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James Bustamante v. R. Lopez

February 19, 2013

JAMES BUSTAMANTE,
PLAINTIFF,
v.
R. LOPEZ,
DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

SCREENING ORDER ORDER DISMISSING THIS ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED PURSUANT TO SECTION 1983 (Doc. 1.)

ORDER FOR THIS DISMISSAL TO COUNT AS A STRIKE PURSUANT TO 28 U.S.C. § 1915(g) ORDER FOR CLERK TO CLOSE CASE

I. BACKGROUND

James Bustamante ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on February 28, 2011. (Doc. 1.) On March 11, 2011, Plaintiff consented to Magistrate Judge jurisdiction in this action, and no other parties have made an appearance. (Doc. 4.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

Plaintiff's Complaint is now before the Court for screening.

II. SCREENING REQUIREMENT

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint is required to contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009).

III. SUMMARY OF COMPLAINT

Plaintiff is presently incarcerated at Corcoran State Prison ("CSP") in Corcoran, California, in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). It appears from Plaintiff's allegations in the Complaint, along with the documents provided, that Plaintiff was sentenced on March 31, 1995 in Sacramento County Superior Court Case No. 93F00603, People of the State of California v. Bustamante, and was ordered to pay restitution in the amount of $8,000.00, pursuant to California Government Code § 13967(c).

In the Complaint, Plaintiff challenges the manner in which restitution is being collected from his prison trust account by the CDCR. Plaintiff names CSP Warden R. Lopez as defendant and seeks to hold him liable for due process violations based on the Warden's responsibility to implement policies and to authorize his employees to deduct money from Plaintiff's prison trust account. Plaintiff requests a determination by the Court whether the prison is authorized to deduct money from his trust account, under California Penal Code § 2085.5, to pay restitution, without evidence that any victims of his crime have sought or received any compensation from the California Victims Compensation and Government Claims Board ("VCGCB").

Plaintiff requests declarative and injunctive relief.

IV. PLAINTIFF'S CLAIMS

The Civil Rights Act under which this action was ...


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