1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LAVERN RAY ELZY Case No.: 3:20-cv-0545-JAH (BLM)

CDCR #BC-2819,

12

ORDER:

Plaintiff, 13 vs. 1) GRANTING MOTION TO 14

PROCEED IN FORMA PAUPERIS

J. DURAN, Correctional Officer,

15 [ECF No. 2] Defendant. 16

AND

17 2) SCREENING COMPLAINT 18 PURSUANT TO 28 U.S.C. § 1915(e)(2) 19 AND 28 U.S.C. § 1915A(b) 20 21 On March 20, 2020, Lavern Ray Elzy (“Plaintiff”), currently incarcerated at High 22 Desert State Prison (“HDSP”) located in Susanville, California, and proceeding pro se, 23 filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. See Compl., ECF 24 No. 1.1 In addition, Plaintiff has submitted a trust account statement from HDSP which 25

26 1 Plaintiff’s Complaint indicates he is incarcerated at Kern Valley State Prison (“KVSP”) [ECF No. 1], 27 but his trust account statement indicates he is incarcerated at HDSP. See ECF No. 2. According to the California Department of Corrections and Rehabilitation’s website, Plaintiff is currently incarcerated at 28 1 the Court construes as a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 2 U.S.C. § 1915(a). See ECF No. 2. 3 I. Plaintiff’s Motion to Proceed IFP 4 All parties instituting any civil action, suit or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 8 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 9 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 10 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 11 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 12 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 13 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 14 2002). 15 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 16 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 17 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 18 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 19 trust account statement, the Court assesses an initial payment of 20% of (a) the average 20 monthly deposits in the account for the past six months, or (b) the average monthly 21 balance in the account for the past six months, whichever is greater, unless the prisoner 22 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 23 custody of the prisoner then collects subsequent payments, assessed at 20% of the 24

25 26 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed 28 1 preceding month’s income, in any month in which his account exceeds $10, and forwards 2 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 3 Bruce, 136 S. Ct. at 629. 4 Plaintiff has submitted a prison certificate authenticated by a HDSP accounting 5 officer. See ECF No. 2 at 1; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 6 F.3d at 1119. This certificate attests that Plaintiff carried an average monthly balance of 7 $0.00 and had average monthly deposits of $0.00 to his account over the 6-month period 8 immediately preceding the filing of his Motion. See ECF No. 2 at 1. At the time of filing, 9 Plaintiff had an available balance of $0.00. Id. at 2. Thus, the Court GRANTS Plaintiff’s 10 Motion to Proceed IFP (ECF No. 2) and assesses his initial partial filing fee to be $0.00 11 pursuant to 28 U.S.C. § 1915(b)(1). The remaining balance of the $350 total fee owed in 12 this case must be collected by the agency having custody of the prisoner and forwarded to 13 the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2). 14 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 15 A. Standard of Review 16 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a 17 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 18 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 19 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 20 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 21 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 22 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 23 the targets of frivolous or malicious suits need not bear the expense of responding.’” 24 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 25 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 26 “The standard for determining whether a plaintiff has failed to state a claim upon 27 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 28 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 1 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 2 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 3 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 4 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 5 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 6 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 7 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 8 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 9 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 10 relief [is] ... a context-specific task that requires the reviewing court to draw on its 11 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 12 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 13 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 14 (9th Cir. 2009). 15 B. Plaintiff’s Allegations 16 Plaintiff alleges that on October 16, 2018, while he was incarcerated at R.J. 17 Donovan State Prison (“RJDSP”), he locked his cell door which prevented Correctional 18 Officer J. Duran from gaining entry. See Compl., ECF No. 1 at 3. Duran then “kicked and 19 banged [the] cell door for 2 full minutes” until he was able to enter with four other 20 correctional officers. Id. Duran placed a spit mask over Plaintiff’s head and he and the 21 other officers then physically assaulted Plaintiff for four minutes by kicking, punching 22 and spitting on him while screaming a racial epithet. Id. After the assault, Plaintiff was 23 “dragged to the Administrative Segregation Unit [Ad. Seg.]” where he spent eight days 24 with no mattress and no toilet paper; he also claims “they” were spitting in his food. Id. 25 While in Ad. Seg., Plaintiff claims Duran denied him medical care and stole his personal 26 property. Id. 27 / / / 28 / / / 1 C. Eighth Amendment Claims 2 Plaintiff alleges an Eighth Amendment conditions of confinement claim and an 3 Eighth Amendment denial of medical care claim. See Compl., ECF No. 1 at 3. 4 1. Conditions of Confinement 5 Plaintiff claims that while he was in Ad. Seg. he was not provided with a mattress 6 or toilet paper and that someone was spitting in his food. Id. “To state a claim under 42 7 U.S.C. § 1983, the plaintiff must allege two elements: (1) that a right secured by the 8 Constitution or laws of the United States was violated; and (2) that the alleged violation 9 was committed by a person acting under color of state law.” Campbell v. Washington 10 Dep’t of Soc. Servs., 671 F.3d 837, 842 n.5 (9th Cir. 2011), citing Ketchum v. Alameda 11 Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). “The inquiry into causation must be 12 individualized and focus on the duties and responsibilities of each individual defendant 13 whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. 14 Murphy, 844 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode, 423 U.S. 362, 370-71 15 (1976); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986); Estate of Brooks v. United 16 States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required element 17 of a § 1983 claim.”) A person deprives another “of a constitutional right, within the 18 meaning of section 1983, if he does an affirmative act, participates in another’s 19 affirmative acts, or omits to perform an act which he is legally required to do that causes 20 the deprivation of which [the plaintiff complains].” Johnson v. Duffy, 588 F.2d 740, 743 21 (9th Cir. 1978). 22 Plaintiff has not stated an Eighth Amendment conditions of confinement claim 23 against Defendant Duran because his Complaint fails to contain factual allegations 24 sufficient to show Duran was the individual who denied him access to a mattress and 25 toilet paper or spit in his food. See Compl., ECF No. 1 at 3. He fails to explain what 26 actions Duran took or failed to take, and how those acts or omissions resulted in a 27 constitutional violation. See Iqbal, 556 U.S. at 678 (“[T]he plaintiff [must] plead[] factual 28 content that allows the court to draw the reasonable inference that the defendant is liable 1 for the misconduct alleged.”). Thus, the Court finds Plaintiff’s Complaint requires sua 2 sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(1) and § 1915A(b)(1) to the 3 extent it seeks relief under § 1983 against Correctional Officer Duran for Plaintiff’s 4 Eighth Amendment conditions of confinement claim. 5 2. Medical Care 6 Plaintiff alleges Defendant Duran denied him medical care. See Compl., ECF No. 7 1 at 3. Only “deliberate indifference to serious medical needs of prisoners constitutes the 8 unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment.” 9 Estelle v. Gamble, 429 U.S. 97, 103, 104 (1976) (citation and internal quotation marks 10 omitted). “A determination of ‘deliberate indifference’ involves an examination of two 11 elements: (1) the seriousness of the prisoner’s medical need and (2) the nature of the 12 defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 13 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 14 1997) (en banc) (quoting Estelle, 429 U.S. at 104). 15 “Because society does not expect that prisoners will have unqualified access to 16 health care, deliberate indifference to medical needs amounts to an Eighth Amendment 17 violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992), 18 citing Estelle, 429 U.S. at 103-104. “A ‘serious’ medical need exists if the failure to treat 19 a prisoner’s condition could result in further significant injury or the ‘unnecessary and 20 wanton infliction of pain.’” McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 21 104); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Mendiola-Martinez v. Arpaio, 22 836 F.3d 1239, 1248 (9th Cir. 2016). “The existence of an injury that a reasonable doctor 23 or patient would find important and worthy of comment or treatment; the presence of a 24 medical condition that significantly affects an individual’s daily activities; or the 25 existence of chronic and substantial pain are examples of indications that a prisoner has a 26 ‘serious’ need for medical treatment.” McGuckin, 974 F.2d at 1059 (citing Wood v. 27 Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)). 28 / / / 1 To state an Eighth Amendment claim, Plaintiff’s Complaint must contain 2 “sufficient factual matter,” and not just “labels and conclusions,” Iqbal, 556 U.S. at 678, 3 to plausibly show Defendant Duran’s “purposeful act or failure to respond to [his] pain or 4 possible medical need,” and the “harm caused by [this] indifference.” Wilhelm, 680 F.3d 5 at 1122 (citing Jett, 439 F.3d at 1096). “Deliberate indifference is a high legal standard.” 6 Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (citing Toguchi v. Chung, 391 7 F.3d 1051, 1060 (9th Cir. 2004)). In his Complaint, Plaintiff does not explain what his 8 objectively serious medical needs were, nor does he include any further “factual content” 9 to show that Defendant Duran demonstrated “deliberate indifference” to his needs. 10 McGuckin, 974 F.2d at 1059-60; Jett, 439 F.3d at 1096; Iqbal, 556 U.S. at 678. Plaintiff’s 11 Complaint simply states that “Duran denied me medical attention.” See Compl., ECF No. 12 1 at 3. This is not sufficient to state a plausible claim for relief, and the Court therefore 13 finds that Plaintiff has failed to state an Eighth Amendment deliberate indifference to 14 serious medical needs claim against Duran pursuant to 28 U.S.C. § 1915(e)(2) and 15 § 1915A(b). See Iqbal, 556 U.S. at 678 (to state a plausible claim for relief, the plaintiff 16 must provide “more than an unadorned, the-defendant-unlawfully-harmed-me 17 accusation.”). 18 D. Property Claims 19 Plaintiff alleges that Defendant Duran stole his personal property. See Compl., 20 ECF No. 1 at 3. Ordinarily, due process of law requires notice and an opportunity for 21 some kind of hearing prior to the deprivation of a significant property interest. Sinaloa 22 Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398, 1405 (9th Cir. 1989). Neither 23 the negligent nor intentional deprivation of property states a due process claim under 24 section 1983 if the deprivation was random and unauthorized, however. Parratt v. Taylor, 25 451 U.S. 527, 535-44 (1981) (state employee negligently lost prisoner’s hobby kit), 26 overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986); 27 Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional destruction of inmate’s 28 property). The availability of an adequate state post-deprivation remedy, e.g. a state tort 1 action, precludes relief because it provides sufficient procedural due process. See 2 Zinermon v. Burch, 494 U.S. 113, 128 (1990) (where state cannot foresee, and therefore 3 provide meaningful hearing prior to the deprivation, a statutory provision for post- 4 deprivation hearing or a state common law tort remedy for erroneous deprivation satisfies 5 due process); King v. Massarweh, 782 F.2d 825, 826 (9th Cir. 1986) (same). The Ninth 6 Circuit has long recognized that California law provides such an adequate post- 7 deprivation remedy. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. 8 Gov’t Code §§ 810-895). 9 Deprivations of property resulting from negligence, or “mere lack of due care” do 10 not deny due process at all, and must be redressed through a state court damages action. 11 See Daniels, 474 U.S. at 328 (“[T]he Due Process Clause is simply not implicated by a 12 negligent act of an official causing unintended loss of or injury to life, liberty, or 13 property.”); id. at 330 (“‘To hold that this kind of loss is a deprivation of property within 14 the meaning of the Fourteenth Amendment seems not only to trivialize, but grossly to 15 distort the meaning and intent of the Constitution.’” (quoting Parratt, 451 U.S. at 545 16 (Stewart, J., concurring)). In fact, the Supreme Court has explicitly warned against 17 turning the Fourteenth Amendment and § 1983 into a “font of tort law to be 18 superimposed upon whatever systems may already be administered by the States.” See 19 Paul v. Davis, 424 U.S. 693, 701 (1976). 20 Thus, because Plaintiff claims Duran wrongfully deprived him of personal 21 property, any remedy he may have lies in state court and his federal claim must be 22 dismissed for failing to state a claim upon which § 1983 relief may be granted. See 28 23 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at 1126-27. 24 E. Excessive Force Claims 25 As to Plaintiff’s excessive force allegations against Defendant Duran, however, the 26 Court finds his Complaint contains plausible claims sufficient to survive the “low 27 threshold” set for sua sponte screening as required by 28 U.S.C. §§ 1915(e)(2) and 28 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; Hudson v. McMillian, 1 503 U.S. 1, 5, (1992) (unnecessary and wanton infliction of pain violates the Cruel and 2 Unusual Punishments Clause of the Eighth Amendment); Wilkins v. Gaddy, 559 U.S. 34, 3 37 (2010) (per curiam) (for claims arising out of the use of excessive physical force, the 4 issue is “whether force was applied in a good-faith effort to maintain or restore discipline, 5 or maliciously and sadistically to cause harm.”) (citing Hudson, 503 U.S. at 7). 6 F. Leave to Amend 7 Because the Court has determined that only Plaintiff’s excessive force claims 8 survive the sua sponte screening process, it will give Plaintiff the opportunity to either: 9 (1) notify the Court of the intent to proceed with his excessive force claims against Duran 10 only; or (2) file an Amended Complaint that corrects all the deficiencies of pleading 11 identified by the Court in this Order. Plaintiff must choose one of these options within 12 forty-five (45) days from the date this Order is filed. If Plaintiff notifies the Court that he 13 wishes to proceed with only his Eighth Amendment excessive force claims, the Court 14 will issue an Order directing the U.S. Marshal to effect service of his Complaint on 15 Defendant Duran and dismiss all other claims originally included in that pleading. 16 III. Conclusion and Orders 17 For the reasons explained, the Court: 18 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 19 [ECF No. 2]. 20 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 21 Plaintiff’s trust account the full $350 filing fee owed in this case, and to submit to the 22 Clerk of the Court monthly payments in an amount equal to twenty percent (20%) of the 23 preceding month’s income, each time the amount in his account exceeds $10 pursuant to 24 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY 25 THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 26 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph 27 Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 28 / / / 1 4. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 2 || which to either: (1) Notify the Court of his intention to proceed with his Eighth 3 || Amendment excessive force claims against Duran only; or (2) File an Amended 4 ||Complaint which cures all the deficiencies of pleading noted. Plaintiff's Amended 5 ||Complaint must be clearly entitled “Amended Complaint,” include Civil Case No. 3:20- 6 || cv-0545-JAH-BLM in its caption, and must be complete by itself without reference to his 7 || original Complaint. Defendants not named and any claims not re-alleged in the Amended 8 ||Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 9 Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (‘[A]n amended 10 || pleading supersedes the original.”); Lacey, 693 F.3d at 928 (noting that claims dismissed 11 || with leave to amend which are not re-alleged in an amended pleading may be “considered 12 || waived if not repled.”). 13 5. The Court DIRECTS the Clerk of the Court to provide Plaintiff with a 14 || blank copy of its form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for his 15 || use in amending, should he choose to do so. 16 IT IS SO ORDERED. 17 18 || Dated: June 4, 2020 VU 19 lpn. John A. Houston 0 Jnited States District Judge 21 22 23 24 25 26 27 28 10