The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge
ORDER SUA SPONTE DISMISSING THIRD AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
On February 17, 2009, Plaintiff, Gregory Sylvester Rideau, Jr., a state inmate currently incarcerated at Calipatria State Prison and proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983. Before the Court could conduct its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and 1915A(b), Plaintiff filed a First Amended Complaint ("FAC"). The Court dismissed Plaintiff's FAC on August 6, 2009 but permitted him leave to file a Second Amended Complaint in order to correct the deficiencies of pleading identified by the Court.
See Aug. 6, 2009 Order at 7-8. On September 8, 2009, Plaintiff filed his Second Amended Complaint ("SAC"). The Court, once again, dismissed his SAC for failing to state a claim. See Oct. 26, 2009 Order at 7-8. Plaintiff appealed this Order to the Ninth Circuit Court of Appeals on November 6, 2009. This Appeal was later dismissed because the Order from which Plaintiff appealed was not yet final. On December 18, 2009, this Court dismissed Plaintiff's entire action and entered judgment because Plaintiff had failed to file a Third Amended Complaint. On January 15, 2010, Plaintiff sought leave to reopen the case which was granted by this Court. Plaintiff then requested and received extensions of time to file his Third Amended Complaint. Finally, on June 4, 2010, Plaintiff filed his Third Amended Complaint ("TAC").
II. SUA SPONTE SCREENING PER 28 U.S.C. § 1915(e)(2) and § 1915A
As the Court stated in its previous Orders, the Prison Litigation Reform Act (PLRA") obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).
As currently pleaded, the Court finds that Plaintiff's Third Amended Complaint fails to state a cognizable claim under 42 U.S.C. § 1983. Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).
In each one of Plaintiff's pleadings from his original Complaint to this Third Amended Complaint, he has sought to challenge the method by which money is garnished from his inmate trust account to pay towards his restitution that was imposed when he was convicted and sentenced in 1996.
In his Third Amended Complaint, Plaintiff claims various prison officials used an "accounting fraud scheme" in violation of his Fourteenth Amendment rights to garnish money from his inmate trust account. See TAC at 4. Specifically, Plaintiff claims that prison officials were improperly categorizing monies that he received from his family as "inmate wages." Id. Even if that were the case, the monies that Plaintiff receives from his family, or other sources, and deposited into his inmate trust account can be subjected to garnishment towards the amount of restitution he owes. California law requires a restitution fine to be collected in a manner set forth by Cal. Pen. Code § 2085.5(a) which provides, in part, that:
"the Director of Corrections shall deduct a minimum of 20 percent or the balance owing on the fine amount, whichever is less, up to a maximum of 50 percent from the wages and trust account deposits of a prisoner, unless prohibited by federal law, and shall transfer that amount to the California Victim Compensation and Government Claims Board for deposit in the Restitution Fund in the State Treasury."
Cal. Pen. Code § 2085.5(a)
As the Court previously informed Plaintiff, there are certain exemptions from this garnishment but he must plead facts to show that the monies deposited by his family or friends fall under these exemptions which are as follows:
"Joint Venture Program Deposits, funds designated to pay the costs of a family visit ("family visit funds"), Temporary Community Leave funds, federal disability payments, veteran benefits, any reimbursement to an inmate as a result of a claim for lost or damaged property, or money reimbursed to an inmate due to a failed ...