applying “cruel and 22 unusual punishment” protection to state action through Fourteenth Amendment
How later courts described this case
- applying “cruel and 22 unusual punishment” protection to state action through Fourteenth Amendment
- discussing 28 U.S.C. 2 § 1915(e)(2)
- noting that screening pursuant to § 1915A “incorporates the familiar standard 12 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 13 12(b)(6)”
- discussing 42 U.S.C. 24 § 1997e(e)
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 CHARLES T. KIRVIN, Case No.: 22cv227-LL-AHG
CDCR #AN-3903,
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ORDER: (1) GRANTING MOTION
Plaintiff,
13 TO PROCEED IN FORMA
vs. PAUPERIS AND (2) DIRECTING
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U.S. MARSHAL TO EFFECT
15 SERVICE OF SUMMONS AND
J, MORFFIN, Correctional Officer; COMPLAINT PURSUANT
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J. CEPADA, Correctional Officer; TO 28 U.S.C. § 1915(d) AND
17 O. LOPEZ, Correctional Officer; Fed. R. Civ. P. 4(c)(3)
K. ORTIZ, Correctional Officer,
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Defendants. [ECF No. 2]
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21 Plaintiff Charles T. Kirvin, proceeding pro se, is currently incarcerated at Richard J.
22 Donovan Correctional Facility (“RJD”) in San Diego, California, and has filed a civil rights
23 Complaint pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Kirvin alleges four
24 RJD Correctional Officers violated his Eighth and Fourteenth Amendment rights by
25 labeling and publicly identifying him as a child molester in the presence of his fellow
26 inmates. See id. at 3. Kirvin did not prepay the civil filing fee required by 28 U.S.C.
27 § 1914(a) at the time of filing, but instead has filed a Motion to Proceed In Forma Pauperis
28 (“IFP”) pursuant to 28 U.S.C. § 1915(a). ECF No. 2.
1 I. IFP Motion
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 of
4 $402. See 28 U.S.C. § 1914(a).1 The action may proceed despite a plaintiff’s failure to
5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The fee is not waived for prisoners, however.
8 If granted leave to proceed IFP, prisoners remain obligated to pay the entire fee in
9 “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v.
10 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their actions are
11 dismissed for other reasons. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281
12 F.3d 844, 847 (9th Cir. 2002).
13 To qualify, Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to
14 submit a “certified copy of the trust fund account statement (or institutional equivalent) for
15 . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
16 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
17 trust account statement, the Court assesses an initial payment of 20% of (a) the average
18 monthly deposits in the account for the past six months, or (b) the average monthly balance
19 in the account for the past six months, whichever is greater, unless the prisoner has no
20 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody
21 of the prisoner then collects subsequent payments, assessed at 20% of the preceding
22 month’s income, in any month in which his account exceeds $10, and forwards those
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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,
2 577 U.S. at 84.
3 In support of his IFP Motion, Kirvin has submitted a certified copy of his CDCR
4 Inmate Statement Report as well as a prison certificate authorized by a RJD Trust
5 Accounting Office Supervisor attesting as to his trust account transactions, deposits, and
6 balances for the six-month period preceding the filing of his Complaint. See ECF No. 2 at
7 4‒6; see also 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119.
8 These financial records show Kirvin carried a zero monthly balance, had no deposits
9 credited to his account over that time, and had an available balance of only $.20 to his
10 credit at the time of filing. See ECF No. 2 at 5, 6.
11 Therefore, the Court GRANTS Kirvin’s Motion to Proceed IFP (ECF No. 2) and
12 declines to assess any initial partial filing fee pursuant to 28 U.S.C. § 1915(a)(1) and (b)(1).
13 See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited
14 from bringing a civil action or appealing a civil action or criminal judgment for the reason
15 that the prisoner has no assets and no means by which to pay the initial partial filing fee.”);
16 Bruce, 577 U.S. at 86; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as
17 a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to
18 pay . . . due to the lack of funds available to him when payment is ordered.”). Instead the
19 Court DIRECTS the Secretary of the California Department of Corrections and
20 Rehabilitation (“CDCR”), or her designee, to collect the entire $350 balance of the filing
21 fee required by 28 U.S.C. § 1914 and to forward all payments to the Clerk of the Court
22 pursuant to the installment provisions set forth in 28 U.S.C. § 1915(b)(2).
23 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
24 A. Standard of Review
25 Because Kirvin is a prisoner and is proceeding IFP, his Complaint requires a pre-
26 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes,
27 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which
28 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are
1 immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C.
2 § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc));
3 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C.
4 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or
5 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d
6 903, 920 n.1 (9th Cir. 2014) (citation omitted).
7 “The standard for determining whether a plaintiff has failed to state a claim upon
8 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
9 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
10 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
11 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
12 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
13 12(b)(6)”).
14 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain
15 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
16 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted);
17 Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare
18 recitals of the elements of a cause of action, supported by mere conclusory statements, do
19 not suffice.” Iqbal, 556 U.S. at 678. And while the court “ha[s] an obligation where the
20 petitioner is pro se, particularly in a civil rights case, to construe the pleadings liberally and
21 to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7
22 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may
23 not “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents
24 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
25 B. Discussion
26 In his Complaint, Kirvin alleges Defendants J. Morffin and J. Cepada, both Tower
27 Guard Officers at RJD, “call[ed] and referr[ed] to [him] as a child molester over [the]
28 building speaker,” announced that “[y]’all need to jump that child molester off the yard,”
1 and “play[ed] recording of other staff personnel calling and referring to [him] as a child
2 molester,” “continuously from May 1, 2021 thr[ough] August 1, 2021.” See Compl. at 3.
3 Kirvin alleges Defendants O. Lopez and K. Ortiz, who later “started working as Tower
4 Guard” Officers in his building on October 1, 2021, also “play[ed] these same people or
5 recording[s] of the[] same people calling [him] a child molester” “knowing it puts [him] in
6 position of danger.” Id. Kirvin claims to have filed and exhausted a staff complaint
7 reporting Defendants’ actions as “unreasonably subject[ing] [him] to the threat of
8 substantial risk of serious harm at the hands of his fellow prisoners,” and alleges to have
9 suffered “a great deal of mental and emotional distress” due to his fear of being attacked.2
10 Id. at 3, 4.
11 The Ninth Circuit Court of Appeals has recognized that, while “verbal harassment
12 generally does not violate the Eighth Amendment,” particularly egregious verbal
13 harassment “calculated to and . . . caus[ing] [a prisoner] psychological damage” may be
14 sufficient to state a claim for a constitutional violation. Keenan v. Hall, 83 F.3d 1083, 1092
15 (9th Cir. 1996), amended on denial of reh’g, 135 F.3d 1318 (9th Cir. 1998). “[T]he Eighth
16 Amendment requires that prison officials ‘must take reasonable measures to guarantee the
17 safety of the inmates.’” United States v. Williams, 842 F.3d 1143, 1153 (9th Cir. 2016)
18 (“California’s . . . prisoners may be murderers, rapists, drug dealers, and child molesters,
19 but California is responsible for protecting even those sorts of people from murder by other
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2 The Court notes that Kirvin seeks punitive damages based on the emotional distress he
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alleges to have suffered as a result of Defendants’ actions, and that a prisoner may not
23 obtain compensatory damages for mental or emotional injury if his “physical injury” is de
minimis. See Oliver v. Keller, 289 F.3d 623, 629 (9th Cir. 2002) (discussing 42 U.S.C.
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§ 1997e(e)). However, the PLRA’s physical-injury requirement does not preclude
25 actionable claims for nominal or punitive damages premised on constitutional violations.
See id. at 629‒30; see also George v. City of Long Beach, 973 F.2d 706, 708 (9th Cir. 1992)
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(“In this Circuit, nominal damages must be awarded if a plaintiff proves a violation of his
27 constitutional rights.”); Smith v. Wade, 461 U.S. 30, 48, 54, 56 (“punitive damages are
awarded in the jury’s discretion” based on a determination that Defendants acted with evil
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1 prisoners.”). “[P]rison officials have a duty [under the Eighth Amendment] . . . to protect
2 prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S.
3 825, 833 (1994); see also Valandingham v. Bojorquez, 866 F.2d 1135, 1139 (9th Cir. 1989)
4 (labeling prisoner a “snitch” in the presence of other inmates is sufficient to state a claim
5 of deliberate indifference to an inmate’s safety); Morris v. Burkhouse, No. CV 19-5839-
6 SVW (KK), 2021 WL 2119497, at *4 (C.D. Cal. March 24, 2021) (finding correctional
7 officer’s false accusation of indecent exposure in order to label plaintiff as a sex offender
8 sufficient to demonstrate plaintiff faced “a substantial risk of harm to his health and
9 safety”) (citing Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) (“We can hardly
10 conceive of a state’s action bearing more ‘stigmatizing consequences’ than the labeling of
11 a prison inmate as a sex offender.”) (citation omitted)); Crane v. Gonzales, No. CV-F-03-
12 6339 OWW WMW P, 2008 WL 2168927, at *2 (E.D. Cal. May 23, 2008) (calling a
13 prisoner a “child molester” in presence of fellow inmates stated Eighth Amendment claim),
14 report and recommendation adopted, No. CV-F-03-6339 LJO WMW PC, 2008 WL
15 2676780 (E.D. Cal. June 30, 2008); Adams v. Tilton, No. 1:07-CV-00791 GSA PC, 2009
16 WL 2915100, at *13 (E.D. Cal. Sept. 9, 2009) (calling plaintiff a “Chester” in front of other
17 inmates is akin to calling him a “snitch”). If a prisoner faces a substantial risk of serious
18 harm, he need not wait until he actually suffers an attack before asserting a deliberate
19 indifference or threat-to-safety claim. See Helling v. McKinney, 509 U.S. 25, 33 (1993)
20 (“That the Eighth Amendment protects against future harm to inmates is not a novel
21 proposition.”).
22 The Court assumes as true Kirvin’s “well-pleaded factual allegations,” which while
23 “short and plain,” see Fed. R. Civ. P. 8(a)(2), suffice to state a plausible failure to protect
24 claim under the Eighth Amendment.3 See Iqbal, 556 U.S. at 678‒79. Therefore, the Court
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27 3 Kirvin also cites the Fourteenth Amendment as the basis for his failure to protect claims,
see Compl. at 3, but his pleading contains no facts to suggest he seeks to brings a separate
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1 finds Kirvin’s Complaint “sufficient to warrant ordering [Defendants] to file an answer.”
2 See Wilhelm, 680 F.3d at 1116. Accordingly, the Court will direct the U.S. Marshal to
3 effect service of summons and Kirvin’s Complaint upon Defendants J. Morffin, J. Cepada,
4 O. Lopez, and K. Ortiz on his behalf. See 28 U.S.C. § 1915(d) (“The officers of the court
5 shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P.
6 4(c)(3) (“[T]he court may order that service be made by a United States marshal or deputy
7 marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C.
8 § 1915.”).
9 III. Conclusion and Order
10 For the reasons explained, the Court:
11 (1) GRANTS Kirvin’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
12 (ECF No. 2);
13 (2) DIRECTS the Secretary of the CDCR, or her designee, to collect from
14 Kirvin’s prison trust account the $350 filing fee owed in this case by garnishing monthly
15 payments from his account in an amount equal to twenty percent (20%) of the preceding
16 month’s income and forwarding those payments to the Clerk of the Court each time the
17 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS
18 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO
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21 Amendment has been incorporated to apply to the state through the Fourteenth
Amendment. See Robinson v. California, 370 U.S. 660, 667 (1962) (applying “cruel and
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unusual punishment” protection to state action through Fourteenth Amendment). “Where
23 an amendment ‘provides an explicit textual source of constitutional protection against a
particular sort of government behavior,’ it is that Amendment that ‘must be the guide for
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analyzing the complaint.’” Picray v. Sealock, 138 F.3d 767, 770 (9th Cir. 1998) (citing
25 Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion)). Therefore, because Kirvin
is incarcerated and seeks to sue RJD correctional officers based on their alleged failure to
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ensure his safety, it is the Eighth Amendment’s proscription on cruel and unusual
27 punishments, and not “the more generalized notion of ‘substantive due process,’ [that] must
be the guide for analyzing [his] claims.” Albright, 510 U.S. at 273 (citing Graham v.
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1 THIS ACTION;
2 (3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail
3 on Kathleen Alison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-
4 0001, or by forwarding an electronic version to trusthelpdesk@cdcr.ca.gov;
5 (4) DIRECTS the Clerk to issue a summons as to Kirvin’s Complaint (ECF
6 No. 1) and forward it to Kirvin along with a blank U.S. Marshal Form 285 for Defendants
7 J. Morffin, J. Cepada, O. Lopez, and K. Ortiz. In addition, the Clerk will provide Kirvin
8 with a certified copy of this Order, a certified copy of his Complaint, and the summons so
9 that he may serve these Defendants. Upon receipt of this “IFP Package,” Kirvin must
10 complete the Form 285s as completely and accurately as possible, include an address
11 where each Defendant may be found and/or subject to service, and return them to the
12 United States Marshal according to the instructions the Clerk provides in the letter
13 accompanying his IFP package;
14 (5) ORDERS the U.S. Marshal to serve a copy of the Complaint and summons
15 upon Defendants J. Morffin, J. Cepada, O. Lopez, and K. Ortiz as directed by Kirvin on
16 the USM Form 285s provided to him. All costs of that service will be advanced by the
17 United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3);
18 (6) ORDERS Defendants J. Morffin, J. Cepada, O. Lopez, and K. Ortiz, once
19 served, to reply to Kirvin’s Complaint, and any subsequent pleading Kirvin may file in this
20 matter in which they are named as parties, within the time provided by the applicable
21 provisions of Federal Rule of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. §
22 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the right to reply
23 to any action brought by a prisoner confined in any jail, prison, or other correctional facility
24 under section 1983,” once the Court has conducted its sua sponte screening pursuant to
25 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination
26 based on the face on the pleading alone that Plaintiff has a “reasonable opportunity to
27 prevail on the merits,” defendant is required to respond); and
28 / / /
1 (7) ORDERS Kirvin, after service has been effected by the U.S. Marshal, to serve
2 ||upon Defendants J. Morffin, J. Cepada, O. Lopez, and K. Ortiz, or if appearance has been
3 entered by counsel, upon Defendants’ counsel, a copy of every further pleading, motion,
4 other document submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b).
5 || Kirvin must include with every original document he secks to file with the Clerk of the
6 || Court, a certificate stating the manner in which a true and correct copy of that document
7 |}was served on Defendants or their counsel, and the date of that service. See S.D. Cal.
8 ||CivLR 5.2. Any document received by the Court which has not been properly filed with
9 || the Clerk or which fails to include a Certificate of Service upon the Defendants, or their
10 || counsel, may be disregarded.
11 IT IS SO ORDERED.
12 || Dated: March 30, 2022 NO
13 nF
14 Honorable Linda Lopez
15 United States District Judge
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