“If 28 1 plaintiff does not take advantage of the opportunity to fix his complaint, a district court 2 ||may convert the dismissal of the complaint into dismissal of the entire action.”’
How later courts described this case
- “If 28 1 plaintiff does not take advantage of the opportunity to fix his complaint, a district court 2 ||may convert the dismissal of the complaint into dismissal of the entire action.”’
- “A district court should not dismiss a pro se complaint without leave to amend 19 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii
- noting that claims dismissed 24 with leave to amend which are not re-alleged in an amended pleading may be “considered 25 waived if not repled”
- stating 12 supervisory officials are not liable for actions of subordinates on any theory of vicarious 13 liability
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 ERIC A. EARLE, Case No.: 3:23-cv-0659-BTM-JLB
CDCR #AV4118
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ORDER: (1) GRANTING MOTION
13 TO PROCEED IN FORMA
Plaintiff,
PAUPERIS [ECF No. 2] AND
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vs.
15 (2) DISMISSING COMPLAINT
FOR FAILING TO STATE A
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RAYMOND MADDEN, Warden, STATE CLAIM PURSUANT TO 28 U.S.C.
17 OF CALIFORNIA, §§ 1915(e)(2)(B) AND 1915A(b)
18 Defendants.
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20 I. INTRODUCTION
21 Eric A. Earle (“Plaintiff” of “Earle”), a state inmate currently housed at R.J.
22 Donovan Correctional Facility (“RJD”) and proceeding pro se, has filed a civil rights action
23 pursuant to 42 U.S.C. § 1983, along with an application to proceed in forma pauperis
24 (“IFP”). ECF Nos. 1, 2. He alleges Defendants violated his Fourteenth and Eighth
25 Amendment rights after he was injured during transportation to a medical facility, when
26 his wheelchair was not properly secured. See generally, ECF No. 1. For the reasons
27 discussed below, the Court grants Plaintiff’s IFP motion and dismisses the Complaint
28 without prejudice and with leave to amend.
1 II. 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 $402.1 See 28 U.S.C. § 1914(a). A party may initiate a civil action without prepaying the
5 required filing fee if the Court grants leave to proceed IFP based on indigency. 28 U.S.C.
6 § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007).
7 To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit
8 regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th
9 Cir. 2015). Prisoners seeking to establish an inability to pay must also submit a “certified
10 copy of the [prisoner’s] trust fund account statement (or institutional equivalent) for . . .
11 the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
12 § 1915(a)(2). From the certified trust account statement, the Court assesses an initial
13 payment of 20% of (a) the average monthly deposits in the account for the past six months,
14 or (b) the average monthly balance in the account for the past six months, whichever is
15 greater, unless the prisoner has no assets. See 28 U.S.C. §§ 1915(b)(1) & (4). Prisoners
16 who proceed IFP must repay the entire fee in installments regardless of whether their action
17 is ultimately dismissed. 28 U.S.C. § 1915(b)(2); Bruce v. Samuels, 577 U.S. 82, 84 (2016).
18 In support of his IFP Motion, Plaintiff provided a copy of his trust account statement.
19 ECF No. 3. During the six months prior to filing suit, Plaintiff had an average monthly
20 balance of $104.17, average monthly deposits of $104.16, and an available account balance
21 of $0.00 at the time he filed suit. Id. at 1, 3. The Court finds Plaintiff has established an
22 inability to pay the required $350 filing fee and GRANTS his IFP motion. While the Court
23 assesses no initial payment, Plaintiff will be required to pay the full $350 filing fee in
24 installments to be collected from his trust account as set forth in 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 fee of
27 $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee
Schedule, § 14 (eff. Dec. 1, 2021)). The additional $52 administrative fee does not apply to
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1 III. SCREENING PURSUANT TO 28 U.S.C. § 1915(e) AND § 1915A(b)
2 A. Legal Standards
3 Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), the Court must screen a
4 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous,
5 malicious, fails to state a claim, or seeks damages from defendants who are immune. See
6 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson,
7 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has
8 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the
9 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”
10 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a
11 complaint “contain sufficient factual matter . . . to state a claim to relief that is plausible on
12 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
13 While detailed factual allegations are not required, “[t]hreadbare recitals of the elements
14 of a cause of action, supported by mere conclusory statements, do not suffice” to state a
15 claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-
16 harmed me accusation[s]” fall short of meeting this plausibility standard. Id.
17 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,
18 acting under color of state law, violate federal constitutional or statutory rights.” Devereaux
19 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of
20 substantive rights, but merely provides a method for vindicating federal rights elsewhere
21 conferred.” Graham v. Connor, 40 U.S. 386 U.S. 386, 393–94 (1989) (internal quotation
22 marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation
23 of a right secured by the Constitution and laws of the United States, and (2) that the
24 deprivation was committed by a person acting under color of state law.” Tsao v. Desert
25 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
26 B. Plaintiff’s Allegations
27 In his Complaint, Earle states that on September 6, 2022, he was being transported
28 to an outside medical facility. ECF No. 1 at 5. Earle, who uses a wheelchair, told staff that
1 his wheelchair was not properly secured in the van, but staff did not respond. Id. When the
2 transportation van began its return trip to RJD, Earle’s wheelchair, which was not “strapped
3 down,” “flipped over” and his left hand was “crushed” as a result. Id. at 6. After the
4 incident, Earle was not taken to the hospital to have his hand evaluated. Id.
5 Earle subsequently filed an administrative grievance, “hoping [Warden] Madden
6 would investigate the transportation procedures” but Madden “would not respond to his
7 grievance or injury” and the grievance was ultimately denied. Id. Earle alleges Madden
8 “conspired, contrived and manufactured false evidence against him” as part of a “cover-
9 up.” Id. He states that, as warden, Madden “was responsible for [his] safety.” Id. at 7. Earle
10 contends the failure to investigate the transportation policies or discipline staff “encouraged
11 transportation violations by recklessly ignoring wheelchair equipment in transportation
12 vans, causing injuries to wheelchair bound inmates.” Id. He seeks $25,000 in compensatory
13 damages and $50,000 in punitive damages. Id. at 12.
14 C. Discussion
15 Plaintiff contends his Eighth and Fourteenth Amendment rights were violated when
16 Defendants failed to adequately respond to his grievances and failed to adequately review
17 the conduct of RJD staff during the September 9, 2022 incident. Id. at 11.
18 1. State of California
19 Earle names the “State of California” as a defendant. Id. at 5. The Eleventh
20 Amendment bars suits against a state, absent the state’s affirmative waiver of its immunity
21 or congressional abrogation of that immunity. Krainski v. Nev. ex rel. Bd. of Regents of
22 Nev. Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (internal citations omitted).
23 The Ninth Circuit has recognized that “[t]he State of California has not waived its Eleventh
24 Amendment immunity with respect to claims brought under § 1983 in federal court, and
25 the Supreme Court has held that § 1983 was not intended to abrogate a State’s Eleventh
26 Amendment immunity.” Brown v. California Dep’t of Corr., 554 F.3d 747, 752 (9th Cir.
27 2009); see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67 (1989). Accordingly,
28 the Court sua sponte dismisses the State of California as a party to this action pursuant to
1 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) as barred by the Eleventh Amendment. Lopez,
2 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.
3 2. Warden Madden
4 Next, Earle sues RJD Warden Madden in both his official and individual capacities,
5 for violations of the Eighth and Fourteenth Amendments. See ECF No. 1 at 4. As to
6 Plaintiff’s official capacity claims against Madden, federal courts are “barred by the
7 Eleventh Amendment from awarding damages against state officials acting in their official
8 capacities.” Snow v. McDaniel, 681 F.3d 978, 991 (9th Cir. 2012). Therefore, Earle’s
9 official capacity claims against Madden, for which he seeks only money damages, must be
10 dismissed. See id.
11 The Court now turns to Plaintiff’s individual capacity claims against Madden. As
12 for Earle’s Eighth Amendment claim, he alleges Madden failed to properly supervise RJD
13 staff regarding proper “transportation procedures” and failed to adequately respond to
14 Earle’s injury. See ECF No. 1 at 7. The Eighth Amendment imposes duties on prison
15 officials to “take reasonable measures to guarantee the safety of the inmates.” Farmer v.
16 Brennan, 511 U.S. 825, 832 (1994). Under section 1983, however, supervisory officials
17 are not liable for actions of subordinates on any theory of vicarious liability. Crowley v.
18 Bannister, 734 F.3d 967, 977 (9th Cir. 2013). A supervisor may be held liable in section
19 1983 suits when “culpable action, or inaction is directly attributed to them.” Starr v. Baca,
20 652 F.3d 1202, 1205 (9th Cir. 2011). To state a claim against a supervisor, a plaintiff must
21 plausibly allege (1) personal involvement in the constitutional deprivation or (2) a
22 sufficient causal connection between the supervisor’s wrongful conduct and the
23 constitutional violation. Redman v. City of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991)
24 (en banc). To demonstrate a sufficient causal connection, “a plaintiff must show the
25 supervisor breached a duty to [the] plaintiff which was the proximate cause of the injury.”
26 Starr, 652 F.3d at 1207.
27 Here, Plaintiff fails to allege any direct action (or inaction) on Madden’s part as to
28 the purported failure to properly secure Plaintiff’s wheelchair. Earle does not, for instance,
1 claim Madden personally knew of the wheelchair incident when it happened; he states only
2 that Madden is liable because, as RJD’s warden, he was responsible for ensuring Earle’s
3 safety. See ECF No. 1 at 7. But a supervisor’s mere knowledge of the unconstitutional
4 conduct of a subordinate does not amount to the supervisor’s own violation of the
5 Constitution. See Iqbal, 556 U.S. at 677. That Madden has a supervisory role at the prison
6 is not sufficient to plausibly allege he is personally liable for Earle’s injury.2 See King v.
7 Cty. of Los Angeles, 885 F.3d 548, 559 (9th Cir. 2018). Therefore, Earle has failed to state
8 an Eighth Amendment claim against Madden in his individual capacity.
9 As to Earle’s Fourteenth Amendment claim, to the extent he sues Madden for the
10 purported failure of RJD staff to properly process Earle’s grievance, he fails to state a due
11 process claim based on supervisory liability. See Crowley, 734 F.3d at 977 (stating
12 supervisory officials are not liable for actions of subordinates on any theory of vicarious
13 liability). And to the extent he seeks to hold Madden liable for failing to personally respond
14 to his grievance in a satisfactory manner, he may not do so because a prisoner has no
15 constitutional right to an effective grievance or appeal procedure. See Ramirez v. Galaza,
16 334 F.3d 850, 860 (9th Cir. 2003) (holding that a prisoner has no constitutional right to an
17 effective grievance or appeal procedure); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.
18 1988). In other words, prison officials are not required under federal law to process inmate
19 grievances in a certain way.3 As such, the denial, rejection, screening out of issues, review,
20 or cancellation of a grievance does not constitute a due process violation. See, e.g., Evans
21 v. Skolnik, 637 F. App’x 285, 288 (9th Cir. 2015) (stating a prison official’s denial of a
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24 2 To state an Eighth Amendment claim against an individual state actor who purportedly caused
the injury, a plaintiff must plausibly allege (1) he suffered an objectively sufficiently serious
25 deprivation and (2) the individual defendant(s) had a subjectively culpable state of mind in
26 allowing or causing the deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298–99 (1991).
27 3 California’s regulations grant prisoners a purely procedural right: the right to have a prison
appeal. See Cal. Code Regs. tit. 15, §§ 3084–3084.9 (2014).
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1 grievance does not itself violate the constitution); Towner v. Knowles, No. S-08-cv-2823-
2 LKK-EFB, 2009 WL 4281999 at *2 (E.D. Cal. Nov. 20, 2009) (finding allegations that
3 prison officials screened out inmate appeals without any basis failed to indicate a
4 deprivation of federal rights). Accordingly, Plaintiff has not stated a cognizable Fourteenth
5 Amendment due process claim4 against Madden based on the processing and/or denial of
6 his inmate grievance. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at
7 678; Lopez, 203 F.3d at 1126–27.
8 3. Conclusion
9 In sum, Earle’s claims against the State of California must be dismissed pursuant to
10 Eleventh Amendment immunity. Moreover, Earle’s Eighth or Fourteenth Amendment
11 claims against Madden (as to both his official and individual capacity) must be dismissed
12 for failure to state a claim. The Court therefore sua sponte dismisses the Complaint without
13 prejudice. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678;
14 Watison, 668 F.3d at 1112.
15 D. Leave to Amend
16 Given Plaintiff’s pro se status, the Court grants him leave to amend to attempt to
17 sufficiently allege a claim if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir.
18 2015) (“A district court should not dismiss a pro se complaint without leave to amend
19 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless it is absolutely clear that the deficiencies
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4 Earle also references the Equal Protection Clause in his Complaint. See ECF No. 1 at 3, 11. The
22 Equal Protection Clause requires that persons who are similarly situated be treated alike. City of
Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985). An equal protection claim
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may be established by either (1) showing defendants intentionally discriminated against a plaintiff
24 based on his membership in a protected class, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir.
2003), or (2) showing that similarly situated individuals were intentionally treated differently
25 without a rational relationship to a legitimate state purpose, Engquist v. Oregon Department of
Agr., 553 U.S. 591, 601–02 (2008). Earle fails to allege he was treated differently from similarly
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situated inmates or that he is a member of a protected class. He states only that he was denied
27 equal protection during the administrative grievance process. ECF No. 1 at 11. Such conclusory
statements are insufficient to state a claim. See Iqbal, 556 U.S. at 678.
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1 of the complaint could not be cured by amendment.”) (internal quote marks omitted).
2 IV. CONCLUSION AND ORDER
3 For the reasons set forth above, the Court hereby:
4 1. GRANTS Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a)
5 (ECF No. 2).
6 2. ORDERS the Secretary of the CDCR, or his designee, to collect from
7 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly
8 payments from the account in an amount equal to twenty percent (20%) of the preceding
9 month’s income and forward payments to the Clerk of the Court each time the amount in
10 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS
11 MUST CLEARLY IDENTIFY THE NAME AND CASE NUMBER ASSIGNED TO
12 THIS ACTION.
13 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff
14 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by
15 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.
16 4. DISMISSES the Complaint without prejudice and with leave to amend
17 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
18 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in
19 which to file a First Amended Complaint which cures the deficiencies of pleading noted in
20 this Order. Plaintiff’s Amended Complaint must be complete by itself without reference to
21 any previous version of his pleading; Defendants not named and any claims not re-alleged
22 in the Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal
23 Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed
24 with leave to amend which are not re-alleged in an amended pleading may be “considered
25 waived if not repled”); Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,
26 1546 (9th Cir. 1989). If Plaintiff fails to timely amend, the Court will enter a final Order
27 dismissing this civil action. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If
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1 plaintiff does not take advantage of the opportunity to fix his complaint, a district court
2 ||may convert the dismissal of the complaint into dismissal of the entire action.”’)
3 || IT IS SO ORDERED.
4 Dated: June 29, 2023
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6 United States District Judge
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