall v. Frauehnehim, et al., No. 1:16-cv-00263-AWI-DLB PC, 2016 WL
13 2898712, at *1–*5 and n.1; see also Shannon v. Vannoy, No. 15-446-SDD-RLB, 2016 WL
14 1559583, at *1 (M.D. La. Apr. 19, 2016) (granting motion to dismiss where Plaintiff
15 alleged rainwater leaked into his cell and caused him to slip and fall while he was walking
16 to the bathroom); Seymore v. Dep’t of Corr. Servs., No. 11 Civ. 2254 (JGK), 2014 WL
17 641428, at *4 (S.D.N.Y. Feb. 18, 2014) (granting motion to dismiss where Plaintiff alleged
18 he was injured when he slipped and fell in water in the shower); Sylla v. City of N.Y., No.
19 04-cv-5692 (ILG), 2005 WL 3336460, at *1–*4 (E.D.N.Y. Dec. 8, 2005) (granting motion
20 to dismiss where Plaintiff alleged he slipped and fell in a flooded bathroom). “[I]n order
21 state a cognizable claim for relief, there must be a confluence of exacerbating conditions
22 such that the [leaking water] posed a serious, unavoidable threat to plaintiff’s safety.”
23 Coleman v. Frauenheim, No. 1:17-cv-10276-DAD-BAM (PC), 2018 WL 2463855, at *3
24 (E.D. Cal. June 1, 2018), citing Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir. 1998).
25 At best, McNeil has alleged negligence resulting from a failure to maintain the
26 leaking chase, but this does not amount to an “unquestioned and serious deprivations of
27 basic human needs,” or of the “minimal civilized measure of life’s necessities.” Rhodes,
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1 452 U.S. at 347. Accordingly, McNeil has not plausibly alleged an Eighth Amendment
2 claim. Iqbal, 556 U.S. at 678.
3 III. Conclusion and Orders
4 For the reasons explained, the Court:
5 1) GRANTS Plaintiff’s renewed Motion to Proceed IFP pursuant to 28 U.S.C.
6 Section 1915(a) [ECF No. 5].
7 2) DIRECTS the Secretary of the CDCR, or her designee, to collect from
8 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly
9 payments from his account in an amount equal to twenty percent (20%) of the preceding
10 month’s income and forwarding those payments to the Clerk of the Court each time the
11 amount in the account exceeds $10 pursuant to 28 U.S.C. Section 1915(b)(2). ALL
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 Kathleen
15 Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box
16 942883, Sacramento, California, 94283-0001.
17 4) DISMISSES Plaintiff’s Complaint for failing to state a claim upon which
18 relief may be granted pursuant to 28 U.S.C. Section 1915(e)(2)(B) and Section 1915A(b),
19 and GRANTS him sixty (60) days leave from the date of this Order in which to file an
20 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s
21 Amended Complaint must be complete by itself without reference to his original pleading.
22 Defendants not named and any claim not re-alleged in his Amended Complaint will be
23 considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner
24 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
25 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims
26 dismissed with leave to amend which are not re-alleged in an amended pleading may be
27 “considered waived if not repled.”).
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1 If Plaintiff fails to file an Amended Complaint within the time provided, the Court
2 || will enter a final Order dismissing this civil action based both on Plaintiff's failure to state
3 |}a claim upon which relief can be granted pursuant to 28 U.S.C. Section 1915(e)(2)(B) and
4 || Section 1915A(b), and his failure to prosecute in compliance with a court order requiring
5 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does
6 || not take advantage of the opportunity to fix his complaint, a district court may convert the
7 || dismissal of the complaint into dismissal of the entire action.”).
8 IT IS SO ORDERED.
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11 || Dated: August 20, 2021
12 VU
13 lon. John A. Houston
14 United States District Judge
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