Quinn v. Pollard

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5 UNITED STATES DISTRICT COURT

6 SOUTHERN DISTRICT OF CALIFORNIA

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8 GREGORY W. QUINN, Case No.: 3:23-cv-1494-JES-SBC

CDCR #P-28271,

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ORDER:

Plaintiff,

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vs. 1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS

MARCUS POLLARD, Warden;

12 [ECF No. 2]; AND

RICO MATTHEWS, Correctional

13 Officer; F. LEWIS, Correctional Officer,

2) DISMISSING COMPLAINT FOR

14 Defendants. FAILING TO STATE A CLAIM

PURSUANT TO

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28 U.S.C. § 1915(e)(2)(B) AND

16 28 U.S.C. § 1915A(b)

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19 Plaintiff Gregory W. Quinn, a prisoner currently incarcerated at California State

20 Prison – Los Angeles County (“CSP-LAC”) located in Lancaster, California, and

21 proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See

22 Compl., ECF No. 1. Plaintiff alleges his constitutional rights were violated when he was

23 previously housed at the Richard J. Donovan Correctional Facility (“RJD”) in March of

24 2023. See id. at 1. In addition, Plaintiff has filed a Motion to Proceed In Forma Pauperis

25 (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2.

26 / / /

27 / / /

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1 I. PLAINTIFF’S ALLEGATIONS

2 On March 14, 2023, Plaintiff was “involve[d] in a fight with another inmate.”

3 Compl. at 3. On April 6, 2023, Plaintiff was given an incident report regarding the fight,

4 and he noticed that it included “confidential information in the incident report which had

5 nothing to do with the incident at hand.” Id. Plaintiff alleges that he “realize[d] CDCR

6 staff place[d] his life in danger” because the incident report included information that

7 Plaintiff’s underlying offense included “oral cop[ulation] with force.” Id. Other inmates

8 who were involved in the incident have allegedly received a copy of this report with this

9 information. Id.

10 Plaintiff seeks injunctive relief, $20,000 in compensatory damages, and $20,000 in

11 punitive damages. See id. at 9.

12 II. MOTION TO PROCEED IFP

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

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

15 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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

17 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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

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

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

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

22 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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

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

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

27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.

Dec., 2020). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP.

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1 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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

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

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

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

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

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

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

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

10 Bruce, 136 S. Ct. at 629.

11 Plaintiff has submitted a prison certificate signed by a CSP-LAC accounting

12 official and a certified copy of his inmate trust account statement in support of his Motion

13 to Proceed IFP. See ECF No. 2 at 4-6; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2;

14 Andrews, 398 F.3d at 1119. These financial records show Plaintiff carried a zero monthly

15 balance, had no deposits credited to his account over that time, and had a $0.00 balance

16 to his credit at the time of filing. See ECF No. 2 at 4-6.

17 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and

18 declines to assess any initial partial filing fee pursuant to 28 U.S.C. § 1915(a)(1) and

19 (b)(1). See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be

20 prohibited from bringing a civil action or appealing a civil action or criminal judgment

21 for the reason that the prisoner has no assets and no means by which to pay the initial

22 partial filing fee.”); Bruce, 577 U.S. at 86; Taylor, 281 F.3d at 850 (finding that 28

23 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case

24 based solely on a “failure to pay . . . due to the lack of funds available to him when

25 payment is ordered.”). Instead, the Court DIRECTS the Secretary of the California

26 Department of Corrections and Rehabilitation (“CDCR”), or their designee, to collect the

27 entire $350 balance of the filing fee required by 28 U.S.C. § 1914 and to forward all

28 payments to the Clerk of the Court pursuant to the installment provisions set forth in 28

1 U.S.C. § 1915(b)(2).

2 III. INITIAL SCREENING per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

3 A. Standard of Review

4 Notwithstanding Plaintiff’s IFP status or the payment of any filing fees, the Prison

5 Litigation Reform Act (“PLRA”) also obligates the Court to review complaints filed by

6 all persons proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained

7 in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of

8 criminal law or the terms or conditions of parole, probation, pretrial release, or

9 diversionary program,” “as soon as practicable after docketing,” and ideally before the

10 service of process upon any Defendant. See 28 U.S.C. §§ 1915(e)(2) and 1915A(b).

11 Under these statutes, the Court must sua sponte dismiss complaints, or any portions

12 thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from

13 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)

14 (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

15 (discussing 28 U.S.C. § 1915A(b)). “The purpose of § 1915[] is to ‘ensure that the targets

16 of frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v.

17 Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health

18 Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

19 All complaints must contain “a short and plain statement of the claim showing that

20 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

21 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

22 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

23 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether

24 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires

25 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere

26 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

27 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

28 “When there are well-pleaded factual allegations, a court should assume their

1 veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

2 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

3 (“[W]hen determining whether a complaint states a claim, a court must accept as true all

4 allegations of material fact and must construe those facts in the light most favorable to

5 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

6 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).

7 While the court “ha[s] an obligation where the petitioner is pro se, particularly in

8 civil rights cases, to construe the pleadings liberally and to afford the petitioner the

9 benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing

10 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential

11 elements of claims that were not initially pled.” Ivey v. Board of Regents of the University

12 of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

13 B. 42 U.S.C. § 1983

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

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

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

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

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

19 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)

20 deprivation of a right secured by the Constitution and laws of the United States, and (2)

21 that the deprivation was committed by a person acting under color of state law.” Tsao v.

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

23 C. Supervisory Claims

24 Here, Plaintiff names Warden Pollard as a Defendant and states that Pollard is

25 “being sued under supervisory liability” and he “fail[ed] to supervise” Defendants

26 Matthew and Lewis. Compl. at 7. However, the Court finds that these allegations are

27 insufficient to state any plausible claim for relief against Defendant Pollard. “Because

28 vicarious liability is inapplicable to … § 1983 suits, a plaintiff must plead that each

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

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

3 1437-38 (9th Cir. 1993) (noting there is no respondeat superior liability under 42 U.S.C.

4 § 1983). A supervisory official like Pollard may only be held liable under § 1983 if the

5 plaintiff alleges their “personal involvement in the constitutional deprivation, or . . . a

6 sufficient causal connection between the supervisor’s wrongful conduct and the

7 constitutional violation.” Keates v. Koile, 883 F.3d 1228, 1242‒43 (9th Cir. 2018); Starr

8 v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). In other words, “a supervisor is liable for

9 the acts of his subordinates ‘if the supervisor participated in or directed the violations, or

10 knew of the violations of subordinates and failed to act to prevent them.’” Corales v.

11 Bennett, 567 F.3d 554, 570 (9th Cir. 2009) (citations omitted).

12 Plaintiff offers no facts to support that Pollard was actually aware of any of the

13 allegations made by him. While Rule 8 “does not require ‘detailed factual allegations,’” it

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

15 Iqbal, 556 U.S. at 678 (citation omitted). In order “[t]o survive a motion to dismiss, a

16 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for

17 relief that is plausible on its face.’” Iqbal, 662 U.S. at 678 (citations omitted). But nothing

18 in Plaintiff’s Complaint plausibly suggests Pollard “through his own individual actions, .

19 . . violated the Constitution.” Iqbal, 556 at 676; see also Jones v. Community

20 Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even

21 pro se plaintiff must “allege with at least some degree of particularity overt acts which

22 defendants engaged in” in order to state a claim). Therefore, any purported claims against

23 Defendant Pollard are dismissed for failing to state a claim.

24 D. Eighth Amendment claims

25 The Eighth Amendment requires that prison officials ‘must take reasonable

26 measures to guarantee the safety of the inmates.’” United States v. Williams, 842 F.3d

27 1143, 1153 (9th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)

28 (“[P]rison officials have a duty [under the Eighth Amendment] ... to protect prisoners

1 from violence at the hands of other prisoners.”); see also Clem v. Lomeli, 566 F.3d 1177,

2 1181 (9th Cir. 2009). “It is not, however, every injury suffered by one prisoner at the

3 hands of another that translates into constitutional liability for prison officials responsible

4 for the victim’s safety.” Farmer, 511 U.S. at 834. “In Wilson v. Seiter, [the Supreme

5 Court] rejected a reading of the Eighth Amendment that would allow liability to be

6 imposed on prison officials solely because of the presence of objectively inhumane prison

7 conditions.” Id. at 838 (citing Wilson, 501 U.S. 294, 299-302 (1991)). General allegations

8 “which amount to little more than positing that prisons are dangerous places, … are

9 insufficient to state an Eighth Amendment claim.” Curry v. California Dep’t of Corr. &

10 Rehab., No. C 09-3408 MHP (PR), 2010 WL 546778, at *2 (N.D. Cal. Feb. 10, 2010).

11 Therefore, a prison official’s failure to protect an inmate violates the Eighth

12 Amendment only when “(1) the deprivation alleged is ‘objectively, sufficiently serious’

13 and (2) the prison officials had a ‘sufficiently culpable state of mind,’ acting with

14 deliberate indifference.” Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)

15 (quoting Farmer, 511 U.S. at 834).

16 To satisfy the first objective pleading requirement, the prisoner must allege

17 sufficient factual content to plausibly “‘show[ ] that he is incarcerated under conditions

18 posing a substantial risk of serious harm.’” Lemire, 726 F.3d at 1075 (quoting Farmer,

19 511 U.S. at 834). To satisfy the second subjective pleading requirement, he must also

20 “plead factual content” to show that each defendant was aware of facts from which the

21 inference could be drawn that a substantial risk of harm existed, and that each also drew

22 and disregarded that inference. Iqbal, 556 U.S at 678; Farmer, 511 U.S. at 837.

23 Here, Plaintiff claims that the inclusion of his commitment offenses in the report

24 “exposes the plaintiff to a risk of future harm [because] sex offenses are look[ed] down

25 on in prison.” Compl. at 5. Plaintiff’s Complaint contains allegations that are speculative

26 and does not plausibly suggest that Defendants would know that Plaintiff faces a

27 “substantial risk of serious harm.” He does not allege that he ever experienced any

28 specific threats from anyone while housed at RJD and he is currently housed at a

1 different prison. Plaintiff has not alleged that he has received any specific threats at his

2 current place of incarceration, and he does not allege that any of the other inmates who

3 may have received a copy of the incident report are housed at his current location. There

4 are no allegations of any serious risk of harm from which the Court might reasonably

5 infer that Defendants were aware or became aware that Plaintiff faced any risk, let alone

6 a substantial one from any other inmate. Iqbal, 556 U.S. at 678; see also Gaut v. Sunn,

7 810 F.2d 923. 925 (9th Cir. 1987) (“mere threat” of possible harm does not violate the

8 Eighth Amendment); Berg v. Kincheloe, 749 F.2d 457, 459 (9th Cir. 1986) (deliberate

9 indifference requires showing of “more than a mere suspicion that an attack will occur.”);

10 Hernandez v. Schriro, No. CV 05-2853-PHX-DGC, 2011 WL 2910710, at *6 (D. Ariz.

11 July 20, 2011) (“While theoretical risk is always possible, Farmer requires more—

12 ‘conditions posing a substantial risk of serious harm.’”).

13 As currently pleaded, the Court finds that Plaintiff’s Complaint is devoid of any

14 allegations that any Defendant was deliberately indifferent to a serious risk to his health

15 or safety. Farmer, 511 U.S. at 834. For these reasons, Plaintiff’s Eighth Amendment

16 claims as alleged against Defendants are subject to sua sponte dismissal pursuant to 28

17 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1).

18 IV. CONCLUSION

19 For all the reasons explained, the Court:

20 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

21 (ECF No. 2).

22 2. DIRECTS the Secretary of the CDCR, or their designee, to collect from

23 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing

24 monthly payments from his account in an amount equal to twenty percent (20%) of the

25 preceding month’s income and forwarding those payments to the Clerk of the Court each

26 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

27 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

28 ASSIGNED TO THIS ACTION.

l 3. DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail

2 Jeff Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-

3 0001, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov;

4 4. DISMISSES Plaintiff's Complaint sua sponte and with leave to amend in its

5 || entirety based on his failure to state a claim upon which relief may be granted pursuant to

6 U.S.C. § 1915(e)(2) and § 1915A(b)(1).

7 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in

8 || which to file a First Amended Complaint which cures the deficiencies of pleading noted

9 this Order. Plaintiff's First Amended Complaint must be complete by itself without

10 |/reference to his original Complaint. Defendants not named and any claims not re-alleged

11 |/in the First Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1;

12 || Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir.

13 |} 1989) (‘[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693

14 || F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which

15 not re-alleged in an amended pleading may be “considered waived if not repled.”).

16 If Plaintiff fails to timely file a First Amended Complaint, the Court will enter a

17 || final Order dismissing this civil action based both on Plaintiffs failure to state a claim

18 |}upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

19 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring

20 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

21 ||not take advantage of the opportunity to fix his complaint, a district court may convert the

22 || dismissal of the complaint into dismissal of the entire action.’’)

23 IT IS SO ORDERED.

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35 Dated: September 1, 2023 wm Sin 4,

26 Honorable James E. Simmons, Ir

27 Unites States District Judge

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