Salmen v. Terronez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUSTIN SALMEN, Case No.: 23-CV-2054 JLS (AHG) CDCR #BK-5581, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING MOTION FOR 14 RELIEF FROM LOCAL RULE L. TERRONEZ, Correctional Officer; 15 GENERAL ORDER NO. 653A; BLANDING, Correctional Counselor,

16 Defendant. (2) GRANTING MOTION TO 17 PROCEED IN FORMA PAUPERIS;

18 (3) DISMISSING CLAIMS AGAINST 19 DEFENDANT BLANDING; AND

20 (4) DIRECTING U.S. MARSHAL TO 21 EFFECT SERVICE OF COMPLAINT AND SUMMONS ON DEFENDANT 22 TERRONEZ PURSUANT TO 23 28 U.S.C. § 1915(d) & Fed. R. Civ. P. 4(c)(3) 24

25 (ECF Nos. 6, 7, 8)

26 Plaintiff Justin Salmen, a state prisoner proceeding pro se, has filed a civil rights 27 Complaint (“Compl.,” ECF No. 7) pursuant to 42 U.S.C. § 1983. Plaintiff has not paid the 28 1 civil filing fee but has instead filed a Motion to Proceed In Forma Pauperis (“IFP Mot.,” 2 ECF No. 6). Plaintiff has also filed a “Motion for Relief from Local Rule General Order 3 No. 653A” (“Mot. for Relief,” ECF No. 8). For good cause shown, the Court GRANTS 4 Plaintiff’s Motion for Relief. 5 I. Motion to Proceed IFP 6 All parties instituting any civil action, suit or proceeding in a district court of the 7 United States, except an application for writ of habeas corpus, must pay a filing fee of 8 $405.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 9 prepay the entire fee only if they are granted leave to proceed in forma pauperis (“IFP”) 10 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 11 2007) (“28 U.S.C. § 1915(a) allows the district court to waive the fee, for most individuals 12 unable to afford it, by granting IFP status.”) 13 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 14 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 15 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 16 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 17 trust account statement, the Court assesses an initial payment of 20% of (a) the average 18 monthly deposits in the account for the past six months, or (b) the average monthly balance 19 in the account for the past six months, whichever is greater, unless the prisoner has no 20 assets. See 28 U.S.C. § 1915(b)(1), (b)(4). The institution collects subsequent payments, 21 assessed at 20% of the preceding month’s income, in any month in which the account 22 exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. 23 See 28 U.S.C. § 1915(b)(2). Plaintiff remains obligated to pay the entire fee in monthly 24 installments regardless of whether the action is ultimately dismissed. Bruce v. Samuels, 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does not apply to persons granted leave to proceed 28 1 577 U.S. 82, 84 (2016). 2 In support of his IFP Motion, Plaintiff has submitted a copy of his California 3 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report. The 4 Report indicates that during the six months prior to filing suit, Plaintiff had an average 5 monthly balance of $36.41, average monthly deposits of $32.50, and an available balance 6 of $3.70 in his account at the time he filed suit. ECF No. 5 at 1. The Court GRANTS 7 Plaintiff’s Motion to Proceed IFP and declines to impose the $7.28 initial partial filing fee 8 pursuant to 28 U.S.C. § 1915(b)(1) because the prison certificate indicates Plaintiff may 9 have no means to pay it. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a 10 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 11 judgment for the reason that the prisoner has no assets and no means by which to pay the 12 initial partial filing fee”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding 13 that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s 14 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when 15 payment is ordered”). Plaintiff remains obligated to pay the entire fee in monthly 16 installments. 17 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 18 A. Standard of Review 19 Because Plaintiff is a prisoner proceeding IFP, the Complaint requires a pre-Answer 20 screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The Court must sua sponte 21 dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails 22 to state a claim, or seeks damages from defendants who are immune. Lopez v. Smith, 23 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); 24 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 25 § 1915A(b)). 26 “The standard for determining whether a plaintiff has failed to state a claim upon 27 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 28 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 1 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 2 (9th Cir. 2012) (noting that § 1915A screening “incorporates the familiar standard applied 3 in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). 4 Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, 5 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 6 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining 7 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 8 requires the reviewing court to draw on its judicial experience and common sense.” Id. 9 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 10 acting under color of state law, violate federal constitutional or statutory rights.” 11 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, 12 a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws 13 of the United States, and (2) that the deprivation was committed by a person acting under 14 color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 15 B. Allegations in the Complaint 16 Plaintiff alleges that on May 24, 2023, Defendant RJD Correctional Officer Terronez 17 “began spreading false rumors to the inmates on Alpha Yard” by claiming Plaintiff was a 18 “snitch” and “child molester.” Compl. at 3. Later, Plaintiff was “ordered by prison gang 19 members to produce proof of [his] criminal charges.” Id. Plaintiff was then “knocked 20 unconscious by a strike to [his] face” by an inmate who entered his cell causing “head 21 trauma, laceration, bleeding and bruising to the upper left side of [his] face/head.” Id. 22 Plaintiff filed an “emergency grievance” regarding the actions of Terronez with the 23 “appeals coordinator officer.” Id. at 4. However, Plaintiff alleges Defendant RJD 24 Correctional Counselor Blanding “did not process [his] grievance within the emergency 25 timeframe.” Id. 26 Plaintiff seeks $8,500,000 in compensatory damages. See id. at 7. 27 C. Discussion 28 The Eighth Amendment prohibits the imposition of cruel and unusual punishments. 1 Estelle v. Gamble, 429 U.S. 97, 102 (1976). To that end, prison officials are required to 2 take “reasonable measures to guarantee the safety” of inmates. Farmer v. Brennan, 3 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)). 4 An Eighth Amendment claim against a prison official must meet two requirements, 5 one subjective and one objective. Farmer, 511 U.S. at 834, 837. First, the deprivation 6 alleged must be, objectively, “sufficiently serious.” Id. at 834. When a claim is based on 7 based on a failure to prevent harm, this means “the inmate must show that he is incarcerated 8 under conditions posing a substantial risk of serious harm.” Id. Second, under the 9 subjective requirement, the inmate must show the prison official acted with “deliberate 10 indifference” to his safety. Id. at 837. This requires a showing the defendant acted with a 11 “sufficiently culpable state of mind.” Id. “[I]t is not enough that the official objectively 12 should have recognized the danger but failed to do so.” Jeffers v. Gomez, 267 F.3d 895, 13 914 (9th Cir. 2001) (citing Farmer, 511 U.S. at 838). “[T]he official must both be aware 14 of facts from which the inference could be drawn that a substantial risk of harm exists, and 15 he must also draw the inference.” Farmer, 511 U.S. at 837. Thus, even if a prison official 16 “should have been aware of the risk,” but they were not, “then the official has not violated 17 the Eighth Amendment, no matter how severe the risk.” Id. at 834. 18 Based on the allegations in the Complaint, the Court finds Plaintiff’s allegations are 19 sufficient to survive the “low threshold” of the screening required by 28 U.S.C. 20 §§ 1915(e)(2) & 1915A(b) with respect to an Eighth Amendment claim against Defendant 21 Terronez. See Valandingham v. Bojorquez, 866 F.2d 1135, 1139 (9th Cir. 1989) (finding 22 allegations that a prison official called an inmate a “snitch” in the presence of other inmates 23 sufficient to state a claim of deliberate indifference to an inmate’s safety); Puckett v. 24 Arreguin, No. 1:10-CV-00971-MJS PC, 2012 WL 1119460, at *3 (E.D. Cal. Apr. 3, 2012) 25 (“[B]eing labeled a ‘pedophile,’ ‘rapist,’ or ‘child molester’ is at least as dangerous in 26 prison as being called a snitch.”). 27 Accordingly, Plaintiff is entitled to have the U.S. Marshal effect service of the 28 summons and Complaint against Defendant Terronez. See 28 U.S.C. § 1915(d) (“The 1 officers of the court shall issue and serve all process, and perform all duties in [IFP] 2 cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United 3 States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in forma 4 pauperis under 28 U.S.C. § 1915.”). Nevertheless, the Court cautions Plaintiff that the sua 5 sponte screening process is “cumulative of, not a substitute for, any subsequent [motion to 6 dismiss] that the defendant[s] may choose to bring.” Teahan v. Wilhelm, 7 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 8 However, the Court finds that Plaintiff has failed to state a claim against Defendant 9 Blanding. A prison official’s allegedly improper processing of an inmate’s grievances or 10 appeals, without more, cannot serve as a basis for § 1983 liability. See generally Ramirez 11 v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (stating that prisoners do not have a “separate 12 constitutional entitlement to a specific prison grievance procedure”); Mann v. Adams, 13 855 F.2d 639, 640 (9th Cir. 1988) (concluding that due process is not violated simply 14 because defendant fails properly to process grievances submitted for consideration); 15 Shallowhorn v. Molina, 572 Fed. App’x 545, 547 (9th Cir. 2014) (finding that a district 16 court properly dismissed § 1983 claims against defendants who “were only involved in the 17 appeals process” (citing Ramirez, 334 F.3d at 860)). 18 Accordingly, the Court DISMISSES all claims against Defendant Blanding for 19 failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. 20 §§ 1915(e)(2) & 1915A(b). 21 III. Conclusion and Orders 22 Accordingly, good cause appearing, the Court: 23 1) GRANTS Plaintiff’s Motion for Relief from Local Rule General Order 24 No. 653A (ECF No. 8); 25 2) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 6); 26 3) DIRECTS the Secretary of the CDCR, or his designee, to collect from 27 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 28 payments from Plaintiff’s account in an amount equal to twenty percent (20%) of the 1 preceding month’s income and forwarding those payments to the Clerk of the Court each 2 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2); 3 4) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 4 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation, 5 P.O. Box 942883, Sacramento, California, 94283-0001; 6 5) DISMISSES all claims against Defendant Blanding for failing to state a claim 7 pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) and DIRECTS the Clerk of Court to 8 terminate this Defendant from the docket; 9 6) DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 10 No. 7) for Defendant Terronez and forward it to Plaintiff along with a blank U.S. Marshal 11 Form 285. The Clerk will PROVIDE Plaintiff with certified copies of the Complaint and 12 summons for use in serving Defendant. Upon receipt of this “In Forma Pauperis Package,” 13 Plaintiff MUST COMPLETE the USM Form 285 as completely and accurately as 14 possible, include an address where Defendant may be found and/or subject to service 15 pursuant to S.D. Cal. CivLR 4.1(c), and RETURN the forms to the United States Marshal 16 according to the instructions the Clerk provides in the letter accompanying the In Forma 17 Pauperis Package. 18 7) ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 19 upon Defendant Terronez as directed by Plaintiff on the USM Form 285. Costs of service 20 will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 21 8) ORDERS Defendant, once served, to reply to Plaintiff’s Complaint and any 22 subsequent pleading Plaintiff files in this matter in which Defendant is named as a party 23 within the time provided by the applicable provisions of Federal Rules of Civil Procedure 24 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be 25 permitted to “waive the right to reply to any action brought by a prisoner confined in any 26 jail, prison, or other correctional facility under section 1983,” once the Court has conducted 27 its sua sponte screening Defendants are required to respond). 28 9) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 1 |/serve upon Defendant, or if appearance has been entered by counsel, upon Defendant’s 2 ||counsel, a copy of every further pleading, motion, or other document submitted for the 3 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include, with every 4 |/original document sought to be filed with the Clerk, a certificate stating the manner in 5 || which a true and correct copy of that document has been served on Defendant or their 6 || counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document received by 7 ||the Court which has not been properly filed with the Clerk or which fails to include a 8 || certificate of service upon a Defendant, or their counsel, may be disregarded. 9 IT IS SO ORDERED. 10 ||Dated: December 5, 2023 tt 11 pee Janis L. Sammartino D United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8