Kimes v. California Department of Corrections & Rehabilitation

• Court: District Court, S.D. California
• Decided: December 13, 2021
• Docket: 3:21-cv-01873
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENNETH K. KIMES, Case No.: 21cv1873-BTM (BLM) CDCR #V-80313, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS,

15 CALIFORNIA DEPARTMENT OF AND 16 CORRECTIONS AND

REHABILITATION, et al., 17 (2) DISMISSING COMPLAINT Defendants. WITH LEAVE TO AMEND 18 PURSUANT TO 28 U.S.C. 19 §§ 1915(e)(2)(B) & 1915A(b) 20 21 Plaintiff Kenneth K. Kimes, a state prisoner housed at the Richard J. Donovan 22 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this civil 23 rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff claims that RJD staff 24 took his personal property in retaliation for filing an inmate grievance and that their actions 25 caused him to have a heart attack. (Id. at 3-5.) Plaintiff did not prepay the civil filing fee 26 required by 28 U.S.C. § 1914(a) at the time of filing and has instead filed a Motion to 27 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), along with a 28 separately filed copy of his inmate trust account statement. (ECF Nos. 2-3.) 1 I. Motion to Proceed In Forma Pauperis 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to prepay the 5 entire fee only if leave to proceed in forma pauperis (“IFP”) is granted pursuant to 28 6 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 7 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a “certified copy 8 of the trust fund account statement (or institutional equivalent) for . . . the 6-month period 9 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 10 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 11 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 12 for the past six months, or (b) the average monthly balance in the account for the past six 13 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1) 14 &(4). The institution collects subsequent payments, assessed at 20% of the preceding 15 month’s income, in any month in which the account exceeds $10, and forwards those 16 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 17 Plaintiff remains obligated to pay the entire fee in monthly installments regardless of 18 whether their action is ultimately dismissed. Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 19 U.S.C. § 1915(b)(1) & (2). 20 Plaintiff’s prison certificate shows he had an average monthly balance of $0.07 and 21 average monthly deposits of $0.00 for the 6-months preceding the filing of this action, and 22 an available balance of $0.00. (ECF No. 3 at 1.) 23 The Court GRANTS Plaintiff’s Motion to Proceed IFP and declines to impose an 24 initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1) because his prison certificate 25

26 27 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial 28 1 indicates he may have “no means to pay it.” See 28 U.S.C. § 1915(b)(4) (providing that 2 “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil 3 action or criminal judgment for the reason that the prisoner has no assets and no means by 4 which to pay the initial partial filing fee.”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th 5 Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 6 dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of 7 funds available to him when payment is ordered.”) Instead, the Court directs the Secretary 8 of the California Department of Corrections and Rehailitation (“CDCR”), or her designee, 9 to collect the entire $350 balance of the filing fee required by 28 U.S.C. § 1914 and to 10 forward it to the Clerk of the Court pursuant to the installment payment provisions set forth 11 in 28 U.S.C. § 1915(b)(1). 12 II. Screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 13 A. Standard of Review 14 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 15 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these statutes, 16 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 17 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 18 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 19 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 20 (discussing 28 U.S.C. § 1915A(b)). “The purpose of § 1915A is to ensure that the targets 21 of frivolous or malicious suits need not bear the expense of responding.” Nordstrom v. 22 Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (internal quote marks omitted). 23 “The standard for determining whether a plaintiff has failed to state a claim upon 24 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 25 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 26 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 27 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 28 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule 1 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 2 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 3 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Detailed factual 4 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 5 supported by mere conclusory statements, do not suffice.” Id. “Determining whether a 6 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 7 reviewing court to draw on its judicial experience and common sense.” Id. The “mere 8 possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me 9 accusation[s]” fall short of meeting this plausibility standard. Id. 10 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 11 acting under color of state law, violate federal constitutional or statutory rights.” 12 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a 13 source of substantive rights, but merely provides a method for vindicating federal rights 14 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation 15 marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation 16 of a right secured by the Constitution and laws of the United States, and (2) that the 17 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 18 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 19 B. Plaintiff’s Allegations 20 Plaintiff’s first cause of action claims a due process violation under the Fourteenth 21 Amendment. (ECF No. 1 at 3.) He alleges that: 22 Staff provided relief for radio lost and other personal property. Let me purchase new replacement. Then 3 month[s] later staff retaliated and took my 23 property once more. As a result the property I purchased was taken from me 24 and I was not allowed to send it home because it was too long after purchase. I was not permitted to get refund (see exhibits). 25

26 (Id.) 27 There are no exhibits attached to the Complaint, but Plaintiff has separately filed 28 147 pages of exhibits. (ECF No. 4.) They consist of his own declaration stating that a 1 “Sony CD Boombox” which he purchased with authorization on November 8, 2018, was 2 confiscated and returned to its sender on March 13, 2019, although he believes it was stolen 3 by RJD staff, detailing the steps he took to challenge its loss though the inmate grievance 4 procedures, and explaining that he needed it “for therapy and relaxation” after he was 5 admitted to the hospital on March 24, 2019 as a result of “a great deal of stress and mental 6 exertion while attempting to resolve this issue.” (Id. at 1-10.) The other exhibits consist 7 of documents detailing the acquisition, confiscation and disposition of that item, including 8 copies of Plaintiff’s inmate grievances (id. at 22-141), and a declaration from an RJD 9 inmate indicating he recalls seeing a “Sony Boombox” confiscated from Plaintiff in the 10 RJD “R&R Department . . . being used by the R.J.D. Staff.” (Id. at 143.) 11 Plaintiff’s second cause of action claims violations of the First, Eighth and 12 Fourteenth Amendments for “free speech retaliation.” (ECF No. 1 at 4.) He alleges: 13 “Because I filed appeal regarding lost property and won a TLR, staff entered my cell and 14 stole my personal property to get revenge for filing an appeal over lost property this staff 15 was responsible for (see exhibit).” (Id.) 16 Plaintiff’s third and final cause of action alleges a violation of the Eighth 17 Amendment’s prohibition of cruel and unusual punishment. (Id. at 5.) He alleges: “As a 18 result of the action by staff over prolonged period cause me to have a heart attack and other 19 injuries (see exhibits).” (Id.) 20 Plaintiff names the CDCR and “Does 1-10” as Defendants in the caption of the 21 Complaint, and in the body of the Complaint names individual Defendants RJD Warden 22 M. Pollard, RJD Litigation Coordinator Garcia, and RJD Sergeants Diaz, L. Rodriguez, 23 Ruttedge and K. Cowart. (Id. at 1-2.) Other than alleging the individual Defendants acted 24 under color of state law, there are no factual allegations specific to any Defendant. (Id.) 25 Plaintiff seeks an “injunction to prevent retaliation” and monetary damages. (Id. at 7.) 26 C. Analysis 27 Plaintiff’s first cause of action alleges a violation of due process for the loss of his 28 personal property. (ECF No. 1 at 3.) Prisoners have a protected interest in their personal 1 property. Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). However, due process is not 2 violated by a random, unauthorized deprivation of property if the state provides an 3 adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984). The 4 Ninth Circuit has held that California’s tort claim process provides an adequate post- 5 deprivation remedy for property taken without due process. Barnett v. Centoni, 31 F.3d 6 813, 816-17 (9th Cir. 1994) (per curiam), citing Cal. Gov’t Code §§ 810-895. Plaintiff has 7 not stated a due process claim based on Defendants’ purportedly unauthorized deprivation 8 of his personal property since he has an adequate post-deprivation remedy for his losses. 9 Hudson, 468 U.S. at 533; Barnett, 31 F.3d at 816-17. 10 Accordingly, the Court dismisses Plaintiff’s property loss claims for failure to state 11 a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2) & 1915A(b); 12 Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. 13 Plaintiff’s first and second causes of action allege his property was taken in 14 retaliation for having filed and been granted relief on inmate grievances regarding the loss 15 of his property. (ECF No. 1 at 3-4.) He alleges that three months after an inmate appeal 16 was granted which allowed him to purchase a replacement radio for one lost during a 17 transfer between prisons, “staff retaliated and took my property once more.” (Id. at 3.) He 18 alleges “staff entered my cell and stole my personal property to get revenge for filing an 19 appeal of lost property this staff was responsible for.” (Id. at 4.) Plaintiff does not identify 20 any individual Defendant as having participated in the alleged deprivation, nor does he 21 allege who among any of the individually named Defendants constitute the “staff” 22 involved. 23 “Within the prison context, a viable claim of First Amendment retaliation entails 24 five basic elements: (1) An assertion that a state actor took some adverse action against an 25 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 26 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 27 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (2005). 28 The adverse action need not be an independent constitutional violation. Gomez v. Vernon, 1 255 F.3d 1118, 1127 (9th Cir. 2001) (“[A] retaliation claim may assert an injury no more 2 tangible than a chilling effect on First Amendment rights.”) 3 “Prisoners have a First Amendment right to file grievances against prison officials 4 and to be free from retaliation for doing so.” Watison, 668 F.3d at 1114. Thus, with respect 5 to the allegations Plaintiff was retaliated against for filing and winning an inmate 6 grievance, he has identified a protected activity. However, Plaintiff must also allege a 7 retaliatory motive, that is, a causal connection between the adverse action and his protected 8 conduct. Id. The Complaint merely sets forth conclusory allegations that RJD “staff” acted 9 with a retaliatory motive when they took his radio, which is insufficient to state a retaliation 10 claim. See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (concluding that, in the 11 absence of factual allegations to the contrary, it would be “sheer speculation” to assume 12 that prison officials retaliated on the basis of an inmate’s First Amendment activity). 13 Although Plaintiff alleges the staff’s actions were taken three months after he was allowed 14 to purchase replacement property after winning his inmate appeal, and although the timing 15 of a defendant’s actions may “be considered as circumstantial evidence of retaliatory 16 intent,” timing alone is generally not enough to support an inference of retaliatory intent. 17 Id. If Plaintiff wishes to pursue a retaliation claim he must allege facts which support a 18 plausible inference one or more Defendants took his property in retaliation for his protected 19 activity. In other words, he should indicate why he believes his property was taken in 20 retaliation for pursuing his inmate grievances. 21 Even if Plaintiff can cure that pleading defect, there are no factual allegations with 22 respect to any individual Defendant within the Complaint. Rather, one or more of the 23 named Defendants appear to be collectively referred to as “staff.” A defendant is liable 24 under § 1983 when he or she personally participates in the constitutional deprivation. 25 Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979). “[A] plaintiff must plead that each 26 Government-official defendant, through the official’s own individual actions, has violated 27 the Constitution.” Iqbal, 556 U.S. at 676. There are no factual allegations in the Complaint 28 regarding which Defendant or Defendants Plaintiff contends is or are responsible for the 1 alleged constitutional violation. To the extent Plaintiff contends that Warden Pollard or 2 any other named Defendant is liable as a supervisor of the other Defendants, supervisory 3 officials may only be held liable under § 1983 if Plaintiff alleges their “personal 4 involvement in the constitutional deprivation, or . . . a sufficient causal connection between 5 the supervisor’s wrongful conduct and the constitutional violation.” Keates v. Koile, 883 6 F.3d 1228, 1242-43 (9th Cir. 2018). If Plaintiff wishes to pursue a retaliation claim he 7 must identify which Defendant or Defendants were involved in the alleged retaliatory 8 conduct. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“The inquiry into 9 causation must be individualized and focus on the duties and responsibilities of each 10 individual defendant whose acts or omissions are alleged to have caused a constitutional 11 deprivation.”), citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). 12 Accordingly, the Court dismisses Plaintiff’s retaliation claims for failure to state a 13 claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2) & 1915A(b); 14 Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. 15 Plaintiff’s final cause of action alleges he was subjected to cruel and unusual 16 punishment in violation of the Eighth Amendment. (ECF No. 1 at 5.) This claim is based 17 on the allegation that: “As a result of the actions by staff over prolonged period cause me 18 to have a heart attack and other injuries (see exhibits).” (Id.) Liberally construing the 19 Complaint as alleging the “actions by staff” as the retaliatory confiscation of his radio, and 20 that the stress of dealing with the inmate grievance process in that regard resulted in his 21 hospitalization, after which he was not able to have the radio to use “for therapy and 22 relaxation” (ECF No. 4 at 6), which then led to his heart attack and “other injuries,” the 23 Complaint does not identify which of the named Defendants constitute the “staff” he seeks 24 to hold liable, and does not identify the nature of the “other injuries” he allegedly suffered. 25 “[A] prison official violates the Eighth Amendment when two requirements are met. 26 First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v. 27 Brennan, 511 U.S. 825, 834 (1994), quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). 28 Second, Plaintiff must allege the prison official he seeks to hold liable had a “sufficiently 1 culpable state of mind,” that is, “one of ‘deliberate indifference’ to inmate health or safety.” 2 Id., quoting Wilson, 501 U.S. at 302-03. A prison official can be held liable only if he 3 “knows of and disregards an excessive risk to inmate health or safety; the official must 4 both be aware of facts from which the inference could be drawn that a substantial risk of 5 serious harm exists, and he must also draw the inference.” Id. at 837. 6 There are no factual allegations in the Complaint from which a plausible inference 7 can be drawn that any Defendant acted in knowing disregard to an excessive risk to 8 Plaintiff’s health or safety which caused Plaintiff to have a heart attack or suffer “other 9 injuries.” See id. (holding that a prison official can be held liable only if he or she is “aware 10 of facts from which the inference could be drawn that a substantial risk of serious harm 11 exists, and . . . also draw the inference.”); Iqbal, 556 U.S. at 678 (the “mere possibility of 12 misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short 13 of stating a § 1983 claim). While the court has an “obligation . . . where the petitioner is 14 pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the 15 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), 16 citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc), it may not, in 17 so doing, “supply essential elements of the claim that were not initially pled.” Ivey v. Board 18 of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 19 The Complaint as currently drafted fails to state an Eighth Amendment claim 20 because Plaintiff has not identified the “actions by staff” which he alleges caused him “to 21 have a heart attack and other injuries.” Even assuming those actions consist of the 22 retaliatory confiscation of the radio he needs for therapy and relaxation, Plaintiff has failed 23 to plausibly allege that one or more named Defendants were aware he faced a substantial 24 risk of serious harm when they took the actions he contends resulted in his injuries, and 25 were aware that taking those actions subjected him to a substantial risk of serious harm. 26 See Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (holding that a prison official 27 acts with deliberate indifference where they know of and deliberately disregard a risk to 28 the prisoner’s health). If Plaintiff wishes to proceed with this claim, he must identify which 1 Defendant or Defendants he seeks to hold liable and set forth facts which plausibly allege 2 they were aware that he faced a substantial risk of serious harm to his health by depriving 3 him of his radio. In other words, Plaintiff should allege facts demonstrating Defendants 4 were aware of facts from which an inference could be drawn that depriving him of his radio 5 subjected him to such a risk and that they actually drew that inference when they took and 6 kept his radio. Farmer, 511 U.S. at 837 (a prison official can be held liable only if he 7 “knows of and disregards an excessive risk to inmate health or safety; the official must 8 both be aware of facts from which the inference could be drawn that a substantial risk of 9 serious harm exists, and he must also draw the inference.”) 10 D. Leave to Amend 11 In light of Plaintiff’s pro se status, the Court grants him leave to amend his pleading 12 to attempt to sufficiently allege a § 1983 claim if he can and if he wishes to attempt to do 13 so. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should 14 not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)] 15 unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by 16 amendment.’”), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 17 III. Conclusion and Orders 18 Good cause appearing, the Court: 19 1. GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2). 20 2. ORDERS the Secretary of the CDCR, or her designee, to collect from 21 Plaintiff’s prison trust account the $350 filing fee owed by collecting monthly payments 22 from Plaintiff’s account in an amount equal to twenty percent (20%) of the preceding 23 month’s income and forwarding those payments to the Clerk of the Court each time the 24 amount in the account exceeds $10 pursuant to 28 U.S.C. Section 1915(b)(2). All 25 payments should be clearly identified by the name and number assigned to this action. 26 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 27 Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 28 942883, Sacramento, California 94283-0001. 1 4. DISMISSES all claims against all Defendants in the Complaint without 2 || prejudice and with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). 3 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 4 || which to file a First Amended Complaint which cures the deficiencies of pleading noted in 5 || this Order with respect to any or all other Defendants. Plaintiffs First Amended Complaint 6 be complete by itself without reference to his original Complaint. Defendants not 7 ||named and any claims not re-alleged in the First Amended Complaint will be considered 8 || waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. y. Richard Feiner & Co., Inc., 9 || 896 F.2d 1542, 1546 (9th Cir. 1989) (‘[A]n amended pleading supersedes the original.’’); 10 || Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (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.”) If Plaintiff fails to amend, the Court will dismiss this action for 13 || failure to state a claim and failure to prosecute. See Lira v. Herrera, 427 F.3d 1164, 1169 14 Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his 15 |}complaint, a district court may convert the dismissal of the complaint into dismissal of the 16 || entire action.”’) 17 6. DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its 18 || form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for use in amending. 19 IT IS SO ORDERED. 20 || Dated: December 13, 2021 / Til Wide , 21 Hon. Barry Ted Moskowitz 09 United States District Court 23 24 25 26 27 28 Il ce