“A district court should not 11 dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 12 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint 13 could not be cured by amendment.’”
How later courts described this case
- “A district court should not 11 dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 12 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint 13 could not be cured by amendment.’”
- noting that claims 9 dismissed with leave to amend which are not re-alleged in an amended pleading may be 10 || “considered waived if not repled”
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 KRISTIN HARDY, Case No.: 3:24-cv-0899-JAH-MSB
CDCR #AA-8633,
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ORDER: (1) GRANTING MOTION
Plaintiff,
13 TO PROCEED IN FORMA
vs. PAUPERIS;
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15 (2) DENYING MOTION FOR
A. SILVA, JOHN DOE, EXTENSION OF TIME AS MOOT;
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Defendants.
17 (3) DISMISSING COMPLAINT
WITHOUT PREJUDICE FOR
18
FAILING TO STATE A CLAIM
19 PURSUANT TO 28 U.S.C. §§
1915(e)(2) & 1915A(b)
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22 BACKGROUND
23 On May 20, 2024, Kristin Hardy (“Hardy” or “Plaintiff”), a prisoner proceeding pro
24 se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983, along with a Motion to
25 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). ECF Nos. 1, 2. In his
26 Complaint, Hardy alleges Defendants violated his constitutional rights when they
27 confiscated and returned-to-sender, a parcel containing educational books Hardy had
28 ordered by mail. See ECF No. 1. On May 23, 2024, the Court denied Hardy’s IFP motion
1 and dismissed the action because Hardy failed to include a certified copy of his trust
2 account statement for the 6-month period immediately preceding the filing of his
3 Complaint, as required under 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. ECF No. 3.
4 The Court gave Plaintiff an opportunity to have his case reopened by either paying the
5 filing fee or submitting a properly supported IFP request. Id.
6 On June 27, 2024, Plaintiff filed a Motion for an Extension of Time to submit a copy
7 of his trust account statement. ECF No. 4. But a few days later, before the Court could rule
8 on his request for extension of time, Hardy submitted a copy of his trust account statement,
9 and the case was reopened. See ECF No. 5. For the reasons discussed below, the Court
10 grants Plaintiff’s IFP motion, denies his request for an extension of time as moot, and
11 dismisses the Complaint without prejudice for failure to state a claim.
12 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 $405.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire
16 fee at the time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant
17 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);
18 cf. Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an]
19 IFP application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the
20 fee[s] [a]re paid.”).
21 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of
22 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account
23 statement (or institutional equivalent) for . . . the 6-month period immediately preceding
24 the filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d 1113,
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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of
27 $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee
Schedule, § 14 (eff. Dec. 1, 2023). The additional $55 administrative fee does not apply to persons
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1 1119 (9th Cir. 2005). Using this financial information, the court “assess[es] and when funds
2 exist, collect[s], … an initial partial filing fee,” which is “calculated based on ‘the average
3 monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the
4 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly
5 payments of 20 percent of the preceding month’s income credited to the prisoner’s
6 account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). In short, while
7 prisoners may qualify to proceed IFP without having to pay the full statutory filing upfront,
8 they remain obligated to pay the full amount due in monthly payments. See Bruce v.
9 Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281
10 F.3d 844, 847 (9th Cir. 2002).
11 As discussed above, Plaintiff has now provided a copy of his prison certificate and
12 trust account statement, in support of his IFP motion. ECF No. 5. During the six months
13 prior to filing suit, Plaintiff had an average monthly balance of $13.57, average monthly
14 deposits of $29.06, and an available account balance of $0.08 at the time he filed suit. Id.
15 at 3. Accordingly, the Court GRANTS Plaintiff’s IFP motion and assesses an initial partial
16 filing fee of $5.81 pursuant to 28 U.S.C. § 1915(b)(1). However, this initial fee need be
17 collected only if sufficient funds are available in Plaintiff’s account at the time this Order
18 is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be
19 prohibited from bringing a civil action or appealing a civil action or criminal judgment for
20 the reason that the prisoner has no assets and no means by which to pay the initial partial
21 filing fee”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-
22 valve” preventing dismissal of a prisoner’s IFP case based solely on “failure to pay . . . due
23 to the lack of funds available to him when payment is ordered.”). The California
24 Department of Corrections and Rehabilitation (“CDCR”) must thereafter collect the full
25 balance of the $350 total fee owed in this case and forward payments to the Clerk of the
26 Court as provided by 28 U.S.C. § 1915(b)(2).
27 Having granted Plaintiff’s IFP request, the Court DENIES his Motion for Extension
28 of Time (ECF No. 4) to submit his trust account statement as moot.
1 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 In short, to survive screening, Plaintiff’s claims must be facially plausible, which
18 requires sufficient factual detail to allow the Court to reasonably infer that each named
19 defendant is liable for the misconduct alleged. Id; see also Moss v. U.S. Secret Serv., 572
20 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is
21 not sufficient, and mere consistency with liability falls short of satisfying the plausibility
22 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
23 “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right
24 secured by the Constitution and laws of the United States, and (2) that the deprivation was
25 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698
26 F.3d 1128, 1138 (9th Cir. 2012).
27 B. Plaintiff’s Allegations
28 Hardy alleges that in February of 2022, he enrolled in paralegal correspondence
1 courses provided by “Blackstone.” ECF No. 1 at 2. Hardy paid a fee of $825.00 and was
2 to receive books from Blackstone “in shipments of three whenever an exam was
3 completed.” Id.
4 On or about April 20, 2023, Blackstone mailed three books to Hardy at R.J. Donovan
5 Correctional Facility (“RJD”), where Hardy was then-confined in the administrative
6 segregation unit. Id. When Plaintiff did not receive the books, he asked the Receive and
7 Release (“R&R”) Sergeant, who he identifies as “John Doe,” about the shipment. Doe told
8 Hardy that Silva, an RJD correctional officer, had returned the books because Hardy was
9 in administrative segregation. Doe gave Plaintiff a copy of a “notice of disapproved books”
10 which indicated the shipment had been “returned to sender” by Silva on May 1, 2023. Id.
11 As a result, Hardy was charged $30.00 to have the books re-shipped and “lost six months
12 of studies time.” Id.
13 Hardy filed an administrative appeal on the matter but was denied relief. Over the
14 course of the appeal process, Plaintiff learned that R&R officers, such as Doe, are
15 “responsible for the property of inmates” who, like Hardy, had recently arrived at RJD
16 from another institution. Id.
17 C. Discussion
18 In his Complaint, Hardy alleges Defendants Silva and Doe violated his First
19 Amendment and Due Process rights when they deprived him of the shipment of books. Id.
20 at 2–3. He seeks $6500 in money damages from each defendant. Id. at 4.
21 1. First Amendment
22 Hardy alleges Silva and Doe2 violated his First Amendment rights by improperly by
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2 The Federal Rules of Civil Procedure do not authorize or prohibit the use of unnamed parties,
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but Rule 10 does require a plaintiff to include the names of all parties in his complaint. See Fed.
26 R. Civ. P. 10(a). “A plaintiff may refer to unknown defendants as Defendant John Doe 1, John
Doe 2, John Doe 3, and so on, but he must allege specific facts showing how each particular doe
27 defendant violated his rights.” Cuda v. Employees/Contractors/Agents at OR OCCC, 2019 WL
2062945, at *4 (D. Haw. 2019). Courts disfavor Doe pleading in an IFP case because in the event
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1 returning his package to the sender “due to [his] ad-seg status,” despite regulations
2 permitting Hardy to have books while in administrative segregation. ECF No. 1 at 2.
3 Generally, prisoners have “a First Amendment right to send and receive mail.” Witherow
4 v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curium). However, a temporary delay or
5 isolated incident of delay or other mail interference without evidence of improper motive
6 does not violate a prisoner’s First Amendment rights. See Crofton v. Roe, 170 F.3d 957,
7 961 (9th Cir. 1999) (temporary delay in the delivery of publications did not violate inmate’s
8 First Amendment rights); accord Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990)
9 (isolated incidents of mail interference without evidence of improper motive do not give
10 rise to a constitutional violation); Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999)
11 (content-neutral, short-term, and sporadic delays in prisoner’s receipt of mail did not
12 violate his First Amendment rights). Absent evidence of a broader plan or course of
13 conduct to censor plaintiff’s mail unconstitutionally, an error by prison officials does not
14 justify relief under § 1983. See Lingo v. Boone, 402 F. Supp. 768, 773 (C.D. Cal. 1975)
15 (finding prisoner not entitled to monetary relief under § 1983 where prison officials
16 erroneously withheld a single piece of mail on the grounds that it was inflammatory);
17 Canales v. Guzman, No. 3:23-cv-1059-GPC-MSB, 2023 WL 5418771, at *4 (S.D. Cal.
18 2023) (finding allegation of a single incident of negligence in failing to deliver the
19 plaintiff’s package insufficient to state a First Amendment claim).
20 In his Complaint, Hardy alleges Defendants improperly “disapproved” the delivery
21 of his books and had them returned to the vendor because he was in administrative
22 segregation. Even assuming it was error for the package to be returned-to-sender, Hardy
23 alleges no improper motive on the part of Silva and/or Doe. And such an isolated incident
24 is insufficient to state a First Amendment claim. See Crofton, 170 F.3d at 961. Additionally,
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United States Marshal or deputy marshal to fulfill his or her duty to serve an unnamed defendant.
27 See Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d); Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir.
1994) (stating that in order to properly effect service under Rule 4 in an IFP case, the plaintiff is
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1 Plaintiff admits that he was able have the books re-shipped and ultimately received them,
2 albeit belatedly. ECF No. 1 at 2. Therefore, Hardy has failed to state a First Amendment
3 claim against Defendants and as such, the Court DISMISSES the claim without prejudice.
4 See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); Iqbal, 556 U.S. at 678.
5 2. Due Process
6 Hardy alleges Defendants violated his right to due process by having his books
7 returned to sender without giving him sufficient notice. ECF No. 1 at 2–3. The Due Process
8 Clause of the Fourteenth Amendment of the United States Constitution protects Plaintiff
9 from being deprived of property without due process of law, Wolff v. McDonnell, 418 U.S.
10 539, 556 (1974), and Plaintiff has a protected interest in his personal property, Hansen v.
11 May, 502 F.2d 728, 730 (9th Cir. 1974). Authorized, intentional deprivations of property
12 are actionable under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532,
13 n.13 (1984); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), but the Due Process
14 Clause is violated only when the agency “prescribes and enforces forfeitures of property
15 without underlying statutory authority and competent procedural protections,” Nev. Dep’t.
16 of Corr. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (citing Vance v. Barrett, 345 F.3d
17 1083, 1090 (9th Cir. 2003)) (internal quotations omitted). The Due Process Clause is not
18 violated by the random, unauthorized deprivation of property so long as the state provides
19 an adequate post-deprivation remedy. Hudson, 468 U.S. at 533; Barnett v. Centoni, 31 F.3d
20 813, 816–17 (9th Cir. 1994).
21 Here, Hardy’s claim that his package of books was improperly returned to the vendor
22 fails to give rise to a cognizable claim for relief. A brief delay in the processing of an
23 inmate’s mail without notice to the inmate is not a violation of the Fourteenth Amendment.
24 Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir. 2002). “Only if the failure to provide notice
25 was pursuant to prison policy does this constitute a due process violation actionable under
26 § 1983.” Id. At best, Plaintiff’s claim reflects a temporary, unauthorized deprivation of
27 property, which is not cognizable under section 1983. To the extent Hardy seeks
28 compensation for the $30.00 in additional fees he paid to have the books re-shipped,
1 Plaintiff’s claim may be actionable under state law, but such a claim must be brought in
2 state court rather than in federal court. Indeed, Plaintiff has an adequate post-deprivation
3 remedy under California law and therefore, he may not pursue a due process claim arising
4 out of the unlawful confiscation of his personal property. Barnett, 31 F.3d at 816–17 (citing
5 Cal. Gov’t Code §§ 810–895). Accordingly, Hardy has failed to state a cognizable due
6 process claim against Defendants. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); Iqbal, 556
7 U.S. at 678. The Court therefore DISMISSES the claim without prejudice.
8 D. Leave to Amend
9 In light of Plaintiff’s pro se status the Court GRANTS him leave to amend. See
10 Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not
11 dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C.
12 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint
13 could not be cured by amendment.’”) (quoting Akhtar v Mesa, 698 F.3d 1202, 1212 (9th
14 Cir. 2012)).
15 CONCLUSION AND ORDER
16 For reasons discussed above, the Court:
17 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
18 (ECF No. 2).
19 2. DENIES Plaintiff’s Motion for Extension of Time (ECF No. 4) as moot.
20 3. ORDERS the Secretary of the CDCR, or his designee, to collect from
21 Plaintiff’s trust account the $5.81 initial filing fee assessed, if those funds are available at
22 the time this Order is executed, and forward whatever balance remains of the full $350
23 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding
24 month’s income to the Clerk of the Court each time the amount in the account exceeds $10
25 pursuant to 28 U.S.C. § 1915(b)(2).
26 4. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff
27 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, via
28 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.
1 5. DISMISSES the Complaint without prejudice and with leave to amend for
2 || failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).
3 6. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in
4 || which to file a First Amended Complaint which cures the deficiencies of pleading noted in
5 || this Order. Specifically, Plaintiffs Amended Complaint must be complete by itself without
6 ||reference to any previous version of his pleading; Defendants not named and any claims
7 ||not re-alleged in the Amended Complaint will be considered waived. See S.D. Cal. CivLR
8 || 15.1; Hal Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims
9 dismissed with leave to amend which are not re-alleged in an amended pleading may be
10 || “considered waived if not repled”); Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896
11 1542, 1546 (9th Cir. 1989). If Plaintiff fails to timely amend, the Court will enter a
12 || final Order dismissing this civil action. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir.
13 |}2005) (‘If a plaintiff does not take advantage of the opportunity to fix his complaint, a
14 || district court may convert the dismissal of the complaint into dismissal of the entire
15 || action.’’)
16 || IT ISSO ORDERED.
17 || Dated: November 13, 2024
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19 Hgn. John A. Houston
0 ynited States District Judge
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