Bassett v. Malveda

Opinion

6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 RICHARD D. BASSETT, Case No.: 20-cv-0160-BAS-AGS 11 CDCR #F-06286, (1) GRANTING MOTION TO 12 Plaintiff, PROCEED IN FORMA PAUPERIS [ECF No. 2]; 13 v. AND 14 I. MALVEDA, (2) SUA SPONTE DISMISSING 15 Defendant. COMPLAINT PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) 16 AND § 1915A(b)(1) [ECF No. 1] 17 18 Richard D. Bassett (“Plaintiff”), incarcerated at the Richard J. Donovan Correctional 19 Facility (“RJD”) located in San Diego, California, is proceeding pro se in this case with a 20 civil rights Complaint filed pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1). Plaintiff 21 alleges Defendant Malveda used excessive force against him in violation of his Eighth 22 Amendment rights. (Id. at 3–5.) 23 Plaintiff has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a); 24 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 25 § 1915(a). (Mot. to Proceed IFP, ECF No. 2.) 26 I. MOTION TO PROCEED IFP 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 5 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 6 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 7 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 8 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 10 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 11 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 12 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 13 trust account statement, the Court assesses an initial payment of 20% of (a) the average 14 monthly deposits in the account for the past six months, or (b) the average monthly balance 15 in the account for the past six months, whichever is greater, unless the prisoner has no 16 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 17 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 18 month’s income, in any month in which his account exceeds $10, and forwards those 19 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 20 136 S. Ct. at 629. 21 In support of his Motion to Proceed IFP, Plaintiff has submitted a copy of his CDCR 22 Inmate Statement Report, together with a prison certificate completed by an accounting 23 official at RJD attesting to his trust account activity. (ECF No. 3 at 1–5.) See 28 U.S.C. § 24 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These statements show that 25 Plaintiff had an available balance of only $0.16 at the time of filing (ECF No. 3 at 1.) Based 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed 28 1 on this accounting, no initial partial filing fee is assessed. See 28 U.S.C. § 1915(b)(4) 2 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action or 3 appealing a civil action or criminal judgment for the reason that the prisoner has no assets 4 and no means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; 5 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 6 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to 7 the lack of funds available to him when payment is ordered.”). 8 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), 9 declines to exact any initial filing fee because his prison certificate indicates he has “no 10 means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California 11 Department of Corrections and Rehabilitation (“CDCR”), or his designee, to instead collect 12 the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them 13 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 14 U.S.C. § 1915(b)(1). See id. 15 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) & 1915A 16 A. Standard of Review 17 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 18 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, 19 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is 20 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 21 immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 22 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 23 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 24 targets of frivolous or malicious suits need not bear the expense of responding.’” Nordstrom 25 v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, 26 Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 27 “The standard for determining whether a plaintiff has failed to state a claim upon 28 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 1 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 2 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 3 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 4 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 5 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 6 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 7 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 8 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 9 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 10 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 11 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 12 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 13 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 14 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 15 B. Plaintiff’s Factual Allegations 16 On May 3, 2019, Plaintiff alleges he was “conducting his assigned job duties” as a 17 “culinary worker” when Malveda, a “correctional supervising cook,” started an 18 “unnecessary argument with [Plaintiff] over a missing Kosher diet.” (Compl. at 3.) 19 Plaintiff told Malveda that he had no information regarding the missing meal and informed 20 Malveda that he “did not prepare them.” (Id.) He advised Malveda to “speak to the inmate 21 [Malveda] put in charge of Kosher diets.” (Id.) Plaintiff claims Malveda “stormed off.” 22 (Id.) 23 Approximately ten (10) minutes later, Plaintiff alleges Malveda “with malicious and 24 criminal intent” threw a “blunt object (ladle)” at Plaintiff which hit his upper back. (Id.) 25 Plaintiff “immediately turned around” and purportedly saw Malveda “staring at [him] with 26 an angry look” on his face. (Id.) Plaintiff said to Malveda, “what the [expletive].” (Id.) 27 Malveda allegedly picked up the ladle, “started straightening it out,” and began arguing 28 with Plaintiff. (Id.) 1 Correctional Officer Artega2 asked Plaintiff “what was the problem” and Plaintiff 2 explained what had just happened with Malveda. (Id. at 4.) Artega told Plaintiff “to just 3 go home for the day.” (Id.) 4 Upon exiting the dining hall, Plaintiff explained to Sergeant Rocha3 and another 5 unnamed Sergeant “what [Malveda] had done and was told by [Rocha] to go to medical.” 6 (Id.) Plaintiff was also told to wait for Rocha to “do a video interview on the staff assault 7 on inmate” which was later conducted. (Id.) Plaintiff alleges that Malveda has had “two 8 prior assaults on inmate workers.” (Id.) 9 Plaintiff seeks injunctive relief, $100,000 in compensatory damages, $100,000 in 10 punitive damages, and seeks to have Malveda “charged with felony assault with a weapon 11 other than a fire arm.” (Id. at 9.) 12 C. Analysis 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 14 elements: (1) that a right secured by the Constitution or laws of the United States was 15 violated, and (2) that the alleged violation was committed by a person acting under the color 16 of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 1035– 17 36 (9th Cir. 2015). Here, Plaintiff alleges that Malveda violated his Eighth Amendment 18 rights when he “with malicious and criminal intent [threw] a blunt object (ladle) at me, 19 hitting me in my back (upper).” (See Compl. at 3–4.) 20 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” 21 U.S. Const. Amend. VIII. The “unnecessary and wanton infliction of pain” constitutes 22 cruel and unusual punishment prohibited by the United States Constitution. Whitley v. 23 Albers, 475 U.S. 312, 319 (1986). Neither accident nor negligence constitutes cruel and 24 unusual punishment, as “[i]t is obduracy and wantonness, not inadvertence or error in good 25 faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments 26 Clause.” Id. 27 2 Artega is not a named Defendant. 28 1 When prison guards stand accused of using excessive force in violation of the Eighth 2 Amendment, “the core judicial inquiry is . . . whether force was applied in a good-faith 3 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” 4 Hudson v. McMillian, 503 U.S. 1, 7 (1992). The Court considers the following factors: (1) 5 the need for application of force; (2) the relationship between the need and the amount of 6 force used; (3) the extent of the injury inflicted; (4) the threat “reasonably perceived by the 7 responsible officials”; and (5) “any efforts made to temper the severity of a forceful 8 response.” Id. (citing Whitley, 476 U.S. at 321). “From such considerations inferences may 9 be drawn as to whether the use of force could plausibly have been thought necessary, or 10 instead evinced such wantonness with respect to the unjustified infliction of harm as is 11 tantamount to a knowing willingness that it occur.” Whitley, 475 U.S. at 321. 12 Not “every malevolent touch by a prison guard gives rise to a federal cause of 13 action.” Hudson, 503 U.S. at 9. “The Eighth Amendment’s prohibition of ‘cruel and 14 unusual’ punishments necessarily excludes from constitutional recognition de minimis uses 15 of physical force, provided that the use of force is not of a sort repugnant to the conscience 16 of mankind.” Id. (some internal quotation marks omitted). 17 Here, Plaintiff’s Complaint is devoid of any factual allegations that he suffered an 18 injury from Malveda allegedly throwing a ladle at him. The lack of an injury would indicate 19 that the amount of force used was, at most, de minimis rather than excessive. Thus, the 20 bare allegation that Defendant Malveda threw a ladle at him, without any further factual 21 elaboration, is simply not enough for the Court to find that Plaintiff has adequately stated 22 an Eighth Amendment excessive force claim. 23 Because Plaintiff’s Eighth Amendment excessive force claims fail to state a claim 24 upon which § 1983 relief can be granted, the Court DISMISSES Plaintiff’s Complaint in 25 its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 26 F.3d at 1126–27; Rhodes, 621 F.3d at 1004. 27 28 1 III. CONCLUSION AND ORDER 2 For the reasons discussed, the Court: 3 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 4 (ECF No. 2). 5 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 6 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 7 payments from his account in an amount equal to twenty percent (20%) of the preceding 8 month’s income and forwarding those payments to the Clerk of the Court each time the 9 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). PAYMENTS 10 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 11 TO THIS ACTION. 12 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, 13 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 14 4. DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim 15 upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 16 § 1915A(b)(1). 17 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 18 which to file an Amended Complaint which cures the deficiencies of pleading noted. 19 Plaintiff’s Amended Complaint must be complete by itself without reference to his original 20 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 21 will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 22 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 23 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 24 (noting that claims dismissed with leave to amend which are not re-alleged in an amended 25 pleading may be “considered waived if not repled.”). 26 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 27 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state 28 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1 |} 1915A(b), and his failure to prosecute in compliance with a court order requiring 2 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“Tf a plaintiff does 3 ||not take advantage of the opportunity to fix his complaint, a district court may convert the 4 || dismissal of the complaint into dismissal of the entire action.’’). 5 6. The Clerk of Court is directed to mail a form civil rights complaint to □□□□□□□□□ 6 ||for his use in amending. 7 IT IS SO ORDERED. 8 é 9 || DATED: March 13, 2020 (pill 4 (Asha 6 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8