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McKinley v. R. Frentz

United States District Court, S.D. California

June 21, 2017

DONNIE RAY McKINLEY JR., Inmate #H-83058, Plaintiff,
v.
R. FRENTZ, R. YOUNG, D. PASCHAL, C. STEWART, BETH, K. MOORE, L. KEARNS, E. BUTLER, J.T. OCHOA, L. McEWEN, J. BEARD, R. JOHNSON AND R. MADDEN, Defendants.

          ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; AND (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM WITHOUT LEAVE TO AMEND

          HON. CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE.

         Donnie Ray McKinley Jr. (“Plaintiff”), a California state prisoner incarcerated at Centinela State Prison in Imperial, California, and proceeding pro se, has filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff states that upon his incarceration in 1997, money began being taken from his prisoner trust account to satisfy a $10, 000 restitution order which he alleges was not facially valid, and which he succeeded in having reduced in 2014 to $200, and although he was refunded $714.95, which the prison authorities contend is the entire amount taken from his inmate trust account to satisfy the restitution order, he is unable to obtain a true accounting because a print-out of his inmate trust account statement prior to 2008 is not available due to the installation of a new accounting system in 2008. (Compl. at 6-23.) He claims that the collection of funds to satisfy a facially invalid restitution order, and the failure to provide him with a true accounting, has violated his Fourteenth Amendment right to due process of law, and his Eighth Amendment right to be free from excessive fines and cruel and unusual punishments. (Id.) Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a), but has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.)

         I. Plaintiff's Motion to Proceed IFP

         All parties instituting any civil action, suit or proceeding in a district court of the United States must pay a filing fee. See 28 U.S.C. § 1914(a).[1] An action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a prisoner, even if he is granted leave to proceed IFP, he remains obligated to pay the full entire fee in “increments, ” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2).

         Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), prisoners seeking leave to proceed IFP must submit a “certified copy of the trust fund account statement (or institutional equivalent) for the . . . six-month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial payment of 20 percent of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects subsequent payments, assessed at 20 percent of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

         In support of his IFP Motion, Plaintiff has submitted a prison certificate attesting to his trust account balance and activity for the six-month period prior to the filing of his Complaint as required by 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. This certificate shows that Plaintiff has had no monthly deposits, has carried no average balance, and had no available funds to his credit at the time of filing. [ECF No. 2 at 4.] Therefore, the Court GRANTS Plaintiff's Motion to Proceed IFP and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner's IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when payment is ordered.”) However, the entire $350 balance of the filing fee due for this case must be forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

         II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

         A. Standard of Review

         “The Court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, ” 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.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek 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).

         All complaints must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. The “mere possibility of misconduct” falls short of meeting the Iqbal plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

         “When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“Under § 1983, when determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). However, while the court has an “obligation . . . where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt, ” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc), it may not, in so doing, “supply essential elements of the claim that were not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         “Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

         B. Plaintiff's Allegations

         Plaintiff alleges that when he was received into the California Department of Corrections and Rehabilitation (“CDCR”) in 1997, Defendant Correctional Case Records Specialist R. Frentz entered a $10, 000 restitution fine into his CDCR record without proper documentation from the trial court. (Compl. at 11-12.) From 1997 to 1999, Defendants Ruth Young, C. Stewart and Beth of the Legal Processing Unit of the CDCR failed to become aware of the improper fine, and Defendant Delores Paschal failed to properly supervise those Defendants. (Id. at 12-13.) From 1999-2001, Defendants Correctional Case Records Managers Kathy Moore and L. Kearns were deliberately indifferent to the lack of proper authentication of the restitution fine. (Id. at 13.) Plaintiff filed an administrative appeal on January 18, 2010, challenging the failure to properly authenticate his restitution fine, and was interviewed on February 8, 2010 by Defendant Correctional Case Records Supervisor E. Butler. (Id.) Defendant Butler denied relief, and Plaintiff alleges that Butler's supervisor Defendant J.T. Ochoa, his supervisor Defendant L. McEwen, and Defendant J. Beard, the Secretary of the CDCR at the time, all chose to remain deliberately indifferent to the failure to properly authenticate the restitution order. (Id. at 13-14.) On February 27, 2015, the Riverside Superior Court found that Plaintiff had not been advised of the imposition of the ...


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