Rademaker v. Ganzekaufer

• Court: District Court, S.D. California
• Decided: April 25, 2022
• Docket: 3:21-cv-01757
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID RADEMAKER, Case No.: 21-CV-1757 JLS (AHG) CDCR #P-01361, 12 ORDER: (1) DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS; v. (2) DENYING MOTION TO 14 APPOINT COUNSEL; (3) DENYING DR. GANZEKAUFER, PH.D, CDCR 15 MOTION FOR A TEMPORARY Psychologist; COVELLO, Warden; RESTRAINING ORDER; AND 16 Q. JACKSON, Correctional Sergeant; (4) DISMISSING CIVIL ACTION P. GONZALEZ, Correctional Officer; 17 WITHOUT PREJUDICE FOR ZAMBRANO, Correctional Officer; and FAILURE TO PAY FILING FEES 18 STEADMAN, Warden, REQUIRED BY 28 U.S.C. § 1914(a) 19 Defendants. (ECF Nos. 2–4) 20 21 22 Plaintiff David Rademaker, currently incarcerated at Richard J. Donovan 23 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this action 24 brought pursuant to 42 U.S.C. § 1983. Currently pending before the Court are his Amended 25 Complaint (“FAC,” ECF No. 12); Motion to Proceed in Forma Pauperis (“IFP Mot.,” ECF 26 No. 2); Motion to Appoint Counsel (“Counsel Mot.,” ECF No. 3); and “Order to Show 27 Cause for a[] Preliminary Injunction and Restraining Order,” which the Court liberally 28 construes as a Motion for a Temporary Restraining Order (“TRO Mot.,” ECF No. 4). 1 In his FAC, Plaintiff alleges an RJD psychologist, two wardens, and several other 2 RJD correctional officials violated his Eighth and Fourteenth Amendment rights in July 3 2019 by failing to protect him from an attack by two fellow inmates. See FAC at 14‒15, 4 17‒21. Plaintiff further claims Defendant Zambrano violated Plaintiff’s First and 5 Fourteenth Amendment rights by tampering with his mail in August 2021 in order to 6 “silence or intimidate him.” Id. at 16‒17, 21‒22. Plaintiff’s TRO Motion seeks a Court 7 order enjoining Defendant Zambrano from “any mail distribution or handling.” See TRO 8 Mot. at 1. 9 MOTION TO PROCEED IN FORMA PAUPERIS 10 All parties instituting any civil action, suit, or proceeding in a district court of the 11 United States, except an application for writ of habeas corpus, must pay a filing fee of 12 $402.1 See 28 U.S.C. § 1914(a). Pursuant to 28 U.S.C. § 1915(a), however, the Court may 13 authorize commencement of a civil case without payment of the filing fee. Whether an 14 affiant has satisfied § 1915(a) falls within “the reviewing court[’s] . . . sound discretion.” 15 Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 16 506 U.S. 194 (1993). A party need not “be absolutely destitute” to proceed in forma 17 pauperis (“IFP”). Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). 18 “Nonetheless, a plaintiff seeking IFP status must allege poverty ‘with some particularity, 19 definiteness, and certainty.’” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) 20 (citing United States v. McQuade, 647 F.3d 938, 940 (9th Cir. 1981)). 21 “An affidavit in support of an IFP application is sufficient where it alleges that the 22 affiant cannot pay the court costs and still afford the necessities of life.” Id. And, while 23 “a prisoner’s financial needs are not the same as those of a non-prisoner,” and one “without 24 funds [may] not be denied access to a federal court based on his poverty,” Taylor v. 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 27 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 not apply to persons granted leave to proceed 28 1 Delatoore, 281 F.3d 844, 849 (9th Cir. 2002) (citing 28 U.S.C. § 1915(b)(4)), “even- 2 handed care must be employed to assure that federal funds are not squandered to 3 underwrite, at public expense, either frivolous claims or the remonstrances of a suitor who 4 is financially able, in whole or in part, to pull his own oar,” Temple v. Ellerthorp, 586 F. 5 Supp. 848, 850 (D.R.I. 1984); see also Frost v. Child & Family Services of San Bernardino 6 Cty. & San Bernardino Juvenile Court, No. 3:20-CV-2402-JLS-BLM, 2021 WL 1195834, 7 at *1 (S.D. Cal. Mar. 30, 2021). 8 Before the enactment of the Prison Litigation Reform Act (the “PLRA”) in 1996, 9 “indigent prisoners, like other indigent persons, could file a civil action without paying any 10 filing fee.” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016) (citing 28 U.S.C. § 1915(a)(1)). 11 The PLRA however, “placed several limitations on prisoner litigation in federal courts.” 12 Id. at 84. While his civil action or appeal may proceed upon submission of an affidavit 13 that demonstrates an “[i]nab[ility] to pay such fees or give security therefor,” 28 U.S.C. 14 § 1915(a); see also Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez 15 v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999), a prisoner granted leave to proceed IFP 16 remains obligated to pay an initial partial filing fee, and thereafter the remaining portion of 17 the entire fee in “increments” or “installments,” Bruce 577 U.S. at 84, 85; Williams v. 18 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his case is ultimately 19 dismissed, see 28 U.S.C. § 1915(b)(1) & (2); Taylor, 281 F.3d at 847. Thus, section 20 1915(a)(2) requires prisoners to submit a “certified copy of the[ir] trust fund account 21 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 22 the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 23 1119 (9th Cir. 2005). From the certified trust account statement, “the district court must 24 make a series of factual findings regarding the prisoner’s assets.” Taylor, 281 F.3d at 847 25 n.2. 26 In support of his IFP Motion, Plaintiff has submitted two prison certificates 27 authorized by an RJD accounting specialist, as well as copies of his CDCR Inmate 28 Statement Report for the 6-month period prior to the filing of his Complaint. See ECF Nos. 1 6, 10; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. But these 2 documents do not demonstrate Plaintiff is “unable to pay” the $402 civil filing fee. See 28 3 U.S.C. § 1915(a).2 Instead, Plaintiff’s submissions show he has had $533.86 in average 4 monthly deposits, carried an average monthly balance of $2,402.87 over the 6 months 5 immediately preceding the filing of this action, and had an available balance of $2,036.45 6 to his credit at the time of submission. See ECF Nos. 6, 10 at 1; cf. Roberts v. Hensley, No. 7 3:15-CV-1871-LAB (BLM), 2019 WL 2618124, at *2 (S.D. Cal. June 25, 2019) (finding 8 prisoner was “clearly indigent” where “[h]e ha[d] no funds in any of his accounts and thus 9 would be unable to pay any costs assessed to him”). 10 Thus, because the $480.57 initial partial filing fee assessed pursuant to 28 U.S.C. 11 § 1915(b)(1)(B) exceeds the $402 civil filing fee due, the Court DENIES Plaintiff’s 12 Motion to Proceed in Forma Pauperis (ECF No. 2). 13 MOTION TO APPOINT COUNSEL 14 Plaintiff has also filed a Motion to Appoint Counsel. See generally Counsel Mot. 15 There is, however, no constitutional right to counsel in a civil case. Lassiter v. Dept. of 16 Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 17 And, while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to “request” 18 that an attorney represent an indigent civil litigant, this discretion is exercised only under 19 “exceptional circumstances” not currently present here and necessarily depends upon a 20 21 2 Indeed, a document attached to his TRO Motion indicates Plaintiff is also paying inmate Robert Cavalier, 22 CDCR #E-98747, for “helping [him] with law work.” See TRO Mot. at 3. Cavalier has also signed Plaintiff’s Motion to Appoint Counsel as having executed it on Plaintiff’s behalf. See Counsel Mot. at 2. 23 The Court cautions Plaintiff that, while Cavalier may assist him, Cavalier may not file documents in this case on Plaintiff’s behalf. Although “parties may plead and conduct their own cases personally,” see 28 24 U.S.C. § 1654, “the right to proceed pro se in civil cases is a personal right,” and a person appearing pro 25 se has no authority to represent others, C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987); see also Johns v. Cty. of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (“While a non-attorney 26 may appear pro se on his own behalf, he has no authority to appear as an attorney for others than himself.”) (citations and quotation marks omitted); see also S.D. Cal CivLR 5.1(h) (“Except as provided by the 27 federal rules, or by leave of court, no document will be filed in any case by any person not a party thereto.”); S.D. Cal. CivLR 83.11(a) (“Any person who is appearing propria persona, (without an attorney) 28 1 plaintiff’s IFP status. See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); see also 28 U.S.C. 3 § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 4 counsel.”) (emphasis added). Thus, because no exceptional circumstances warrant the 5 appointment of counsel in this case at this time, and because Plaintiff has not demonstrated 6 he is “unable to afford counsel” pursuant to 28 U.S.C. §§ 1915(a) and 1915(e)(1), the Court 7 DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 3). 8 MOTION FOR A TEMPORARY RESTRAINING ORDER 9 Plaintiff also seeks preliminary injunctive relief enjoining Correctional Officer 10 Zambrano, who Plaintiff alleges tampered with his legal mail in August 2021, from taking 11 any future action with respect to “any mail distribution or handling.” See TRO Mot. at 1. 12 However, to the extent Plaintiff seeks a TRO without notice upon an adverse party, 13 he cannot prevail because his submission fails to set out “specific facts in an affidavit or a 14 verified complaint . . . [which] clearly show that immediate and irreparable injury, loss, or 15 damage will result . . . before the adverse party can be heard in opposition.” Fed. R. Civ. 16

17 18 3 In fact, while Plaintiff alleges he is disabled, and a participant in the CDCR’s Enhanced Outpatient Treatment Program due to “serious mental illness and neuro-cognitive defects,” see Counsel Mot. at 1, a 19 fellow inmate has assisted him in submitting both his original and amended complaints, which at this stage of the case do not demonstrate that Plaintiff is unable to “articulate his claims pro se in light of the 20 complexity of the legal issues involved,” Wilborn v. Escalderon¸789 F.2d 1328, 1331 (9th Cir. 1986). 21 Indeed, the Court takes judicial notice of its own dockets, which show that, even without assistance, Plaintiff has filed and successfully prosecuted two prior pro se civil rights actions in this Court. See e.g., 22 Rademaker v. Paramo, No. 17-CV-02406-JLB-KSC, 2019 WL 4736215, at *13 (S.D. Cal. Sept. 26, 2019) (order granting summary judgment as to First Amendment free exercise claims); Rademaker v. Juarez, 23 No. 18-CV-1831-WQH-AGS, 2020 WL 837344, at *1 (S.D. Cal. Feb. 20, 2020) (order denying Motion for Injunctive Relief as to Plaintiff’s access to kosher meals); see id. ECF Nos. 63, 64 (orders granting 24 Joint Motions to Dismiss with prejudice due to settlement). A court may take judicial notice of its own 25 records, see Molus v. Swan, Civil Case No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen 26 v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have 27 a direct relation to matters at issue,’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson 28 1 P. 65(b)(1)(A). Further, Plaintiff requests injunctive relief preventing Zambrano from 2 handling Plaintiff’s mail, but Plaintiff also admits Zambrano is no longer assigned to his 3 housing unit. See TRO Mot. at 2. Thus, even if the Court had the power to grant 4 preliminary injunctive relief at this stage of the case, Plaintiff’s own allegations belie any 5 showing of immediate and irreparable injury. See Fed. R. Civ. P. 65(b)(1); Gomez v. 6 Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001) (“[I]njunctive relief is ‘to be used sparingly, 7 and only in a clear and plain case,’” especially when the court is asked to enjoin the conduct 8 of a state agency.) (quoting Rizzo v. Goode, 423 U.S. 362, 378 (1976)). 9 Moreover, a federal district court may issue emergency injunctive relief only if it 10 has personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit. 11 See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting 12 that one “becomes a party officially, and is required to take action in that capacity, only 13 upon service of summons or other authority-asserting measure stating the time within 14 which the party served must appear to defend.”). This Court may not attempt to determine 15 the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245 16 U.S. 229, 234–35 (1916); Zepeda v. INS, 753 F.2d 719, 727–28 (9th Cir. 1983). Pursuant 17 to Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the 18 action”; their “officers, agents, servants, employees, and attorneys”; and “other persons 19 who are in active concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)–(C). 20 Because Plaintiff is not entitled to proceed IFP, he is not entitled to U.S. Marshal 21 service pursuant to 28 U.S.C. § 1915(d), and he has yet to file proof of service upon 22 Zambrano or any other named Defendant on his own. See Fed. R. Civ. P. 5(d)(1)(B)(i); 23 S.D. Cal. CivLR 5.2. No RJD official named in either Plaintiff’s original Complaint or his 24 FAC has been provided actual notice of the existence of this civil action, nor has any 25 Defendant been served with Plaintiff’s TRO Motion. Thus, regardless of any conceivable 26 merit, the Court DENIES Plaintiff’s TRO Motion because the Court cannot grant 27 injunctive relief when it has no personal jurisdiction over the party whose actions it seeks 28 to enjoin. See Fed. R. Civ. P. 65(a)(1), (d)(2); Murphy Bros., Inc., 526 U.S. at 350; Zepeda, 1 753 F.2d at 727–28. A district court has no authority to grant relief in the form of a 2 temporary restraining order or permanent injunction where it has no jurisdiction over the 3 parties. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (“Personal 4 jurisdiction, too, is an essential element of the jurisdiction of a district . . . court, without 5 which the court is powerless to proceed to an adjudication.”) (citation and internal 6 quotation omitted). 7 CONCLUSION 8 In light of the foregoing, the Court DENIES Plaintiff’s Motion to Proceed IFP (ECF 9 No. 2) because it demonstrates Plaintiff is able to pay the full $402 civil filing fee, DENIES 10 Plaintiff’s Motion to Appoint Counsel without prejudice (ECF No. 3), DENIES Plaintiff’s 11 Motion for a Temporary Restraining Order (ECF No. 4), and DISMISSES this civil action 12 WITHOUT PREJUDICE based on Plaintiff’s failure to satisfy 28 U.S.C. § 1914(a)’s 13 filing fee requirements. 14 Plaintiff may reopen this case by paying the full $402 filing fee on or before 15 Monday, June 13, 2022.4 If Plaintiff chooses this course, Plaintiff must ensure his check 16 is submitted and made payable to the Clerk of the Court, U.S. District Court, Southern 17 District of California, and must include reference to Civil Case No. 3:21-cv-01757-JLS- 18 AHG. 19 / / / 20 21 4 Should Plaintiff elect to re-open this case by paying the full $402 civil filing fee, Plaintiff is cautioned 22 that his Amended Complaint will be subject to initial screening as mandated by 28 U.S.C. § 1915A. Also enacted as part of the PLRA, section 1915A requires the Court to “review, … as soon as practicable after 23 docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental officer or employee of a governmental entity.” Id. § 1915A(a). “The court shall identify cognizable claims or 24 dismiss the complaint, or any portion of the complaint, if the complaint—(1) is frivolous, malicious, or 25 fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” Id. §§ 1915A(b)(1), (2). “The purpose of § 1915A is ‘to ensure that the 26 targets of frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). Moreover, because Plaintiff is not entitled to proceed 27 IFP pursuant to 28 U.S.C. § 1915, he will remain “responsible for having the summons and complaint served within the time allowed by Rule 4(m)” should his Amended Complaint survive the sua sponte 28 1 If Plaintiff does not pay the full $402 filing fee in one lump sum on or before June 2 || 13, 2022, this case will remain dismissed without prejudice and without further Order of 3 Court based on Plaintiff's failure to comply with 28 U.S.C. § 1914(a). 4 IT IS SO ORDERED. 5 Dated: April 25, 2022 . tt f Le 6 on. Janis L. Sammartino 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8