Garcia v. Allison

1

2

3

4

5

6

7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

9

10 FELIPE GARCIA, Case No.: 21-cv-1991-MMA (RBM)

CDCR# H-74821,

11

ORDER: (1) GRANTING MOTION

Plaintiff,

12 TO PROCEED IN FORMA

vs. PAUPERIS; AND

13

KATHLEEN ALLISON, Secretary of

14 [Doc. No. 2]

CDCR; MARCUS POLLARD, Warden;

15 N, CASTRO; D. LEWIS; J. GOMEZ;

(2) DISMISSING CIVIL ACTION

J. GARCIA; A. DeLaVEGA,

16 PURSUANT TO 28 U.S.C.

Defendants. § 1915(e)(2)(B) AND

17

28 U.S.C. § 1915A(b)

18

19

20 Plaintiff Felipe Garcia, currently incarcerated at the Richard J. Donovan

21 Correctional Facility (“RJD”), and proceeding pro se, has filed this civil action pursuant

22 to 42 U.S.C. § 1983. See Doc. No. 1 at 1. In addition, Plaintiff has filed a Motion to

23 proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). Doc. No. 2.

24 MOTION TO PROCEED IFP

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

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

27

28

1 $402. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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

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

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

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

6 Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th

7 Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C.

8 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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

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

11 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

12 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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

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

15 balance in the account for the past six months, whichever is greater, unless the prisoner

16 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution

17 having custody of the prisoner then collects subsequent payments, assessed at 20% of the

18 preceding month’s income, in any month in which his account exceeds $10, and forwards

19 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

20 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR inmate

21 trust account statement and prison certificate. Doc. No. 3 at 1–4; 28 U.S.C. § 1915(a)(2);

22 CivLR 3.2; Andrews, 398 F.3d at 1119. This statement shows that Plaintiff has had an

23

24

25 1 For civil cases filed before December 1, 2020, the civil litigant bringing suit must pay the $350

statutory fee in addition to a $50 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference

26 Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June. 1, 2016). The $50 administrative

fee does not apply to persons granted leave to proceed IFP, however. Id. This administrative fee

27 increased to $52 for civil cases filed on or after December 1, 2020, but that portion still does not apply to

persons granted leave to proceed IFP. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees,

28

1 average monthly deposits of $197.03 and average monthly balance of $201.62 at the

2 time of filing. Doc. No. 3 at 1.

3 Based on this accounting, the Court GRANTS Plaintiff leave to proceed IFP and

4 assesses an initial partial filing fee of $40.32 pursuant to 28 U.S.C. § 1915(b)(1).

5 However, this initial fee need be collected only if sufficient funds are available in

6 Plaintiff’s account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4)

7 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action

8 or appealing a civil action or criminal judgment for the reason that the prisoner has no

9 assets and no means by which to pay the initial partial filing fee”); Bruce, 577 U.S. at 86;

10 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve”

11 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to

12 the lack of funds available to him when payment is ordered”). The remaining balance of

13 the $350 total fee owed in this case must be collected by the Secretary of the California

14 Department of Corrections and Rehabilitation (“CDCR”), or any subsequent agency

15 having custody of Plaintiff, and forwarded to the Clerk of the Court pursuant to the

16 installment payment provisions set out in 28 U.S.C. § 1915(b)(2).

17 SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) & 1915A

18 A. Standard of Review

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

20 preliminary screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

21 statutes, the Court must review and sua sponte dismiss an IFP complaint, and any

22 complaint filed by a prisoner seeking redress from a governmental entity, or officer or

23 employee of a governmental entity, which is frivolous, malicious, fails to state a claim, or

24 seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122,

25 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v.

26 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The

27 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need

28 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th

1 Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.

2 2012)).

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

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

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

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

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

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

9 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter,

10 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

11 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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

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

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

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

16 judicial experience and common sense.” Id. The “mere possibility of misconduct” or

17 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

18 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

19 (9th Cir. 2009).

20 B. Plaintiff’s Allegations

21 On February 1, 2019, the California Court of Appeal denied Plaintiff’s petition for

22 writ of habeas corpus that challenged the method in which he was criminally sentenced in

23 Kern County Superior Court. Doc. No. 1 at 6. However, this denial was without

24 prejudice to Plaintiff refiling the petition in Kern County Superior Court as the Appellate

25 Court found that there were “errors committed by the courts that sentenced Garcia on his

26 in-prison offenses.” Doc. No. 4 at 20.

27 Plaintiff alleges that on December 20, 2019, Kern County Superior Court “issued

28 an order granting petition for writ of habeas corpus and order[ed] a resentencing.” Doc.

1 No. 1 at 6. Plaintiff was resentenced on January 30, 2020. See id. On February 24,

2 2020, Plaintiff informed prison officials of the resentencing and “changes to the credit

3 vested by the Court.” Id. at 6–7. However, “no response was received.” Id. at 7.

4 Plaintiff filed grievances in March of 2020 notifying prison officials that despite

5 the resentencing, his earliest possible release date (”EPRD”) of February 13, 2025 had

6 not been changed. See id. at 7. On June 24, 2020, Plaintiff was interviewed by

7 Defendant Nancy Castro regarding his administrative grievance and Defendant Garcia

8 was present during this interview. On January 12, 2021, Defendant Garcia informed

9 Plaintiff that his EPRD had been changed to October 15, 2023. See id. However,

10 Plaintiff was later notified by Defendant Gomez-Godinez that his new EPRD was

11 changed to December 25, 2021. See id. at 8. The following day on October 28, 2021,

12 Plaintiff was notified that his EPRD was actually June 6, 2024. See id. Plaintiff asked

13 Defendant Gomez-Godinez why was his EPRD had “abruptly changed” but received no

14 response. Id.

15 Plaintiff seeks an “immediate release or speedier relief from illegal custody,”

16 compensatory, and punitive damages against each named Defendant. Id. at 17–18.

17 C. 42 U.S.C. § 1983

18 “Section 1983 creates a private right of action against individuals who, acting

19 under color of state law, violate federal constitutional or statutory rights.” Devereaux v.

20 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of

21 substantive rights, but merely provides a method for vindicating federal rights elsewhere

22 conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks

23 and citations omitted). “To establish § 1983 liability, a plaintiff must show both

24 (1) deprivation of a right secured by the Constitution and laws of the United States, and

25 (2) that the deprivation was committed by a person acting under color of state law.” Tsao

26 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

27 To the extent Plaintiff seeks damages based on allegations that he is being held in

28 “illegal custody,” see Doc. No. 1 at 17, his suit may not proceed as a civil rights action.

1 There are two methods for state prisoners to raise complaints related to their

2 imprisonment in federal court. See Muhammad v. Close, 540 U.S. 749, 750 (2004)

3 (“Federal law opens two main avenues to relief on complaints related to imprisonment . .

4 .”) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). In general, claims of

5 constitutional violations related to the “circumstances” of a prisoner’s confinement must

6 be brought in a civil rights action under § 1983, see id., while constitutional challenges to

7 the validity or duration of a prisoner’s confinement which seek either “immediate release

8 from prison” or the “shortening of [a state prison] term” must be raised in a petition for

9 federal habeas corpus under 28 U.S.C. § 2254, or through appropriate state relief.

10 Wilkinson v. Dotson, 544 U.S. 74, 78–79 (2005) (citations and internal quotation marks

11 omitted); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc) (“The Court

12 has long held that habeas is the exclusive vehicle for claims brought by state prisoners

13 that fall within the core of habeas, and such claims may not be brought in a § 1983

14 action.”) (citing Dotson, 544 U.S. at 81–82).2

15 In addition, the Court finds Plaintiff’s Complaint fails to state any plausible claim

16 for relief against either RJD’s Warden Pollard or CDCR Secretary Allison. Because

17 “vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each

18 Government-official defendant, through the official’s own individual actions, has

19 violated the Constitution.” Iqbal, 556 U.S. at 676; Palmer v. Sanderson, 9 F.3d 1433,

20 1437-38 (9th Cir. 1993) (noting there is no respondeat superior liability under 42 U.S.C.

21 § 1983). Supervisory officials like Allison and Pollard may only be held liable under

22 § 1983 if the plaintiff alleges their “personal involvement in the constitutional

23 deprivation, or . . . a sufficient causal connection between the supervisor’s wrongful

24

25

2 The Court takes judicial notice that Plaintiff has filed a petition for writ of habeas corpus in the

26 California Court of Appeals, Fourth Appellate District, Division 1 in November of 2021. See In re

Felipe Garcia, No. D079740, (Cal.App.4th, Nov. 30, 2021). Plaintiff’s petition attacking the “prior

27 prison terms enhancements” was denied but the Court noted that Plaintiff “appears entitled to relief

under Senate Bill No. 483 but not until it takes effect on January 1, 2022.” Id. It is not clear whether

28

1 conduct and the constitutional violation.” Keates v. Koile, 883 F.3d 1228, 1242‒43 (9th

2 Cir. 2018); Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). In other words, “a

3 supervisor is liable for the acts of his subordinates ‘if the supervisor participated in or

4 directed the violations, or knew of the violations of subordinates and failed to act to

5 prevent them.’” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009) (citations

6 omitted).

7 Plaintiff’s Complaint “pleads no factual content that allows the court to draw the

8 reasonable inference that [either Allison or Pollard] [are] liable for the misconduct

9 alleged.” Iqbal, 556 U.S. at 678. Plaintiff’s Complaint includes no specific factual

10 allegations with respect to either Warden Pollard or Secretary Allison, and he does not

11 describe what either of them either did, or failed to do, with respect to any of his claims

12 of due process violations. Id. at 679 (“Determining whether a complaint states a

13 plausible claim for relief [is] … a context-specific task.”).

14 As currently pleaded, nothing in Plaintiff’s Complaint plausibly suggests Pollard or

15 Allison “through [their] own individual actions, . . . violated the Constitution.” Iqbal,

16 556 at 676; see also Jones v. Community Redevelopment Agency of City of Los Angeles,

17 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least some

18 degree of particularity overt acts which defendants engaged in” in order to state a claim)

19 Therefore, Plaintiff’s Fourteenth Amendment claims against both Warden Pollard

20 and Secretary Allison must be dismissed sua sponte for failing to state a claim upon

21 which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2 )(B)(ii) and

22 § 1915A(b)(1). See Watison 668 F.3d at 1112.

23 In addition, “[p]risoners [do] have a First Amendment right to file grievances

24 against prison officials and to be free from retaliation for doing so.” Id. at 1114 (citing

25 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a

26 viable claim of First Amendment retaliation entails five basic elements: (1) An assertion

27 that a state actor took some adverse action against an inmate (2) because of (3) that

28 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his

1 First Amendment rights, and (5) the action did not reasonably advance a legitimate

2 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

3 Plaintiff does allege that he filed a number of inmate grievances. See Watison, 668

4 F.3d at 1114 (the filing of an administrative appeal is conduct protected by the First

5 Amendment). Plaintiff claims that he was interviewed by Defendant Castro on June 24,

6 2020 and she purportedly refused to correct his EPRD date and told him “if you don’t

7 like it sue me, you seem to know how, you have sued our officers in the past.” Doc. No.

8 1 at 13.

9 The timing of an allegedly adverse action “can properly be considered as

10 circumstantial evidence of retaliatory intent.” Pratt v. Rowland, 65 F.3d 802, 806 (9th

11 Cir. 1995). Plaintiff alleges that he was resentenced on December 31, 2021 by the Kern

12 County Superior Court which would have provided CDCR officials the basis for

13 correcting his EPRD, see Doc. No. 1 at 13, but this ruling is months after he claims

14 Defendant Castro refused to correct his EPRD. Therefore, Defendant Castro could not

15 have taken an “adverse action” against Plaintiff when the Superior Court had yet to rule

16 on the correct calculation of his EPRD.

17 Plaintiff also fails to allege that Defendants failed to “reasonably advance a

18 legitimate correctional goal.” Id. at 808 (“[Plaintiff] must show that there were no

19 legitimate correctional purposes motivating the actions he complains of.”). “A plaintiff

20 successfully pleads this element by alleging, in addition to a retaliatory motive, that the

21 defendant’s actions were arbitrary and capricious, or that they were ‘unnecessary to the

22 maintenance of order in the institution.’” Watison, 668 F.3d at 1114‒15 (quoting

23 Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984)).

24 Therefore, Plaintiff’s retaliation claims must be dismissed sua sponte for failing to

25 state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C.

26 § 1915(e)(2)(B)(ii) and § 1915A(b)(1).

27 D. Leave to Amend

28 While the Court has dismissed all of Plaintiff’s claims, it must also grant Plaintiff

1 leave to amend them–if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir.

2 2015) (“A district court should not dismiss a pro se complaint without leave to amend

3 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the

4 deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar v.

5 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)); Cervantes, 5 F.3d at 1277 (noting that a

6 time-barred action may not ordinarily be dismissed at pleading without leave to amend

7 unless “some fact, evident from the face of the complaint, support[s] the conclusion that

8 the plaintiff could not prevail, as a matter of law, on the equitable tolling issue.”).

9 Should Plaintiff’s Amended Complaint fail to allege facts sufficient to establish the

10 timeliness of his claims, however, he is hereby cautioned that the Court will dismiss the

11 those claims without further leave amend. Plaintiff is also cautioned that while Rule 8 of

12 the Federal Rules of Civil Procedure “does not require detailed factual allegations, . . . it

13 demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

14 Iqbal, 556 U.S. at 678 (internal quotation marks omitted).

15 CONCLUSION

16 Based on the foregoing, the Court GRANTS Plaintiff’s Motion to Proceed IFP

17 pursuant to 28 U.S.C. § 1915(a) and DIRECTS the Secretary of the CDCR, or their

18 designee, to collect from Plaintiff’s trust account the $350 filing fee owed in this case by

19 garnishing monthly payments from his account in an amount equal to twenty percent

20 (20%) of the preceding month’s income and forwarding those payments to the Clerk of

21 the Court each time the amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C.

22 § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME

23 AND NUMBER ASSIGNED TO THIS ACTION. The Court DIRECTS the Clerk of the

24 Court to serve a copy of this Order on Kathleen Allison, Secretary, CDCR, P.O. Box

25 942883, Sacramento, California, 94283-0001.

26 The Court DISMISSES Plaintiff’s Complaint sua sponte for failing to state a

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

28 § 1915A(b)(1). The Court GRANTS Plaintiff forty-five (45) days leave from the date of

1 || this Order in which to file an Amended Complaint which cures the deficiencies of

2 || pleading noted. Plaintiff's Amended Complaint must be complete by itself without

3 reference to his original pleading. Defendants not named and any claim not re-alleged in

4 Amended Complaint will be considered waived. See CivLR 15.1; Hal Roach Studios,

5 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

6 || pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.

7 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an

8 ||amended pleading may be “considered waived if not repled.”’).

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

10 || his “First Amended Complaint,” contain S.D. Cal. Civil Case No. 21-cv-1991 MMA

11 ||RBM in tts caption, and comply both with Federal Rule of Civil Procedure 8 and with

12 || Southern District of California Civil Local Rule 8.2.a. The Court DIRECTS the Clerk of

13 Court to provide Plaintiff with a blank copy of its form Complaint under the Civil

14 |/Rights Act, 42 U.S.C. § 1983 for Plaintiff's use and to assist him in complying with

15 || CivLR 8.2.a’s requirements.

16 IT IS SO ORDERED.

17 ||Dated: February 3, 2022

18 pMaihuh lM -£ Lh iphlr

19 HON. MICHAEL M. ANELLO

0 United States District Judge

21

22

23

24

25

26

27

28