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Contreras v. Diaz

United States District Court, S.D. California

January 13, 2020

RAMON CONTRERAS, CDCR #V-99014, Plaintiff,
v.
RALPH DIAZ; PATRICK COVELLO; K. COTTRELL; C. ROCHA; V. CORTES; H. CRUZ; M. SEAMAN; PLASCENCIA, Defendants.

          ORDER: 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF NO. 2]; AND 2) DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915(E)(2), 1915A(B) WITH LEAVE TO AMEND [ECF NO. 1]

          Hon. Cynthia Bashant, United States District Judge.

         On November 1, 2019, Plaintiff Ramon Contreras, currently incarcerated at Corcoran State Prison located in Corcoran, California and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1). Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Mot. to Proceed IFP, ECF No. 2). For the reasons below, the Court GRANTS Plaintiff's Motion to Proceed IFP and DISMISSES the Complaint with leave to amend.

         I. MOTION TO PROCEED IFP

         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, -- U.S. --, 136 S.Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015). Prisoners must pay the entire fee 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, courts assess 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.

         As required by Local Civil Rule 3.2, Plaintiff has submitted a copy of his CDCR Inmate Statement Report. (See Mot. to Proceed IFP at 4.) This statement shows that Plaintiff's available balance is insufficient to impose an initial partial filing fee at the time of filing. Therefore, the Court will not direct the Secretary of the CDCR, or his designee, to collect an initial partial filing fee at this time. 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, 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.”). However, the 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).

         II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)

         A. Standard of Review

         Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also 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) (citation omitted).

         “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 “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.

         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 Factual Allegations

         In 2018, Plaintiff was housed at the Richard J. Donovan Correctional Facility (“RJD”). (See Compl. at 1.) On July 13, 2018, RJD correctional officers “conducted a full search of the housing unit Plaintiff was housed in.” (Id. at 14.) Correctional Officer Rocha claimed that he “discovered a controlled substance within Plaintiff's personal property.” (Id.) Although Plaintiff was housed with another inmate, he was “the only inmate charged and placed in [administrative segregation] for the discovery of the controlled substance.” (Id.) Lieutenant Cottrell “was the superior officer overseeing the searches and determining which inmates would be placed” in administrative segregation. (Id.)

         Following a disciplinary hearing, Plaintiff was “ultimately exonerated of the charges” and it was “determined that the Plaintiff's cellmate should have also been placed into [administrative segregation] until a final determination of investigation was completed.” (Id. at 15.)

         Plaintiff alleges the reason Rocha “lied about where and in whose property he discovered the controlled substance is because he did not want to deal with placing Plaintiff's cellmate [] into [administrative segregation] because he is hearing impaired.” (Id.)

         During a September 6, 2018 “committee hearing, ” Plaintiff agreed to accept the “results of the field test that was conducted on the controlled substance in order to proceed with the truth finding process.” (Id. at 15-16.) Plaintiff claims he was assured by Warden Covello and “committee members” that the test “could not be used as evidence to find him guilty at his [Rule Violation Report (“RVR”)] hearing.” (Id. at 16.)

         On September 20, 2018, Covello again “reassured” Plaintiff that the field test he agreed to would “not be used against him” and Covello would “follow Plaintiff's case in order to make sure the proper procedure would be followed.” (Id.)

         On October 11, 2018, “Plaintiff went before Lieutenant V. Cortes for his RVR hearing.” (Id.) Plaintiff “presented his case establishing his innocence.” (Id.) Cortes “found the Plaintiff guilty on the ground that he accepted ‘ownership' of the controlled substance” when he signed the chrono agreeing to take the field test. (Id.) Plaintiff informed Cortes that Corvello “and other committee members had guaranteed” that this chrono would not be used as evidence against him. (Id.) Cortes responded by stating “that if the warden was conducting the hearing he would probably find Plaintiff not guilty, but since he was the hearing officer, he was finding Plaintiff guilty.” (Id.)

         Associate Warden and Chief Disciplinary Officer J. Juarez “failed to find that the decision taken by [Cortes] as improper” and “affirmed” the disciplinary decision by Cortes.” (Id.) Plaintiff filed an appeal of this decision. (See id.) Plaintiff's father also “sent letters to the Officer of Internal Affairs” and the “Office of the Ombudsman” when he learned of the guilty finding. (Id.)

         Plaintiff claims “two representatives” of the “Office of the Ombudsman” were present at his December 6, 2018 committee hearing. (Id. at 17.) During the hearing, Plaintiff explained that he was only found guilty based on the signing of a chrono that he had been “told by Warden Covello and other committee members . . . could not be used as evidence to find him guilty.” (Id.) Juarez “acknowledged that he made an error affirming” Cortez's “guilty finding” and “ordered the release of the Plaintiff” from administrative segregation. (Id.) Juarez also “ordered the RVR re-issued and reheard on the ground that a due process violation occurred.” (Id.) As a result of the guilty finding, Plaintiff “spent unjustly approximately five months” in administrative segregation. (Id.)

         While in administrative segregation, Plaintiff was “not allowed to have his personal property/appliances, ” was only given one pair of “boxers, ” “socks, a jumpsuit, and linen.” (Id.) In addition, every time Plaintiff left his cell he was placed “in handcuffs.” (Id.) Plaintiff was not permitted contact visits and only “allowed a maximum of 10 hours of outside recreation per week.” (Id. at 17-18.) Plaintiff claims that these ‚Äúconditions were a dramatic ...


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