Arellano v. Lamborn

Opinion

RAUL ARELLANO, Case No.: 3:19-cv-02360-JAH-LL CDCR #AH-1995, ORDER: Plaintiff, vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS DAVID G. LAMBORN; HUFFMAN; [ECF No. 2] LAURA W. HALGREN; BENKE;

AND Defendants. 2) DISMISSING COMPLAINT FOR LACK OF SUBJECT MATTER Raul Arellano (“Plaintiff”), currently incarcerated at the Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has not paid the civil filing fee required by 28 U.S.C. § 1914(a); instead he has filed a Motion to Proceed In Forma Pauperis pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). I. Motion 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. 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 who is granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. Samuels, __ S. Ct. __, 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). In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Prison Certificate and Inmate Statement Report recording his balances and deposits over the 6- month period preceding the filing of his Complaint. See ECF No. 3; 28 U.S.C. 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 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 § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These reports show Plaintiff had a balance of only $0.05 at the time of filing. See ECF No. 3 at 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.”). Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), but declines to “exact” any initial filing fee because his trust account statement shows he “has no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”) to 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). II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) A. Standard of Review Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the PLRA also obligates the Court to review 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,” “as soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these statutes, 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(b); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 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. The “mere possibility of misconduct” falls short of meeting this 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) (“[W]hen 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 “ha[s] 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 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). B. Plaintiff’s Allegations Plaintiff alleges that he submitted his “habeas corpus on 6-19-2014” and the “court denied some grounds on the merits but didn’t deny 60 grounds of [ineffective assistance of counsel (“IAC”)] on merits. (Compl. at 4.) The Court informed Plaintiff that they “couldn’t hear the claims because [he] failed to submit the trial transcripts.” (Id.) Plaintiff alleges it took him “several years” to obtain his transcripts. (Id.) Plaintiff submitted the transcripts so the “superior court [could] hear merits of IAC.” (Id.) However, Plaintiff claims the trial court erred when they claimed that they had already rendered a decision regarding Plaintiff’s IAC claims on the merits. (See id.) As a result, Plaintiff alleges that neither the state appellate courts or the federal courts would consider these claims. (See id.) Plaintiff “would like [this] Court to order [the state court] to hear my IAC grounds on merits because [he] cure[d] the defects.” (Id.) In addition, Plaintiff argues that his “actual innocence” claim should also be heard on the merits. (Id. at 5.) Plaintiff claims that “Judges from superior and appeal state courts” denied him access to his trial transcripts that he had been requesting “from 2015 – August 2016.” (Id. at 6.) Plaintiff alleges his trial transcripts were “destroyed on September 21, 2014 by a prison state employee.” (Id.) In 2017, Plaintiff “end[ed] up getting the transcripts through other sources.” (Id.) Plaintiff seeks relief in the form of a “ruling determining if state courts did violate [his] rights when” they purportedly failed to provide him with his trial transcripts. (Id.) On August 23, 2018, Plaintiff mailed his “notice of appeal” and his “opening brief” to the Ninth Circuit Court of Appeals through the prison mailroom. (Id. at 7.) He received a United States Postal Service (“USPS”) “tracking number” indicating that the documents had been mailed. (Id.) However, Plaintiff claims that the Ninth Circuit did not receive these documents and the USPS has “no history of what happen[ed] to those 3 manila envelopes.” (Id.) Thus, Plaintiff’s matter was “dismissed” by the Ninth Circuit on the grounds they never received either his notice of appeal or his opening brief. (Id.) As a result, Plaintiff claims that his “chance to have gotten release[ed] from prison for facts of innocence is gone.” (Id.) Plaintiff seeks “monetary compensation” against the USPS. (Id.) C. 42 U.S.C. § 1983 “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) (internal quotation marks and citations omitted). “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). D. Rooker Feldman Doctrine Plaintiff is very clear in his request for injunctive relief that he seeks an order from this Court directing the state courts to hear his claims of IAC and actual innocence. (See Compl. at 10.) However, this is not a viable form of relief in this action. The Rooker-Feldman doctrine provides that “‘a losing party in state court is barred from seeking what in substance would be appellate review of the state judgment in a United States District Court, based on the losing party’s claim that the state judgment itself violates the loser’s federal rights.’” Doe v. Mann, 415 F.3d 1038, 1041 (9th Cir. 2005) (quoting Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994)); see District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 & 486 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). Review of state court decisions may only be conducted in the United States Supreme Court. Feldman, 460 U.S. at 476 & 486; Rooker, 263 U.S. at 416; see 28 U.S.C. § 1257. The Rooker-Feldman jurisdictional bar applies even if the complaint raises federal constitutional issues. Feldman, 460 U.S. at 483 n.16 & 486; Henrichs v. Valley View Development, 474 F.3d 609, 613 (9th Cir. 2007). More specifically, the bar applies if the challenge to the state court decision is brought as a § 1983 civil rights action. See Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995); Worldwide Church of God v. McNair, 805 F.2d 888, 893 n.4 (9th Cir. 1986). / / / A complaint challenges a state court decision if the constitutional claims presented to the district court are “inextricably intertwined” with the state court’s decision in a judicial proceeding. Feldman, 460 U.S. at 483 n.16. “[T]he federal claim is inextricably intertwined with the state court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it.” Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 25 (1987)(Marshall, J., concurring); see also Worldwide Church of God, 805 F.2d at 891-92. Because Plaintiff appears to seek this Court’s assistance in overturning orders made by state court judges, his claims are inextricably intertwined with the state court proceedings, and are barred by the Rooker-Feldman doctrine. E. Federal Tort Claim Act Plaintiff also seeks monetary damages against the USPS under the Federal Tort Claim Act (“FTCA”) based on his claims that the USPS lost his mail. (See Compl. at 7- 8.) The FTCA provides a remedy “for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission” of a federal employee. 28 U.S.C. § 2672. However, the FTCA provides that the exclusive remedy for torts committed by federal employees is a suit against the United States. 28 U.S.C. § 2679(b)(1). The sole permissible Defendant in a claim under the FTCA is the United States and thus, the Court DISMISSES any FTCA claims against the USPS. See 28 U.S.C. §§ 1346(b), 2679(a); Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir. 1984). Moreover, to the extent that Plaintiff seeks to pursue claims of the purported negligence loss of his mail against the United States under the FTCA, these claims must be dismissed. The FTCA does not waive sovereign immunity as to claims arising out of “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” 28 U.S.C. § 2680(b). The Court lacks subject matter jurisdiction to hear these claims and thus, these claims are DISMISSED without leave to amend. / / / F. Leave to Amend The Court denies Plaintiff leave to amend as futile. See Cahill v. Liberty Mut. Ins. Co.., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an abuse of discretion where further amendment would be futile); see also Robinson v. California Bd. of Prison Terms, 997 F. Supp. 1303, 1308 (C.D. Cal.1998) (“Since plaintiff has not, and cannot, state a claim containing an arguable basis in law, this action should be dismissed without leave to amend; any amendment would be futile.”) (citing Newland v. Dalton, 81 F.3d 904, 907 (9th Cir. 1996)). III. Conclusion and Orders For the reasons explained, the Court: 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly payments from his account in an amount equal to twenty percent (20%) of the preceding month’s income and forwarding those payments to the Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883, Sacramento, California, 94283-0001. 4. DISMISSES this civil action sua sponte pursuant for lack of subject matter jurisdiction without leave to amend. / / / / / / / / / / / / 5. CERTIFIES that an IFP appeal in this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and 6. DIRECTS the Clerk of Court to close the file. Dated: January 22, 2020 VU YON. JOHN A. HOUSTON g Ynited States District Judge 1] 9