Lopez v. Hernandez

• Court: District Court, S.D. California
• Decided: September 11, 2023
• Docket: 3:23-cv-01237
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL STEVEN LOPEZ, Case No.: 3:23-cv-1237-BTM-LR CDCR #AT-4218, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS

15 HERNANDEZ, Correctional Officer, AND 16 Richard J. Donovan Correctional Facility,

17 Defendant. (2) DISMISSING COMPLAINT FOR FAILING TO STATE A 18 CLAIM PURSUANT TO 19 28 U.S.C. § 1915(e)(2)(B)(ii) AND 28 U.S.C. § 1915A(b)(1) 20

21 [ECF No. 2] 22 23 Plaintiff Daniel Steven Lopez, who is proceeding pro se and currently incarcerated 24 at Ironwood State Prison (“ISP”) in Blythe, California, has filed a civil rights Complaint 25 (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1), together with a Motion to Proceed 26 In Forma Pauperis (“IFP”) (ECF No. 2). Lopez claims that while he was incarcerated at 27 Richard J. Donovan Correctional Facility (“RJD”) in San Diego on April 14, 2022, 28 Correctional Officer Hernandez violated his Eighth Amendment rights. See Compl. at 1, 3. 1 For the reasons explained, the Court grants Lopez leave to proceed IFP, but dismisses his 2 Complaint sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. 3 § 1915A(b)(1) for failing to state a claim upon which § 1983 relief can be granted. 4 I. IFP MOTION 5 All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire 8 fee at the time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant 9 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 10 cf. Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] 11 IFP application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the 12 fee[s] [a]re paid.”). 13 “While the previous version of the IFP statute granted courts the authority to waive 14 fees for any person ‘unable to pay[,]’ … the PLRA [Prison Litigation Reform Act] 15 amended the IFP statute to include a carve-out for prisoners: under the current version of 16 the IFP statute, ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the 17 prisoner shall be required to pay the full amount of a filing fee.’” Hymas, 73 F.4th at 767 18 (quoting 28 U.S.C. § 1915(b)(1)). Section 1915(b) “provides a structured timeline for 19 collecting this fee.” Id. (citing 28 U.S.C. § 1915(b)(1)-(2)). 20 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of 21 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account 22 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 23 the filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d 1113, 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does 28 1 1119 (9th Cir. 2005). Using this financial information, the court “shall assess and when 2 funds exist, collect, … an initial partial filing fee,” which is “calculated based on ‘the 3 average monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the 4 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly 5 payments of 20 percent of the preceding month’s income credited to the prisoner’s 6 account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). Thus, while 7 prisoners may qualify to proceed IFP without having to pay the statutory filing fee in one 8 lump sum, they nevertheless remain obligated to pay the full amount due in monthly 9 payments. See Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2); 10 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 11 Here, Lopez’s IFP application complies with both 28 U.S.C. § 1915(a)(1) and (2). 12 In support of his Motion, he has submitted a copy of his California Department of 13 Corrections and Rehabilitation (“CDCR”) Inmate Trust Account Statement Report, 14 together with a certificate issued by an ISP Accounting Officer. See ECF Nos. 2, 3 at 1‒6; 15 see also S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These documents show Lopez 16 maintained an average monthly balance of $44.12 in his prison trust account, and had 17 $45.00 in average monthly deposits credited to his account over the 6-month period 18 immediately preceding the filing of his Complaint. At the time of filing, Lopez’s available 19 balance was $106.93. See ECF No. 3 at 1, 3. 20 Accordingly, the Court grants Lopez’s Motion to Proceed IFP (ECF No. 2) and 21 assesses an initial partial filing fee of $9.00 pursuant to 28 U.S.C. § 1915(b)(1). However, 22 this initial fee need be collected only if sufficient funds are available in Lopez’s account at 23 the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event 24 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or 25 criminal judgment for the reason that the prisoner has no assets and no means by which to 26 pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 27 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 28 solely on a “failure to pay . . . due to the lack of funds available to him when payment is 1 ordered.”). The CDCR must thereafter collect the full balance of the $350 total fee owed 2 in this case and forward payments to the Clerk of the Court as provided by 28 3 U.S.C. § 1915(b)(2). 4 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) & 1915A(b) 5 A. Standard of Review 6 Because Lopez is a prisoner and is proceeding IFP, his Complaint requires a 7 preliminary screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 8 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 9 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 10 who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 11 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 2000) (en 12 banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 13 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 14 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 15 903, 920 n.1 (9th Cir. 2014) (citation omitted). 16 “The standard for determining whether a plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 19 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 20 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 21 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 22 12(b)(6)”). 23 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain 24 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 25 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); 26 Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare 27 recitals of the elements of a cause of action, supported by mere conclusory statements, do 28 not suffice.” Iqbal, 556 U.S. at 678. And while the court “ha[s] an obligation where the 1 petitioner is pro se, particularly in a civil rights case, to construe the pleadings liberally and 2 to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 3 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may 4 not “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents 5 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 6 B. Factual Allegations 7 The allegations in Lopez’s Complaint are sparse, but exhibits attached offer some 8 context.2 He claims that on April 14, 2022, RJD Correctional Officer Hernandez 9 “intimidat[ed]” him by stating: “kid and bitch shit.” See Compl. at 3. Lopez contends this 10 remark made him feel “threatened” because he had an “open case” on Hernandez at the 11 time. Id. 12 While it is unclear what case Lopez is referring to, he attaches to his Complaint 13 copies of a CDCR 602 Inmate/Parolee Appeal dated March 10, 2022, in which Lopez 14 claimed Hernandez “stole a package from [him],” and gave it to another inmate. Id. at 9‒ 15 11. In this grievance, Lopez requested video footage of the incident, and asked to “talk to 16 Internal Affairs” due to “a situation [he] kn[e]w for a fact … was retaliation.” Id. at 11. 17 Lopez claims his grievance, construed as one involving staff misconduct and assigned Log 18 No. 20013805, was eventually sustained by RJD’s Acting Warden Hill on April 10, 2023. 19 See id. at 3, 14. 20 Lopez also attaches a copy of a CDCR Office of Grievances Decision dated February 21 23, 2023, and related to CDCR 602 grievance he submitted on February 3, 2022. Id. at 13. 22

23 2 “Courts must consider the complaint in its entirety,” including “documents incorporated 24 into the complaint by reference” to be part of the pleading when determining whether the 25 plaintiff has stated a claim upon which relief may be granted. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal. Dep’t of Corrs., 151 F.3d 1194, 26 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ. P. 10(c) (“A copy of a written instrument 27 that is an exhibit to a pleading is a part of the pleading for all purposes.”); Kiper v. Nev. State Prison Offs., 332 F. App’x 436, 437 (9th Cir. 2009) (discussing district court’s 28 1 This earlier grievance was assigned Log No. 222956, and also construed as a staff 2 misconduct complaint—but Lopez does not allege, and the exhibit itself does not indicate, 3 whether this grievance involved Officer Hernandez. Id. 4 C. Discussion 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 6 elements: (1) that a right secured by the Constitution or laws of the United States was 7 violated, and (2) that the alleged violation was committed by a person acting under the 8 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 9 1035‒36 (9th Cir. 2015). 10 Lopez contends Hernandez’s April 14, 2022 intimidating “kid and bitch shit” remark 11 violated his Eighth Amendment right to be free from cruel and unusual punishment. See 12 Compl. at 3. However, an inmate “being subjected to abusive language ... [v]erbal 13 harassment or abuse ... is not sufficient to state a constitutional deprivation under 42 U.S.C. 14 § 1983.” Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997), overruled in part on other 15 grounds by Shakur v. Schriro, 514 F.3d 878, 884‒85 (9th Cir. 2008). Verbal harassment, 16 name-calling, vulgarity, intimidation, or threats do not by themselves constitute cruel and 17 unusual punishment. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (Eighth 18 Amendment protections do not “extend to mere verbal sexual harassment.”); Keenan v. 19 Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (holding verbal harassment, standing alone, does 20 not violate the Eighth Amendment), amended on denial of reh’g, 135 F.3d 1318 (9th Cir. 21 1998); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (“[V]ulgar language” 22 and “[v]erbal harassment or abuse . . . is not sufficient to state a constitutional deprivation 23 under 42 U.S.C. § 1983.”); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (“[I]t trivializes 24 the Eighth Amendment to believe a threat constitutes a constitutional wrong. The fact that 25 [a] complaint alleges the threat to be for the purpose of denying … access to the courts 26 does not compel a contrary result.”); Edwards v. California State Prison Los Angeles Cnty., 27 No. CV 09-02584 GAF AN, 2012 WL 3023317, at *11 (C.D. Cal. July 23, 2012) (medical 28 official’s repeated references to inmate as a “bitch” failed to violate Eighth Amendment). 1 In short, while unprofessional and inappropriate, such conduct does not constitute 2 the “unnecessary and wanton infliction of pain” required to sustain an Eighth Amendment 3 violation. See e.g., Blueford v. Prunty, 108 F.3d 251, 256 (9th Cir. 1997) (affirming 4 summary adjudication in favor of the prison officials where “the only arguably sexually 5 harassing conduct ... was verbal”); Zavala v. Barnik, 545 F. Supp. 2d 1051, 1059 (C.D. 6 Cal. 2008) (finding comments about Plaintiff’s racial, ethnic, or alienage background 7 insufficient to state a claim), aff’d sub nom. Zavala v. Bartnik, 348 F. App’x 211 (9th Cir. 8 2009). 9 For these reasons, the Court sua sponte dismisses Lopez’s Eighth Amendment claim 10 for relief pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1). See Iqbal, 11 556 U.S. at 678; Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. 12 However, because Lopez claims to have had an “open case” against Officer 13 Hernandez at the time he is alleged to have verbally intimidated him on April 14, 2022, see 14 Compl. at 3, the Court will consider whether Lopez has alleged a viable First Amendment 15 retaliation claim for relief as well. See Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 642 16 (9th Cir. 2018) (noting court’s “obligation where the petitioner is pro se, particularly in 17 civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit 18 of any doubt.”) (citations omitted); Alvarez v. Hill, 518 F.3d 1152, 1157–58 (9th Cir. 2008) 19 (“A complaint need not identify the statutory or constitutional source of the claim raised in 20 order to survive a motion to dismiss.”). 21 Allegations of retaliation following a prisoner’s exercise of his First Amendment 22 right to free speech or to petition the government for redress may support a § 1983 claim. 23 Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 24 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). A 25 retaliation claim has five elements. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 26 First, Lopez must allege that the retaliated-against conduct is protected. Watison, 668 F.3d 27 at 1114. Second, Lopez must allege Hernandez took some adverse action against him. 28 Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). Third, Lopez must allege a causal 1 connection between the adverse action and the protected conduct. Watison, 668 F.3d at 2 1114. Fourth, he must allege the “official’s acts would chill or silence a person of ordinary 3 firmness from future First Amendment activities.” Rhodes, 408 F.3d at 568 (internal 4 quotation marks and emphasis omitted). Fifth, Lopez must allege that the retaliatory action 5 “d[id] not advance legitimate penological goals, such as preserving institutional order and 6 discipline.” Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003) (citations omitted); Watison, 7 668 F.3d at 1114‒15. 8 Here, while Lopez’s pleading includes facts sufficient to plausibly show he had 9 engaged in protected conduct by filing at least once CDCR 602 grievance against 10 Hernandez, see Rhodes, 408 F.3d at 568 (filing of an inmate grievance is protected 11 conduct), and that Hernandez later verbally intimidated him, see Brodheim, 584 F.3d at 12 1270 (“[T]he mere threat of harm can be an adverse action.”); Pratt, 65 F.3d at 808 13 (“[T]iming can properly be considered as circumstantial evidence of retaliatory intent.”), 14 he falls short of pleading any causal connection between Hernandez’s remarks and his 15 protected conduct, or any of the remaining elements of a viable First Amendment claim. 16 For example, Lopez claims he “felt threatened” by Hernandez’s remarks “due to 17 [his] having an open case on him,” see Compl. at 3, but he offers no further “factual 18 content” which plausibly suggests Hernandez was “actually aware” Lopez had filed a 19 grievance against him, see Pratt, 65 F.3d at 808, or that Lopez’s grievance caused or 20 motivated Hernandez’s “kid and bitch shit” comment. See Iqbal, 556 U.S. at 678 21 (“‘[N]aked assertion[s]’ devoid of ‘further factual enhancement’” fail to state a plausible 22 claim for relief) (citation omitted); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 23 (9th Cir. 1989) (retaliation claims require the plaintiff to show his protected conduct was 24 “the ‘substantial’ or ‘motivating’ factor behind the defendant’s conduct.”); see also 25 Hartman v. Moore, 547 U.S. 250, 259 (2006) (plaintiff “must show a causal connection 26 between a defendant’s retaliatory animus and subsequent injury in any sort of retaliation 27 action.”). 28 / / / 1 Moreover, Lopez’s Complaint is devoid of facts which plausibly show Hernandez’s 2 April 14, 2022 remark actually chilled the exercise of his First Amendment rights, “would 3 chill or silence a person of ordinary firmness from future First Amendment activities,” 4 Rhodes, 408 F.3d at 568, or caused him to “suffer[] some other harm” that was “more than 5 minimal.” Brodheim, 584 F.3d at 1269; Rhodes, 408 F.3d at 568 n.11. Finally, Lopez fails 6 to allege Hernandez’s comment “failed to advance a legitimate goal of the correctional 7 institution.” Rizzo, 778 F.2d at 532; Watison, 668 F.3d at 1114‒15. “The plaintiff bears the 8 burden of pleading and proving the absence of legitimate correctional goals for the conduct 9 of which he complains.” Pratt, 65 F.3d at 806. 10 For all these reasons, the Court finds Lopez’s Complaint also fails to allege a 11 plausible First Amendment retaliation claim upon which § 1983 relief can be granted. See 12 Iqbal, 556 U.S. at 678; Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. 13 III. CONCLUSION 14 Accordingly, the Court: 15 1) GRANTS Lopez’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 16 (ECF No. 2). 17 2) ORDERS the Secretary of the CDCR, or his designee, to collect from Lopez’s 18 trust account the $9.00 initial filing fee assessed, if those funds are available at the time 19 this Order is executed, and forward whatever balance remains of the full $350 owed in 20 monthly payments in an amount equal to twenty percent (20%) of the preceding month’s 21 income to the Clerk of the Court each time the amount in Lopez’s account exceeds $10 22 pursuant to 28 U.S.C. § 1915(b)(2). 23 3) DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 24 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, via 25 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov. 26 4) DISMISSES Lopez’s Complaint in its entirety for failing to state a claim 27 upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 § 1915A(b)(1); and 1 5) GRANTS Lopez forty-five (45) days leave from the date of this Order in 2 which to file an Amended Complaint which cures the deficiencies of pleading noted. 3 Lopez’s Amended Complaint must be complete by itself without reference to his original 4 pleading. Any Defendant not named and any claim not re-alleged in his Amended 5 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 6 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 7 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 8 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 9 amended pleading may be “considered waived if not repled.”). 10 If Lopez fails to file an Amended Complaint within 45 days, the Court will enter a 11 final Order dismissing this civil action based both on his failure to state a claim upon which 12 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure 13 to prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 14 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the 15 opportunity to fix his complaint, a district court may convert the dismissal of the complaint 16 into dismissal of the entire action.”). 17 IT IS SO ORDERED. 18 Dated: September 11, 2023 19 Honorable Barry Ted Moskowitz United States District Judge 20 21 22 23 24 25 26 27 28