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Lewis v. Davis

United States District Court, S.D. California

July 8, 2019

BRIAN DEVERICK LEWIS, CDCR #J-49028, Plaintiff,
v.
R. DAVIS; SANCHEZ. Defendants.

          ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF NO. 2] AND (2) DISMISSING CERTAIN CLAIMS FOR FAILURE TO STATE A CLAIM

          CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE

         Plaintiff, Brian Deverick Lewis, an inmate currently incarcerated at Corcoran State Prison (“CSP”) located in Corcoran, California has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) In addition, Plaintiff has filed a motion to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). For the reasons herein, the Court grants Plaintiff's IFP motion and, pursuant to a mandatory screening of the Complaint, dismisses Plaintiff's claims against Defendant Davis for failure to state a claim based on the statute of limitations. The Court finds that Plaintiff has stated First Amendment claims against Defendant Sanchez.

         A. Plaintiff's IFP Motion

         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). However, prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in “increments” or “installments, ” Bruce v. Samuels, 136 S.Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their 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) also 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 IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate Statement Report as well as a Prison Certificate completed by a trust account official at CSP. (ECF No. 2 at 4, 6- 8); 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These documents show that Plaintiff carried an average monthly balance of $416.38, maintained $406.41 in average monthly deposits to his trust account for the 6-months preceding the filing of this action, and had an available balance of $398.99 to his credit at the time of filing. (ECF No. 2 at 4, 7.)

         Therefore, the Court grants Plaintiff's motion to proceed IFP (ECF No. 2) and assesses his initial partial filing fee to be $83.28 pursuant to 28 U.S.C. § 1915(b)(1). The Court further directs the Secretary of the CDCR, or his designee, to collect this initial filing fee only if sufficient funds are available in Plaintiff's account at the time this Order is executed. 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 remaining balance of the $350 total fee owed in this case must be collected by the agency having custody of the prisoner and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).

         B. Mandatory Screening Under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

         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 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); 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)).

         “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); Wilhelm, 680 F.3d at 1121.

         1. Plaintiff's Allegations

         Plaintiff was previously housed at the Richard J. Donovan Correctional Facility (“RJD”) in 2014. (See Compl. at 9.) On September 11, 2014, Defendant Davis “called Plaintiff to his office in order to conduct at [sic] Rules Violation Report (“RVR”)” that had been issued to Plaintiff in August of 2014. (Id.) At the hearing, Davis was the “Senior Hearing Officer (“SHO”)” and Plaintiff claims the hearing became “contentious between Plaintiff and Davis.” (Id.) Plaintiff “objected” to Davis's guilt finding and “assessing him 10 days of continuous confinement to his quarters (“CTQ”).” Plaintiff alleges that five days prior to the RVR hearing, Davis had already “assessed Plaintiff 10 days of CTQ.” (Id.) Davis responded to Plaintiff's objection by purportedly saying “I don't care, you're guilty, you're getting another 10 days.” (Id.) Plaintiff claims he ultimately served “15 continuous days on CTQ status” which he alleges “violate[s] CDCR regulations.” (Id.)

         Plaintiff's RVR hearing was found to be “invalid and the CDCR ordered it to be re-issued and reheard.” (Id.) Davis “called Plaintiff to his office to rehear the RVR” on October 11, 2014. (Id.) J. Meza, Plaintiff's staff assistant, “came to Plaintiff's cell and told Plaintiff that Davis wanted to hear the RVR.” (Id.) Plaintiff “told Meza that Davis had abused his authority” in the previous RVR hearing. (Id. at 10.) Plaintiff asked Meza to postpone the hearing “so that Plaintiff could go before a different SHO.” (Id.) Meza “told Plaintiff he would try to get the hearing moved” but ten minutes later he “returned to Plaintiff's cell” and told Plaintiff that Davis denied his request. (Id.) Davis also purportedly told Meza that “he would be holding the hearing with or without Plaintiff and that Plaintiff would be found guilty.” (Id.) Plaintiff told Mesa “he wasn't coming to the hearing.” (Id.)

         Meza later returned to Plaintiff's cell and informed him that “Davis said that if Plaintiff did not ‘show up' for the hearing then he would put Plaintiff on C-status.” (Id.) Plaintiff “still refused.” (Id.) On October 11, 2014, “Davis found Plaintiff guilty of the RVR” and ordered that “Plaintiff be ...


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