1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 DELBERT RONDEL GARDNER, ) NO. CV 20-2221-VBF (AGR) ) 12 Plaintiff, ) ) ORDER TO SHOW CAUSE WHY 13 v. ) COURT SHOULD NOT ) RECOMMEND (1) DISMISSAL 14 DIAZ, et al., ) OF COMPLAINT; AND (2) ) DENIAL OF REQUEST TO 15 Defendants. ) PROCEED WITHOUT ) PREPAYMENT OF FILING FEES 16 ) ) 17 ) 18 The court orders Plaintiff to show cause on or before April 20, 2020, why 19 this court should not recommend dismissal of his complaint and denial of his 20 request to proceed without prepayment of filing fees because his complaint fails 21 to state a claim for relief. 22 I. 23 BACKGROUND 24 On January 31, 2020, Plaintiff, a state prisoner, filed a civil rights complaint 25 and a Request to Proceed Without Prepayment of Filing Fees in the Southern 26 District of California. The complaint was transferred to the Central District of 27 California. The Court has screened the complaint to determine whether it fails to 28 state a claim on which relief may be granted. 1 To survive dismissal, "a complaint must contain sufficient factual matter, 2 accepted as true, to ‘state a claim to relief that is plausible on its face.'" Ashcroft 3 v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). "A claim has facial 4 plausibility when the plaintiff pleads factual content that allows the court to draw 5 the reasonable inference that the defendant is liable for the misconduct alleged. 6 The plausibility standard is not akin to a ‘probability requirement,' but it asks for 7 more than a sheer possibility that a defendant has acted unlawfully." Id. (citations 8 omitted). 9 A pro se complaint is to be liberally construed. Erickson v. Pardus, 551 10 U.S. 89, 94 (2007) (per curiam). Before dismissing a pro se civil rights complaint 11 for failure to state a claim, the plaintiff should be given a statement of the 12 complaint's deficiencies and an opportunity to cure them unless it is clear the 13 deficiencies cannot be cured by amendment. Eldridge v. Block, 832 F.2d 1132, 14 1135-36 (9th Cir. 1987). 15 II. 16 FACTUAL BACKGROUND AND JUDICIAL NOTICE 17 The complaint is difficult to understand. 18 The court therefore takes judicial notice pursuant to Fed. R. Evid. 201 of the 19 following facts to provide necessary background for Plaintiff’s complaint: 20 1. Plaintiff was sentenced to 25 years to life in prison after a jury found 21 him guilty of first degree burglary with a person present, and found 22 true three prior strike conviction allegations, in Imperial County 23 Superior Court Case No. JCF26539. People v. Gardner, 2012 Cal. 24 App. Unpub. LEXIS 9305 (Dec. 19, 2012). 25 2. Plaintiff entered into settlements on May 19, 2016 in the following 26 civil rights cases in the Central District of California: Case Nos. CV 27 13-4376; CV 13-9013; CV 15-7544; CV 15-8927; and CV 16-1084 28 (hereinafter “Central District Settlement Cases”). 1 3. Defendants filed a “Notice of Compliance With Settlement Terms” on 2 October 31, 2016 in the Central District Settlement Cases that 3 attached an Inmate Statement Report dated 10/31/2016 showing 4 deposits of $1931.99 in settlements funds on 10/25/2016, which is 5 the amount left over after deduction of a 5% fee of $68.01 pursuant 6 to Cal. Penal Code § 2085.5(i). (Shaff Decl. ¶ 9 & Exh. A.) At the 7 time (10/25/2016), deductions in the amount of $1360.14 were made 8 for restitution payments in two state criminal cases ($1000 + $285.92 9 + $74.22). (Dkt. No. 126 in Case No. CV 13-4376.) 10 4. Plaintiff constructively filed objections to the deductions for restitution 11 payments on November 7, 2016 in the Central District Settlement 12 Cases. (Dkt. No. 128, CV 13-4376.) 13 5. This court referred this dispute to the prisoner settlement program in 14 the Central District Settlement Cases. (Dkt. No. 129, CV 13-4376.) 15 The court has reviewed the subsequent CDCR Inmate Statement Report 16 dated January 10, 2017, which was attached to Plaintiff’s First Amended 17 Complaint in Gardner v. Bisset, CV 17-1921 AC (PC) (E.D. Cal.).1 18 The January 10, 2017 CDCR Inmate Statement Report indicates that, as of 19 November 8, 2016, Plaintiff’s inmate trust account had a balance of $1393.58. 20 (Dkt. No. 28 at 30.) The statement indicates that the deductions for restitution 21 payments were reversed and those amounts reinstated as of November 8, 2016. 22 (Id.) The Clerk is directed to attach the January 10, 2017 CDCR Inmate 23 Statement Report as Exhibit 1 to this Order to Show Cause. 24 25 26 27 1 Plaintiff subsequently filed a Second Amended Complaint in the Bissett case but did not attach the same documents for some reason. The Bissett case 28 is closed. 1 III. 2 THE COMPLAINT FAILS TO STATE A CLAIM FOR RELIEF 3 Plaintiff sues various people in two prisons for “keeping monies that did not 4 belong to state for restitution.” (Compl. at 2.)2 Plaintiff appears to believe that the 5 reason has to do with his “non-existent” CDCR No. AK0580.3 (Id.) Plaintiff also 6 contends he has been “incarcerated unlawfully.” (Id. at 2, 3, 9.) 7 A. Plaintiff’s Claim That He Is Unlawfully Imprisoned Must Be Made 8 by Petition for Writ of Habeas Corpus in the Southern District of 9 California 10 Plaintiff was convicted and sentenced in Imperial County Superior Court. 11 Imperial County is in the Southern District of California. 28 U.S.C. § 84(d). 12 To the extent Plaintiff contends he is unlawfully imprisoned, his sole avenue 13 for relief is a petition for writ of habeas corpus, which he has apparently filed in 14 the Southern District of California according to the Order Transferring Civil Action 15 in this case. (Dkt. No. 4 at 2:25-26.) See Muhammad v. Close, 540 U.S. 749, 16 750 (2004) (“Challenges to the validity of any confinement or to particulars 17 affecting its duration are the province of habeas corpus.”); Nettles v. Grounds, 18 830 F.3d 922, 927 (9th Cir. 2016) (en banc) (“Court has long held that habeas is 19 the exclusive vehicle for claims brought by state prisoners that fall within the core 20 of habeas, and such claims may not be brought in a § 1983 action”). 21 22 2 Because the complaint is not paginated consecutively, the court cites the 23 page numbers assigned by CM/ECF in the header. 24 3 Plaintiff was mistakenly assigned CDCR No. AK0580 when he arrived at state prison after his conviction and sentence in Imperial County Superior Court 25 Case No. JCF26539. According to the second level response to Plaintiff’s grievance dated January 22, 2018 and attached to the First Amended Complaint 26 in Bisset, Plaintiff was “inadvertently given AK0580 as a new CDCR number. You were a parole violator with a new term and should not have been given this 27 new number. A status change was completed by R.J. Donovan Reception Center, and the correction was made and your current CDCR number is E71905.” 28 (First Am. Compl., Dkt. No. 28 at 92.) 1 B. Plaintiff’s Claim That the Deductions for Restitution Should Not 2 Have Been Made Appears to Be Moot 3 Plaintiff contends someone “embezzled monies of settlement for a fictitious 4 CDCR number AK0580.” 5 Plaintiff attaches the same October 31, 2016 CDCR Inmate Statement 6 Report that the Defendants filed in the Central District Settlement Cases. 7 (Compl. at 6.) That statement shows the three deductions for restitution 8 payments in the combined amount of $1360.14 ($1000 + $285.92 + $74.22).
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 DELBERT RONDEL GARDNER, ) NO. CV 20-2221-VBF (AGR) ) 12 Plaintiff, ) ) ORDER TO SHOW CAUSE WHY 13 v. ) COURT SHOULD NOT ) RECOMMEND (1) DISMISSAL 14 DIAZ, et al., ) OF COMPLAINT; AND (2) ) DENIAL OF REQUEST TO 15 Defendants. ) PROCEED WITHOUT ) PREPAYMENT OF FILING FEES 16 ) ) 17 ) 18 The court orders Plaintiff to show cause on or before April 20, 2020, why 19 this court should not recommend dismissal of his complaint and denial of his 20 request to proceed without prepayment of filing fees because his complaint fails 21 to state a claim for relief. 22 I. 23 BACKGROUND 24 On January 31, 2020, Plaintiff, a state prisoner, filed a civil rights complaint 25 and a Request to Proceed Without Prepayment of Filing Fees in the Southern 26 District of California. The complaint was transferred to the Central District of 27 California. The Court has screened the complaint to determine whether it fails to 28 state a claim on which relief may be granted. 1 To survive dismissal, "a complaint must contain sufficient factual matter, 2 accepted as true, to ‘state a claim to relief that is plausible on its face.'" Ashcroft 3 v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). "A claim has facial 4 plausibility when the plaintiff pleads factual content that allows the court to draw 5 the reasonable inference that the defendant is liable for the misconduct alleged. 6 The plausibility standard is not akin to a ‘probability requirement,' but it asks for 7 more than a sheer possibility that a defendant has acted unlawfully." Id. (citations 8 omitted). 9 A pro se complaint is to be liberally construed. Erickson v. Pardus, 551 10 U.S. 89, 94 (2007) (per curiam). Before dismissing a pro se civil rights complaint 11 for failure to state a claim, the plaintiff should be given a statement of the 12 complaint's deficiencies and an opportunity to cure them unless it is clear the 13 deficiencies cannot be cured by amendment. Eldridge v. Block, 832 F.2d 1132, 14 1135-36 (9th Cir. 1987). 15 II. 16 FACTUAL BACKGROUND AND JUDICIAL NOTICE 17 The complaint is difficult to understand. 18 The court therefore takes judicial notice pursuant to Fed. R. Evid. 201 of the 19 following facts to provide necessary background for Plaintiff’s complaint: 20 1. Plaintiff was sentenced to 25 years to life in prison after a jury found 21 him guilty of first degree burglary with a person present, and found 22 true three prior strike conviction allegations, in Imperial County 23 Superior Court Case No. JCF26539. People v. Gardner, 2012 Cal. 24 App. Unpub. LEXIS 9305 (Dec. 19, 2012). 25 2. Plaintiff entered into settlements on May 19, 2016 in the following 26 civil rights cases in the Central District of California: Case Nos. CV 27 13-4376; CV 13-9013; CV 15-7544; CV 15-8927; and CV 16-1084 28 (hereinafter “Central District Settlement Cases”). 1 3. Defendants filed a “Notice of Compliance With Settlement Terms” on 2 October 31, 2016 in the Central District Settlement Cases that 3 attached an Inmate Statement Report dated 10/31/2016 showing 4 deposits of $1931.99 in settlements funds on 10/25/2016, which is 5 the amount left over after deduction of a 5% fee of $68.01 pursuant 6 to Cal. Penal Code § 2085.5(i). (Shaff Decl. ¶ 9 & Exh. A.) At the 7 time (10/25/2016), deductions in the amount of $1360.14 were made 8 for restitution payments in two state criminal cases ($1000 + $285.92 9 + $74.22). (Dkt. No. 126 in Case No. CV 13-4376.) 10 4. Plaintiff constructively filed objections to the deductions for restitution 11 payments on November 7, 2016 in the Central District Settlement 12 Cases. (Dkt. No. 128, CV 13-4376.) 13 5. This court referred this dispute to the prisoner settlement program in 14 the Central District Settlement Cases. (Dkt. No. 129, CV 13-4376.) 15 The court has reviewed the subsequent CDCR Inmate Statement Report 16 dated January 10, 2017, which was attached to Plaintiff’s First Amended 17 Complaint in Gardner v. Bisset, CV 17-1921 AC (PC) (E.D. Cal.).1 18 The January 10, 2017 CDCR Inmate Statement Report indicates that, as of 19 November 8, 2016, Plaintiff’s inmate trust account had a balance of $1393.58. 20 (Dkt. No. 28 at 30.) The statement indicates that the deductions for restitution 21 payments were reversed and those amounts reinstated as of November 8, 2016. 22 (Id.) The Clerk is directed to attach the January 10, 2017 CDCR Inmate 23 Statement Report as Exhibit 1 to this Order to Show Cause. 24 25 26 27 1 Plaintiff subsequently filed a Second Amended Complaint in the Bissett case but did not attach the same documents for some reason. The Bissett case 28 is closed. 1 III. 2 THE COMPLAINT FAILS TO STATE A CLAIM FOR RELIEF 3 Plaintiff sues various people in two prisons for “keeping monies that did not 4 belong to state for restitution.” (Compl. at 2.)2 Plaintiff appears to believe that the 5 reason has to do with his “non-existent” CDCR No. AK0580.3 (Id.) Plaintiff also 6 contends he has been “incarcerated unlawfully.” (Id. at 2, 3, 9.) 7 A. Plaintiff’s Claim That He Is Unlawfully Imprisoned Must Be Made 8 by Petition for Writ of Habeas Corpus in the Southern District of 9 California 10 Plaintiff was convicted and sentenced in Imperial County Superior Court. 11 Imperial County is in the Southern District of California. 28 U.S.C. § 84(d). 12 To the extent Plaintiff contends he is unlawfully imprisoned, his sole avenue 13 for relief is a petition for writ of habeas corpus, which he has apparently filed in 14 the Southern District of California according to the Order Transferring Civil Action 15 in this case. (Dkt. No. 4 at 2:25-26.) See Muhammad v. Close, 540 U.S. 749, 16 750 (2004) (“Challenges to the validity of any confinement or to particulars 17 affecting its duration are the province of habeas corpus.”); Nettles v. Grounds, 18 830 F.3d 922, 927 (9th Cir. 2016) (en banc) (“Court has long held that habeas is 19 the exclusive vehicle for claims brought by state prisoners that fall within the core 20 of habeas, and such claims may not be brought in a § 1983 action”). 21 22 2 Because the complaint is not paginated consecutively, the court cites the 23 page numbers assigned by CM/ECF in the header. 24 3 Plaintiff was mistakenly assigned CDCR No. AK0580 when he arrived at state prison after his conviction and sentence in Imperial County Superior Court 25 Case No. JCF26539. According to the second level response to Plaintiff’s grievance dated January 22, 2018 and attached to the First Amended Complaint 26 in Bisset, Plaintiff was “inadvertently given AK0580 as a new CDCR number. You were a parole violator with a new term and should not have been given this 27 new number. A status change was completed by R.J. Donovan Reception Center, and the correction was made and your current CDCR number is E71905.” 28 (First Am. Compl., Dkt. No. 28 at 92.) 1 B. Plaintiff’s Claim That the Deductions for Restitution Should Not 2 Have Been Made Appears to Be Moot 3 Plaintiff contends someone “embezzled monies of settlement for a fictitious 4 CDCR number AK0580.” 5 Plaintiff attaches the same October 31, 2016 CDCR Inmate Statement 6 Report that the Defendants filed in the Central District Settlement Cases. 7 (Compl. at 6.) That statement shows the three deductions for restitution 8 payments in the combined amount of $1360.14 ($1000 + $285.92 + $74.22). (Id.) 9 However, Plaintiff subsequently objected to these deductions, and this court 10 referred the dispute to the prisoner settlement program. (Dkt. Nos. 128-129, CV 11 13-4376.) 12 The January 10, 2017 CDCR Inmate Statement Report attached to 13 Plaintiff’s First Amended Complaint in the Bisset case indicates that, as of 14 November 8, 2016, the deductions for restitution payments were reversed and 15 those amounts reinstated. Plaintiff’s inmate trust account had a balance of 16 $1393.58 as of November 8, 2016. (Exhibit 1 to this Order.) 17 For this reason, it appears that Plaintiff’s complaint that California retained 18 the restitution amounts is now moot because that money was returned to 19 Plaintiff’s inmate trust account as of November 8, 2016 and there is no relief that 20 this court can provide. 21 IV. 22 ORDER 23 For the foregoing reasons, IT IS ORDERED THAT Plaintiff shall show 24 cause in writing, by no later than April 20, 2020, why the court should not 25 recommend that the complaint be dismissed and that Plaintiff’s request to 26 proceed without prepayment of fees be denied. 27 Plaintiff may file a First Amended Complaint that cures the deficiencies 28 identified in this order. If Plaintiff chooses to file a First Amended Complaint, it 1 must be filed no later than April 20, 2020; bear the docket number assigned in 2 this case; be labeled "First Amended Complaint"; and be complete in and of itself, 3 without reference to the original complaint, or any other pleading, attachment or 4 document in any other case. Plaintiff is free to attach additional pages to the 5 form. The filing of a First Amended Complaint will discharge this order to show 6 cause. T The Clerk is directed to (a) provide Plaintiff with a blank Central District civil 8 rights complaint form and (b) attach a copy of the January 10, 2017 CDCR 9 Inmate Statement Report to this Order as Exhibit 1 The Clerk is further directed 10 to send Plaintiff a complete copy of the First Amended Complaint in the Bisset 11 case that attached the January 10, 2017 CDCR Inmate Statement Report. 12 If Plaintiff fails to file a response to this order to show cause or a First 13 Amended Complaint on or before April 20, 2020, this court may recommend that 14 the complaint be dismissed and Plaintiff's request to proceed without prepayment of fees be denied. 16 17 DATED: March 19, 2020 18 Wear A k reandierge 19 United States Magistrate Jord 20 21 22 23 24 25 26 27 28