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Lauri v. Neotti

United States District Court, S.D. California

November 17, 2017

MICHAEL LAURI, CDCR #P-76200, Plaintiff,
v.
TED NEOTTI, Warden; DANIELLE McGUIRE, Litigation Coordinator; RICHARD J. DONOVAN CORRECTIONAL FACILITY, Defendants.

          ORDER: 1) GRANTING REQUEST TO PROCEED IN FORMA PAUPERIS [ECF NO. 2] AND 2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2) AND § 1915A(B)

          Hon. Anthony J. Battaglia United States District Judge.

         MICHAEL LAURI (“Plaintiff”), currently incarcerated at California Men's Colony - East (“CMC”), in San Luis Obispo, California, and proceeding pro se, filed this civil rights action in the Central District of California in September 1, 2017 (ECF No. 1), together with a Request to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).

         Because Plaintiff claims prison officials at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California violated his Eighth and Fourteenth Amendment rights while he was incarcerated there on September 23, 2016, the Honorable Michael W. Fitzgerald transferred his case to this Court for lack of proper venue pursuant to 28 U.S.C. § 1391(b) and § 1406(a) on September 25, 2017 (ECF No. 5). Because Judge Fitzgerald found transfer was appropriate, he deferred consideration of Plaintiff's pending request to proceed IFP, and the corresponding duty to sua sponte determine whether Plaintiff's Complaint is frivolous, malicious, or fails to state a claim pursuant to 28 U.S.C. § 1915(e)(2), to this Court as well. (Id. at 3 & n.1.)

         I. Request to Proceed In Forma Pauperis

         All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400.[1] See 28 U.S.C. § 1914(a). The 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). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or “installments, ” Bruce v. Samuels, ___ U.S. ___, 136 S.Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

         Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6-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% 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% of the preceding month's income, in any month in which his 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); Bruce, 136 S.Ct. at 629.

         In support of his request to proceed IFP, Plaintiff has submitted a prison certificate authorized by a CMC accounting official and a copy of his CDCR Inmate Statement Report. See ECF No. 2; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These documents shows that while Plaintiff carried an average monthly balance of $.20, he had no monthly deposits to his account over the 6-month period immediately preceding the filing of his Complaint, and an available balance of zero at the time of filing. See ECF No. 2 at 3, 5. Based on this accounting, the Court GRANTS Plaintiff's request to proceed IFP, and will assess no initial partial filing fee pursuant to 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.”); Bruce, 136 S.Ct. at 630; Taylor, 281 F.3d at 850 (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.”). The Court will further direct the Secretary of the CDCR, or his designee, to instead collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). See id.

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

         A. Standard of Review

         Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Williams v. King, ___ F.3d ___, 2017 WL 5180205, at *2 (9th Cir. Nov. 9, 2017) (discussing 28 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). A complaint is “frivolous” if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).

         “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain 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 (2009) (internal quotation marks omitted).

         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.” Iqbal, 556 U.S. at 678. “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. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

         B. Plaintiff's Allegations

         Plaintiff claims RJD, its Warden Ted Neotti, and RJD's Litigation Coordinator Denise McGuire, violated his Fourteenth Amendment right to due process and the Eighth Amendment's proscription of cruel and unusual punishment on September 23, 2016, when they acted as “parties” to a San Diego Superior Court appellate proceeding during which a small claims judgment against the CDCR in Plaintiff's favor was vacated and remanded. (ECF No. 1 at 3, 5, 8.)

         Specifically, Plaintiff contends his TV, antenna, CD player, Timex watch, headphones, coaxial cable, and TV splitter were either lost or stolen during his transport between CMC and RJD on or about July 26, 2011. (Id. at 5.) After attempts to address his lost property issues were left unresolved via the CDCR's administrative appeals process, Plaintiff claims to have filed a small claims ...


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