“Ifa plaintiff does not take advantage 17 the opportunity to fix his complaint, a district court may convert the dismissal of the 18 ||}complaint into dismissal of the entire action.”
How later courts described this case
- “Ifa plaintiff does not take advantage 17 the opportunity to fix his complaint, a district court may convert the dismissal of the 18 ||}complaint into dismissal of the entire action.”
- noting that screening pursuant to § 1915A “incorporates the familiar standard 6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 7 12(b)(6)”
- discussing 28 U.S.C. § 1915A(b)
- “[A]n amended pleading 9 supersedes the original.’”’
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 PAGE, Michael, Case No.: 3:22-cv-1664-RBM-BGS
CDCR #D-79552,
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ORDER:
Plaintiff,
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vs. (1) GRANTING MOTION TO
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PROCEED IN FORMA PAUPERIS
15 [ECF No. 2]; AND
W.L. MONTGOMERY,
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Defendant. (2) DISMISSING COMPLAINT FOR
17 FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
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& 28 U.S.C. § 1915A(b)
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21 Michael Page (“Plaintiff”), currently incarcerated at Calipatria State Prison (“CAL”)
22 located in Calipatria, California and proceeding pro se, has filed a civil rights complaint
23 pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1). Plaintiff claims CAL Warden
24 W.L. Montgomery (“Defendant”) violated his right to due process by classifying him as a
25 violent offender and denying him “non-violent early parole consideration.” (Id. at 3.) In
26 addition, Plaintiff has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28
27 U.S.C. § 1915(a) (ECF No. 2).
28 / / /
1 I. Motion to Proceed IFP
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 $400.1 See 28 U.S.C. § 1914(a). 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). However, a prisoner who is granted leave to
8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
9 Bruce v. Samuels, 577 U.S. 82, 83–84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185
10 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C.
11 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a
13 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the
14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
16 trust account statement, the Court assesses an initial payment of 20% of (a) the average
17 monthly deposits in the account for the past six months, or (b) the average monthly balance
18 in the account for the past six months, whichever is greater, unless the prisoner has no
19 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody
20 of the prisoner then collects subsequent payments, assessed at 20% of the preceding
21 month’s income, in any month in which his account exceeds $10, and forwards those
22 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
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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. 2020). The additional $52 administrative fee does not
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1 In support of his IFP Motion, a copy of Plaintiff’s prison trust account statement has
2 been filed. See ECF No. 3; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398
3 F.3d at 1119. This certificate shows that Plaintiff had an available balance of $0.00 at the
4 time of filing. See ECF No. 3. Thus, the Court assesses no initial partial filing fee at this
5 time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be
6 prohibited from bringing a civil action or appealing a civil action or criminal judgment for
7 the reason that the prisoner has no assets and no means by which to pay the initial partial
8 filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C.
9 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based
10 solely on a “failure to pay . . . due to the lack of funds available to him when payment is
11 ordered.”).
12 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2),
13 declines to exact the initial filing fee because his trust account statement indicates he may
14 have no means to pay it and directs the Secretary of the CDCR or their designee, to instead
15 collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward
16 them to the Clerk of the Court pursuant to the installment payment provisions set forth in
17 28 U.S.C. § 1915(b)(1). See id.
18 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
19 A. Standard of Review
20 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a
21 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
22 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it,
23 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who
24 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
25 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
26 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that
27 the targets of frivolous or malicious suits need not bear the expense of responding.’”
28 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).
1 “The standard for determining whether a plaintiff has failed to state a claim upon
2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
4 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
5 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
7 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted
8 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
9 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
11 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
12 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief
13 [is] ... a context-specific task that requires the reviewing court to draw on its judicial
14 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,
15 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility
16 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
17 B. Plaintiff’s Factual Allegations
18 Plaintiff alleges Defendant “violated Plaintiff’s due process rights by classifying
19 Plaintiff as a violent offender.” (Compl. at 3.) As a result of this classification, Defendant
20 allegedly denied Plaintiff “access to non-violent early parole consideration under
21 Proposition 57.” (Id.)
22 C. 42 U.S.C. § 1983
23 “Section 1983 creates a private right of action against individuals who, acting under
24 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,
25 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive
26 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”
27 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations
28 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a
1 right secured by the Constitution and laws of the United States, and (2) that the deprivation
2 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc.,
3 698 F.3d 1128, 1138 (9th Cir. 2012).
4 D. Violent Felonies
5 As an initial matter Plaintiff appears to claim he was convicted of non-violent
6 felonies and thus, should have been given early parole consideration under Proposition 572.
7 While the allegations in Plaintiff’s Complaint are sparse, he has attached as exhibits his
8 administrative grievance history which provides a larger factual background to his claims.
9 Specifically, Plaintiff filed a grievance claiming that he was convicted of second-degree
10 robbery in 1997 which, at that time, was not considered a violent felony. See Pl.’s Ex.,
11 ECF No. 4 at 16, Inmate/Parolee Appeal, CDCR 602 Log No. CAL-C-20-00395, dated
12 March 10, 2020. According to the response to his grievance, second degree robbery
13 became a violent offense in 2000. Id., ECF No. 4 at 15, First Level Appeal Response dated
14 Apr. 15, 2020. Plaintiff’s conviction had an “enhancement of [penal code] 122022.5(a)
15 use of a firearm which is a violent [offense] pursuant to [penal code] 667.5(c).” Id. It was
16 determined that the “violent enhancement makes the offense and the offender violent,
17 which makes [Plaintiff] ineligible for [Non-Violent Parole Process] early parole
18 consideration.” Id., ECF No. 4 at 12-13, Second Level Appeal Response dated May 15,
19 2020.
20 Under Proposition 57, violent felonies are defined in California Penal Code Section
21 667.5(c). See Cal. Code Regs. tit. 15, § 3490. As the exhibits submitted by Plaintiff
22 demonstrate, he was convicted under California Penal Code § 211 which is robbery in the
23 second degree, with an enhancement of use of a firearm under California Penal Code §
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2 “In 2016, California voters approved Proposition 57 which […] requires that ‘[a]ny
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person convicted of a nonviolent felony offense and sentenced to state prison shall be
27 eligible for parole consideration after completing the full term for his or her primary
offense.’” Russell v. Kernan, No. 218CV1062TLNACP, 2019 WL 2267136, at *3 (E.D.
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1 12022.5(a). Even assuming that his robbery conviction should be considered a nonviolent
2 felony, pursuant to § 667.5(c)(8), a violent felony is classified as “any felony in which the
3 defendant uses a firearm which use has been charged or proved in . . . Section 12022.5.”
4 Cal. Penal Code § 667.5(c)(8). Thus, Plaintiff’s own factual allegations show that he is not
5 eligible for early parole consideration under Proposition 57 because the enhancement of
6 use of a firearm is considered a violent felony.
7 E. Early release
8 To the extent that Plaintiff may be seeking early release, he cannot bring this claim
9 pursuant to § 1983. Such a claim would challenge “the validity of [his] continued
10 incarceration [and therefore] lie within ‘the heart of habeas corpus.’” Ramirez v. Galaza,
11 334 F.3d 850, 856 (9th Cir. 2003) (quoting Preiser v. Rodriguez, 411 U.S. 475, 98-99
12 (1973) (holding that a writ of habeas corpus is “explicitly and historically designed” to
13 provide a state prisoner with the “exclusive” means to “attack the validity of his
14 confinement” in federal court)).
15 For all these reasons, the Court finds that Plaintiff has failed to state a § 1983 claim
16 upon which relief may be granted.
17 III. Conclusion and Order
18 Good cause appearing, the Court:
19 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
20 (ECF No. 2).
21 2. ORDERS the Secretary of the CDCR, or her designee, to collect from
22 Plaintiff’s trust account the $350 owed in monthly payments in an amount equal to twenty
23 percent (20%) of the preceding month’s income to the Clerk of the Court each time the
24 amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL
25 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER
26 ASSIGNED TO THIS ACTION.
27 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen
28 Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.
1 4. DISMISSES Plaintiff's Complaint for failing to state a claim pursuant to 28
2 ||U.S.C. § 1915(e)(2) and § 1915A(b); and
3 5. GRANTS Plaintiff 45 days leave from the date of this Order in which to file
4 Amended Complaint which cures all the deficiencies of pleading noted, if he can.
5 || Plaintiff's Amended Complaint must be complete in itself without reference to his original
6 || pleading. Defendants not named and any claims not re-alleged in the Amended Complaint
7 || will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard
8 || Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading
9 supersedes the original.’”’); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)
10 || (noting that claims dismissed with leave to amend which are not re-alleged in an amended
11 pleading may be “considered waived if not repled.”).
12 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter
13 |/a final Order dismissing this civil action based both on Plaintiffs failure to state a claim
14 ||upon which relief can be granted pursuant to 28 U.S.C. §$ 1915(e)(2)(B) and 1915A(b),
15 |/and his failure to prosecute in compliance with a court order requiring amendment. See
16 || Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“Ifa plaintiff does not take advantage
17 the opportunity to fix his complaint, a district court may convert the dismissal of the
18 ||}complaint into dismissal of the entire action.”).
19 The Clerk of Court is directed to mail a court approved civil rights complaint form
20 Plaintiff for his use in amending.
21 IT IS SO ORDERED.
22 ||Dated: November 16, 2022
eet Barrnuds, Mictissye! >
24 on Ruth Bermudez Montenegro
5 United States District Judge
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