Taylor v. California Department of Corrections

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 MATTHEW SCOTT TAYLOR, Case No.: 23-cv-206-MMA (JLB)

CDCR #BC-7959,

12

ORDER: (1) GRANTING MOTION

Plaintiff,

13 TO PROCEED IN FORMA

vs. PAUPERIS; (2) DISMISSING

14

DEFENDANT CDCR PURSUANT TO

15 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b);

CALIFORNIA DEP’T OF AND (3) DIRECTING USMS TO

16

CORRECTIONS; TORRES; JANE DOE EFFECT SERVICE OF COMPLAINT

17 NO. 1; JOHN DOE NO. 2; DOES 1-5,

18 Defendants. [Doc. No. 2]

19

20

21 Plaintiff Matthew Scott Taylor (“Plaintiff” or “Taylor”), proceeding pro se, is

22 currently incarcerated at Corcoran State Prison located in Corcoran, California, and has

23 filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1 (“Compl.”).

24 Taylor alleges Defendants violated his Eighth Amendment rights by failing to properly

25 protect him when he was attacked by a fellow inmate. See id. at 5–6. Taylor did not

26 prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the time of filing, but

27 instead has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.

28 § 1915(a). See Doc. 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,

8 however. If granted leave to proceed IFP, prisoners remain obligated to pay the entire fee

9 in “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)

15 for . . . 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

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

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

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

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

23 those payments to the Court until the entire filing fee is paid. See 28 U.S.C.

24 § 1915(b)(2); Bruce, 577 U.S. at 84.

25

26

1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52.

27 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 not apply to persons granted leave to

28

1 In support of his IFP Motion, Taylor submitted a Prison Certificate. See Doc.

2 No. 2 at 3; see also 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at

3 1119. This financial record shows Taylor had an average monthly balance of $441.22,

4 over the past six months, average monthly deposits of $176.66 over the past six months,

5 and an available balance of $253.23 to his credit at the time of filing. See Doc. No. 2 at

6 3.

7 Therefore, the Court GRANTS Taylor’s Motion to Proceed IFP (Doc. No. 2) and

8 assesses an initial partial filing fee of $88.24. In addition, the Court DIRECTS the

9 Secretary of the California Department of Corrections and Rehabilitation (“CDCR”), or

10 their designee, to collect the entire $350 balance of the filing fee required by 28 U.S.C.

11 § 1914 and to forward all payments to the Clerk of the Court pursuant to the installment

12 provisions set forth in 28 U.S.C. § 1915(b)(2).

13 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b)

14 A. Standard of Review

15 Because Taylor is a prisoner and is proceeding IFP, his Complaint requires a pre-

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

17 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

18 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

19 who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28

20 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en

21 banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C.

22 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or

23 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

24 903, 920 n.1 (9th Cir. 2014) (citation omitted).

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

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

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

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

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

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

3 12(b)(6)”).

4 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain

5 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

6 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted);

7 Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but

8 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

9 statements, do not suffice.” Iqbal, 556 U.S. at 678. And while the court “ha[s] an

10 obligation where the petitioner is pro se, particularly in a civil rights case, to construe the

11 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler,

12 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1

13 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially

14 pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

15 B. Plaintiff’s Allegations

16 On October 5, 2021, a new inmate was moved into Plaintiff’s cell. See Compl. at

17 5. Plaintiff’s new cellmate purportedly was moved into his cell because he had made

18 “threats of violence to his cellmates in his previous housing unit.” Id. Two days later,

19 Plaintiff approached Defendant Doe 1, the “assigned counselor during ‘open-line’

20 visiting hours” to “alert her of the threats” his new cellmate was making to him and other

21 inmates. Id. However, Plaintiff claims she was dismissive of his concerns and made a

22 “shooing gesture with her hands.” Id. The following day, Plaintiff alleges that his

23 cellmate “made good on his threats” and stabbed Plaintiff multiple times with a

24 “manufactured weapon.” Id. at 6. Plaintiff “blacked out and awoke in the shower with

25 multiple stab wounds” and was bleeding. Id. Plaintiff alleges that Defendant Torres

26 stated to another inmate that he “knew [Plaintiff’s cellmate] was a problem.” Id.

27 Plaintiff seeks $2,200,000 in compensatory and punitive damages. See id. at 13.

28 //

1 C. Discussion

2 Taylor contends the actions of the defendants violated his Eighth Amendment

3 rights. “The Eighth Amendment requires prison officials to protect inmates from

4 violence.” Wilk v. Neven, 956 F.3d 1143, 1147 (9th Cir. 2020) (citing Farmer v.

5 Brennan, 511 U.S. 825, 833 (1994)). In order to state a plausible Eighth Amendment

6 claim for relief, however, a Plaintiff must allege facts sufficient to show that Defendants

7 acted with “deliberate indifference.” Castro v. Cnty. of Los Angeles, 833 F.3d 1060,

8 1068 (9th Cir. 2016); Iqbal, 556 U.S. at 678. “A prison official acts with ‘deliberate

9 indifference . . . only if the [prison official] knows of and disregards an excessive risk to

10 inmate health and safety.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)

11 (quoting Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)), overruled on

12 other grounds by Castro, 833 F.3d at 1076. “Under this standard, the prison official must

13 not only ‘be aware of facts from which the inference could be drawn that a substantial

14 risk of serious harm exists,’ but that person ‘must also draw the inference.’” Id. (quoting

15 Farmer, 511 U.S. at 837).

16 1. CDCR

17 As an initial matter, Plaintiff’s claims against the California Department of

18 Corrections (“CDCR”) must be dismissed. The CDCR is not a “person” subject to suit

19 under Section 1983 and it is entitled to immunity from suit for monetary damages under

20 the Eleventh Amendment. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53–54

21 (1996); Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001) (citing Hale v. Arizona,

22 993 F.2d 1387, 1398–99 (9th Cir. 1993)); see also Dragasits v. California, No. 3:16-cv-

23 01998-BEN-JLB, 2016 WL 680947, at *3 (S.D. Cal. Nov. 15, 2016) (“The State of

24 California’s Department of Corrections and Rehabilitation and any state prison,

25 correctional agency, sub-division, or department under its jurisdiction, are not ‘persons’

26 subject to suit under § 1983.” (citing Groten, 251 F.3d at 851)).

27 Accordingly, Plaintiff’s claims against this Defendant are dismissed sua sponte for

28 failure to state a plausible claim and for seeking monetary relief against an immune

1 defendant. See 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).

2 2. Eighth Amendment Failure to Protect Claim

3 The Court finds that Plaintiff’s allegations are sufficient to plausibly allege an

4 Eighth Amendment failure to protect claim against the remaining Defendants because

5 they show Defendants were “‘aware of facts from which the inference could be drawn

6 that a substantial risk of serious harm exist[ed],’” and that Defendants actually drew that

7 inference. Toguchi, 391 F.3d at 1057 (quoting Farmer, 511 U.S. at 837); Iqbal, 556 U.S.

8 at 678. The Court will permit these claims to survive the sua sponte screening process.

9 However, Plaintiff is cautioned that the sua sponte screening process is “cumulative of,

10 not a substitute for, any subsequent [motion to dismiss] that the defendant[s] may choose

11 to bring.” Teahan v. Wilhelm, 481 F.Supp.2d 1115, 1119 (S.D. Cal. 2007).

12 Because cognizable Eighth Amendment failure to protect claims against

13 Defendants remain and are “sufficient to meet the low threshold for proceeding past the

14 screening stage,” see Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012), the Court

15 will order the U.S. Marshal to effect service of summons and Plaintiff’s Complaint upon

16 those Defendants pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3).

17 III. CONCLUSION AND ORDER

18 For the reasons explained, the Court:

19 1. GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (Doc. No. 2);

20 2. ORDERS the Secretary of the CDCR, or their designee, to collect from

21 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly

22 payments from the account in an amount equal to twenty percent (20%) of the preceding

23 month’s income and forward payments to the Clerk of the Court each time the amount in

24 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

25 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

26 HIS ACTION;

27 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff

28 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by

1 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov;

2 4. DISMISSES Plaintiff’s claims against Defendant CDCR for failure to state

3 a claim upon which relief may be granted and for seeking monetary damages against

4 immune defendants pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). The Clerk of

5 Court is directed to terminate this Defendant from the Court’s docket.

6 5. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (Doc.

7 No. 1) upon the remaining Defendants2 and forward it to Plaintiff along with a blank U.S.

8 Marshal Form 285 for each of these Defendants. In addition, the Clerk will provide

9 Plaintiff with certified copies of this Order, certified copies of his Complaint (Doc.

10 No. 1), and the summons so that he may serve the Defendants. Upon receipt of this “IFP

11 Package,” Plaintiff must complete the USM Form 285s as completely and accurately as

12 possible, include an address where each Defendant may be found and/or subject to

13 service pursuant to S.D. Cal. CivLR 4.1c., and return them to the United States Marshal

14 according to the instructions the Clerk provides in the letter accompanying his IFP

15 package;

16 6. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons

17 upon Defendants upon receipt and as directed by Plaintiff on the completed USM Form

18

19

20

2 However, Plaintiff must identify the Doe Defendants, see Farmer, 511 U.S. at 833, 837, and substitute

21 their true names in an amended pleading before the United States Marshal will be able to execute service

upon them. See Aviles v. Village of Bedford Park, 160 F.R.D. 565, 567 (1995) (Doe defendants must be

22 identified and served within [90] days of the commencement of the action against them); Fed. R. Civ. P.

15(c)(1)(C) & 4(m). Generally, Doe pleading is disfavored, Gillespie v. Civiletti, 629 F.2d 637, 642 (9th

23 Cir. 1980), and in most instances it is impossible for the United States Marshal to serve a party identified

only as a Doe. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (in order to properly effect

24

service under Rule 4 in an IFP case, the plaintiff is required to “furnish the information necessary to

25 identify the defendant”); Finefeuiaki v. Maui Cmty. Corr. Ctr. Staff & Affiliates, 2018 WL 3580764, at

*6 (D. Haw. July 25, 2018) (noting that “[a]s a practical matter, the United States Marshal cannot serve

26 a summons and complaint on an anonymous defendant”). However, where the identity of an alleged

party is not known prior to filing of an action, Ninth Circuit authority permits Plaintiff the opportunity to

27 pursue appropriate discovery to identify the unknown Doe, unless it is clear that discovery would not

uncover their identity, or his pleading requires dismissal for other reasons. See Wakefield v. Thompson,

28

1 |}285s, and to promptly file proof of service, or proof of any attempt at service unable to be

2 executed, with the Clerk of Court. See S.D. Cal. CivLR 5.2. All costs of that service will

3 || be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3);

4 7. ORDERS Defendants, once they have been served, to reply to Plaintiff's

5 ||Complaint within the time provided by the applicable provisions of Federal Rule of Civil

6 || Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be

7 || permitted to “waive the right to reply to any action brought by a prisoner confined in any

8 prison, or other correctional facility under section 1983,” once the Court has

9 || conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b),

10 thus, has made a preliminary determination based on the face on the pleading alone

11 Plaintiff has a “reasonable opportunity to prevail on the merits,” defendant is

12 || required to respond);

13 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

14 serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’

15 counsel, a copy of every further pleading, motion, or other document submitted for the

16 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every

17 || original document he seeks to file with the Clerk of the Court, a certificate stating the

18 manner in which a true and correct copy of that document has been served on Defendants

19 || or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document

20 || received by the Court which has not been properly filed with the Clerk or which fails to

21 include a Certificate of Service upon the Defendants, or their counsel, may be

22 || disregarded.

23 IT IS SO ORDERED.

24 || Dated: March 16, 2023

25 BWMaihul lu = hill

26 HON. MICHAEL M. ANELLO

07 United States District Judge

28

8 oe