Holestine v. Covello

• Court: District Court, S.D. California
• Decided: September 24, 2019
• Docket: 3:19-cv-01593
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ERNEST KELLY HOLESTINE, Case No.: 3:19-cv-01593-GPC-AGS CDCR #J-01366, 12 ORDER: Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS

15 [Doc. No. 2] P. COVELLO, Warden; F. ARMENTA, 16 Chief Deputy Warden; J. SANTANA, Assoc. AND 17 Warden; D. McGUIRE, Asst. Classification & Parole Rep.; C. O’DELL, Correctional 2) DIRECTING U.S. MARSHAL 18 Counselor II; B. SELF, Correctional TO EFFECT SERVICE OF 19 Counselor II; D. COON, Correctional COMPLAINT AND SUMMONS Counselor I; R. CENTENO, Correctional PURSUANT TO 20 Counselor I; J. MEDINA, Assoc. Warden; 28 U.S.C. § 1915(d) AND 21 A. SANDS, Correctional Counselor III; Fed. R. Civ. P. 4(c)(3) M. VOONG, Chief Inmate Appeals; 22 K.J. ALLEN, Appeals Examiner; 23 J. DOMINGUEZ, Appeals Examiner, 24 Defendants. 25 26 Plaintiff Ernest Kelly Holestine, currently incarcerated at Salinas Valley State Prison 27 (“SVSP”) in Soledad, California, and proceeding pro se, has filed a civil rights complaint 28 pursuant to 42 U.S.C. § 1983. (See Compl., Doc. No. 1.) Holestine claims various prison 1 and California Department of Corrections and Rehabilitation (“CDCR”) officials at 2 Richard J. Donovan Correctional Facility (“RJD”) and the California Medical Facility 3 (“CMF”), violated the Americans with Disabilities Act, 42 U.S.C. § 12132, the 4 Rehabilitation Act, 29 U.S.C. § 794(a), and his Eighth and Fourteenth Amendment rights, 5 by denying his requests for reasonable accommodation with respect to his prison 6 employment while he was incarcerated at RJD, and involuntarily transferring him to CMF, 7 a psychiatric hospital, where he alleges to have been forcibly medicated, subject to 8 “excessive isolation,” and to have mentally decompensated. (See Compl., Doc. No. 1, at 3- 9 4, 12, 16-18 ¶¶ 18-21, 68-76, 87-102.) Holestine seeks declaratory and injunctive relief, as 10 well as nominal, compensatory, and punitive damages. (Id. at 19-20). 11 Holestine did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when 12 he filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) 13 pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2). 14 I. Motion to Proceed IFP 15 All parties instituting any civil action, suit or proceeding in a district court of the 16 United States, except an application for writ of habeas corpus, must pay a filing fee of 17 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 18 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 19 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, 20 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in 21 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); 22 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their 23 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 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 28 1 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 2 F.3d 844, 847 (9th Cir. 2002). 3 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 4 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6- 5 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 6 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 7 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 8 in the account for the past six months, or (b) the average monthly balance in the account 9 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 10 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner 11 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 12 any month in which his account exceeds $10, and forwards those payments to the Court 13 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. 14 In support of his IFP Motion, Holestine has submitted a SVSP-certified copy of his 15 CDCR Inmate Statement Report for the 6-month period preceding the filing of his 16 Complaint (Doc. No. 2 at 6-7). See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 17 398 F.3d at 1119. This Report shows Holestine carried an approximate average monthly 18 balance of $5.85, maintained $14.14 in average monthly deposits in his account during the 19 6-months preceding suit, and had a current available balance of only $.83 at the time of 20 filing. (See Doc. No. 2 at 6.) 21 Based on this accounting, the Court assesses Holestine’s initial partial filing fee as 22 $2.82 pursuant to 28 U.S.C. § 1915(b)(1), GRANTS his Motion to Proceed IFP (Doc. No. 23 2), but declines to exact this initial fee because his prison certificates indicate he currently 24 has “no means to pay it.” Bruce, 136 S. Ct. at 629. Instead, the Court will direct the 25 Secretary of the CDCR or his designee, to collect the entire $350 balance of the filing fees 26 required by 28 U.S.C. § 1914 and forward monthly installment payments to the Clerk of 27 the Court pursuant 28 U.S.C. § 1915(b)(2). 28 /// 1 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 2 Because Holestine is a prisoner and is proceeding IFP, his Complaint also requires 3 a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 4 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, 5 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who 6 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 7 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 8 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 9 the targets of frivolous or malicious suits need not bear the expense of responding.’” 10 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 11 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 12 “The standard for determining whether a plaintiff has failed to state a claim upon 13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 15 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 16 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 17 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 18 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 19 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 20 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 21 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 22 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 23 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 24 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 25 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 26 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 27 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 28 /// 1 As currently pleaded, the Court finds Holestine’s Complaint contains “sufficient 2 factual matter, accepted as true,” to state Fourteenth Amendment claims for relief that are 3 “plausible on its face,” Iqbal, 556 U.S. at 678, and therefore, sufficient to survive the “low 4 threshold” set for sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). 5 See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678. Changes in conditions so severe as 6 to affect the sentence imposed in an unexpected manner implicate the Due Process Clause 7 itself, whether or not they are authorized by state law. See Sandin v. Conner, 515 U.S. 472, 8 484 (1995) (citing Vitek v. Jones, 445 U.S. 480, 493 (1980) (transfer to mental hospital); 9 Washington v. Harper, 494 U.S. 210, 221-22 (1990) (involuntary administration of 10 psychotropic drugs)). In Vitek, the Supreme Court held that “the stigmatizing consequences 11 of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the 12 subjection of the prisoner to mandatory behavior modification as a treatment for mental 13 illness, constitute the kind of deprivations of liberty that requires procedural protections.” 14 Id. at 494; see also Manzanillo v. Moulton, 2014 WL 4793780, at *11 (N.D. Cal. Sept. 25, 15 2014) (noting that Vitek “held that the conjunction of stigmatization and mandatory 16 behavior modification without procedural protections violated due process.”). “The liberty 17 interest at stake in Vitek mandated due process protections before both the classification of 18 the inmate as ‘mentally ill’ and his resultant transfer to a mental hospital for involuntary 19 psychiatric treatment.” Neal v. Shimoda, 131 F.3d 818, 828 (9th Cir. 1997); see also 20 Wilkinson v. Austin, 545 U.S. 209, 229 (2005); Hendon v. Ramsey, 528 F. Supp. 2d 1058, 21 1065 (S.D. Cal. 2007).2 22

23 2 The procedural protections the Supreme Court found adequate to afford due process in 24 Vitek are: (1) “written notice to the prisoner that a transfer to a mental hospital is being 25 considered;” 445 U.S. at 494, (2) “[a] hearing, sufficiently after the notice to permit the prisoner to prepare, at which disclosure ... is made of the evidence being relied upon[,] ... 26 and at which opportunity to be heard in person and to present documentary evidence is 27 given;” id., (3) “[a]n opportunity at the hearing to present testimony of witnesses ... and to confront and cross examine witnesses called by the state, except upon finding, not 28 1 Therefore, the Court will direct the U.S. Marshal to effect service of summons 2 Holestine’s Complaint on his behalf. See 28 U.S.C. § 1915(d) (“The officers of the court 3 shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4 4(c)(3) (“[T]he court may order that service be made by a United States marshal or deputy 5 marshal ... if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. 6 § 1915.”). 7 III. Conclusion and Order 8 For the reasons explained, the Court: 9 1. GRANTS Holestine’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 10 (Doc. No. 2). 11 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 12 Holestine’s prison trust account the $350 filing fee owed in this case by collecting monthly 13 payments from the account in an amount equal to twenty percent (20%) of the preceding 14 month’s income and forward payments to the Clerk of the Court each time the amount in 15 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 16 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 17 THIS ACTION. 18 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, 19 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 20 4. DIRECTS the Clerk to issue a summons as to Holestine’s Complaint (Doc. 21 No. 1) and forward it to Plaintiff’s counsel along with a blank U.S. Marshal Form 285 for 22 23 24 cross-examination;” id. at 494-95, (4) “[a]n independent decisionmaker;” id. at 495, (5) 25 “[a] written statement by the factfinder as to the evidence relied on and the reasons for [the] transfer[ ];” id., (6) “qualified and independent assistance” to the inmate, provided by the 26 State, id. at 499-500 (J. Powell, concurring), and (7) “[e]ffective and timely notice of all 27 the foregoing rights.” Id. at 495; see also Frederickson v. Wong, 2016 WL 3253831, at *2 (N.D. Cal. June 13, 2016); Soares v. Paramo, 2017 WL 1166277, at *12-13 (S.D. Cal. 28 1 each named Defendant. In addition, the Clerk will provide Holestine with a certified copy 2 of this Order, certified copies of his Complaint, and the summons so that he may serve each 3 Defendant. Upon receipt of this “IFP Package,” Holestine must complete the USM Form 4 285s as completely and accurately as possible, include an address where each named 5 Defendant may be found and/or subject to service pursuant to S.D. Cal. CivLR 4.1c., and 6 return them to the United States Marshal according to the instructions the Clerk provides 7 in the letter accompanying his IFP Package. 8 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 9 upon the Defendants as directed by Holestine on the USM Form 285s provided to him. All 10 costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. 11 R. Civ. P. 4(c)(3). 12 6. ORDERS Defendants, once they have been served, to reply to Holestine’s 13 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 14 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be 15 permitted to “waive the right to reply to any action brought by a prisoner confined in any 16 jail, prison, or other correctional facility under section 1983,” once the Court has conducted 17 its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has 18 made a preliminary determination based on the face on the pleading alone that Plaintiff has 19 a “reasonable opportunity to prevail on the merits,” the Defendants are required to 20 respond). 21 7. ORDERS Holestine, after service has been effected by the U.S. Marshal, to 22 serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’ 23 counsel, a copy of every further pleading, motion, or other document submitted for the 24 Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Holestine must include with every 25 original document he seeks to file with the Clerk of the Court, a certificate stating the 26 manner in which a true and correct copy of that document has been was served on 27 Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any 28 document received by the Court which has not been properly filed with the Clerk or which 1 || fails to include a Certificate of Service upon the Defendants, or their counsel, may be 2 || disregarded. 3 IT IS SO ORDERED. 4 ||Dated: September 24, 2019 5 Hon. athe Ck 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8