Arellano v. Lamborn

• Decision Date: 22 January 2020
• Docket Number: Case No.: 3:19-cv-02360-JAH-LL
• Citation: Arellano v. Lamborn, Case No.: 3:19-cv-02360-JAH-LL (S.D. Cal. Jan 22, 2020)
• Court: U.S. District Court — Southern District of California
• Parties: RAUL ARELLANO, CDCR #AH-1995, Plaintiff, v. DAVID G. LAMBORN; HUFFMAN; LAURA W. HALGREN; BENKE; UNITED STATES POSTAL SERVICE, Defendants.

RAUL ARELLANO, CDCR #AH-1995, Plaintiff, v. DAVID G. LAMBORN; HUFFMAN; LAURA W. HALGREN; BENKE;UNITED STATES POSTAL SERVICE, Defendants.

Case No.: 3:19-cv-02360-JAH-LL

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

January 22, 2020

ORDER:

1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS

[ECF No. 2]

AND

2) DISMISSING COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION

Raul Arellano("Plaintiff"), currently incarcerated at the Richard J. Donovan Correctional Facility ("RJD") located in San Diego, California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983(ECF No. 1).Plaintiff has not paid the civil filing fee required by 28 U.S.C. § 1914(a); instead he has filed a Motion to Proceed In Forma Pauperis pursuant to 28 U.S.C. § 1915(a)(ECF No. 2).

I.Motion to Proceed In Forma Pauperis

All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400.¹See28 U.S.C. § 1914(a).The action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a).SeeAndrews v. Cervantes, 493 F.3d 1047, 1051(9th Cir.2007);Rodriguez v. Cook, 169 F.3d 1176, 1177(9th Cir.1999).However, a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in "increments" or "installments,"Bruce v. Samuels, ___ S. Ct. ___, 136 S. Ct. 627, 629(2016);Williams v. Paramo, 775 F.3d 1182, 1185(9th Cir.2015), and regardless of whether his action is ultimately dismissed.See28 U.S.C. § 1915(b)(1) & (2);Taylor v. Delatoore, 281 F.3d 844, 847(9th Cir.2002).

Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a "certified copy of the trust fund account statement (or institutional equivalent) for ... the 6-month period immediately preceding the filing of the complaint."28 U.S.C. § 1915(a)(2);Andrews v. King, 398 F.3d 1113, 1119(9th Cir.2005).From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets.See28 U.S.C. § 1915(b)(1);28 U.S.C. § 1915(b)(4).The institution having custody of the prisoner then collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which his account exceeds $10, and forwards those payments to the Court until the entire filing fee is paid.See28 U.S.C. § 1915(b)(2).

In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Prison Certificate and Inmate Statement Report recording his balances and deposits over the 6-month period preceding the filing of his Complaint.SeeECF No. 3;28 U.S.C.§ 1915(a)(2);S.D. CAL. CIVLR 3.2;Andrews, 398 F.3d at 1119.These reports show Plaintiff had a balance of only $0.05 at the time of filing.SeeECF No. 3at 1.See28 U.S.C. § 1915(b)(4)(providing that "[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.");Bruce, 136 S. Ct. at 630;Taylor, 281 F.3d at 850(finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure to pay ... due to the lack of funds available to him when payment is ordered.").

Therefore, the CourtGRANTSPlaintiff's Motion to Proceed IFP(ECF No. 2), but declines to "exact" any initial filing fee because his trust account statement shows he"has no means to pay it,"Bruce, 136 S. Ct. at 629, and directs the Secretary of the California Department of Corrections and Rehabilitation("CDCR") to collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

II.Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B)and1915A(b)

A.Standard of Review

Notwithstanding Plaintiff's IFP status or the payment of any partial filing fees, the PLRA also obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program,""as soon as practicable after docketing."See28 U.S.C. §§ 1915(e)(2)and1915A(b).Under these statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune.See28 U.S.C. §§ 1915(e)(2)(B)and1915A(b);Lopez v. Smith, 203 F.3d 1122, 1126-27(9th Cir.2000)(en banc)(§ 1915(e)(2));Rhodes v. Robinson, 621 F.3d 1002, 1004(9th Cir.2010)(discussing28 U.S.C. § 1915A(b)).

All complaints must contain "a short and plain statement of the claim showing that the pleader is entitled to relief."Fed. R. Civ. P. 8(a)(2).Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."Ashcroft v. Iqbal, 556 U.S. 662, 678(2009)(citingBell Atlantic Corp. v. Twombly, 550 U.S. 544, 555(2007))."Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense."Id.The "mere possibility of misconduct" falls short of meeting this plausibility standard.Id.;see alsoMoss v. U.S. Secret Service, 572 F.3d 962, 969(9th Cir.2009).

"When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief."Iqbal, 556 U.S. at 679;see alsoResnick v. Hayes, 213 F.3d 443, 447(9th Cir.2000)("[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff.");Barren v. Harrington, 152 F.3d 1193, 1194(9th Cir.1998)(noting that § 1915(e)(2)"parallels the language of Federal Rule of Civil Procedure 12(b)(6)").

However, while the court"ha[s] an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt,"Hebbe v. Pliler, 627 F.3d 338, 342 & n.7(9th Cir.2010)(citingBretz v. Kelman, 773 F.2d 1026, 1027 n. 1(9th Cir.1985)), it may not "supply essential elements of claims that were not initially pled."Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268(9th Cir.1982).

B.Plaintiff's Allegations

Plaintiff alleges that he submitted his "habeas corpus on 6-19-2014" and the "court denied some grounds on the merits but didn't deny 60 grounds of [ineffective assistance of counsel("IAC")] on merits.(Compl. at 4.)The Court informed Plaintiff that they"couldn't hear the claims because [he] failed to submit the trial transcripts."(Id.)Plaintiff alleges it took him "several years" to obtain his transcripts.(Id.)Plaintiffsubmitted the transcripts so the "superior court[could] hear merits of IAC."(Id.)However, Plaintiff claims the trial court erred when they claimed that they had already rendered a decision regarding Plaintiff's IAC claims on the merits.(Seeid.)As a result, Plaintiff alleges that neither the state appellate courts or the federal courts would consider these claims.(Seeid.)

Plaintiff"would like [this] Court to order [the state court] to hear my IAC grounds on merits because [he] cure[d] the defects."(Id.)In addition, Plaintiff argues that his "actual innocence" claim should also be heard on the merits.(Id. at 5.)

Plaintiff claims that "Judges from superior and appeal state courts" denied him access to his trial transcripts that he had been requesting "from 2015 - August 2016."(Id. at 6.)Plaintiff alleges his trial transcripts were "destroyed on September 21, 2014 by a prison state employee."(Id.)In 2017, Plaintiff"end[ed] up getting the transcripts through other sources."(Id.)Plaintiff seeks relief in the form of a "ruling determining if state courts did violate [his] rights when"they purportedly failed to provide him with his trial transcripts.(Id.)

On August 23, 2018, Plaintiff mailed his "notice of appeal" and his "opening brief" to the Ninth Circuit Court of Appeals through the prison mailroom.(Id. at 7.)He received a United States Postal Service ("USPS")"tracking number" indicating that the documents had been mailed.(Id.)However, Plaintiff claims that the Ninth Circuit did not receive these documents and the USPS has "no history of what happen[ed] to those 3 manila envelopes."(Id.)Thus, Plaintiff's matter was "dismissed" by the Ninth Circuit on the grounds they never received either his notice of appeal or his opening brief.(Id.)As a result, Plaintiff claims that his "chance to have gotten release[ed] from prison for facts of innocence is gone."(Id.)Plaintiff seeks "monetary compensation" against the USPS.(Id.)

C. 42 U.S.C. § 1983

"Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights."Devereaux v. Abbey,263 F.3d 1070, 1074(9th Cir.2001).Section 1983"is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred."Graham v. Connor, 490 U.S. 386, 393-94(1989)(internal quotation marks and citations omitted)."To establish §...