Benyamini v. Hommer

• Decision Date: 18 January 2013
• Docket Number: No. 2:11-cv-2317 KJM AC P,2:11-cv-2317 KJM AC P
• Parties: ROBERT BENYAMINI, Plaintiff, v. M.C. HOMMER, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

ROBERT BENYAMINI, Plaintiff,
v.
M.C. HOMMER, et al., Defendants.

No. 2:11-cv-2317 KJM AC P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: January 18, 2013

ORDER

Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983 together with a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Also before the court is plaintiff's motion for an investigation and for stay of proceedings (ECF No. 19).

For the reasons set forth below, the court will dismiss the complaint with leave to amend, and deny plaintiff's motion for an investigation and for a stay.

MOTION TO PROCEED IN FORMA PAUPERIS

On September 21, 2012, the district judge granted plaintiff's motion to proceed in forma pauperis. See ECF No. 21. While plaintiff was incarcerated when this action was filed (see ECF No. 1), he has since been released. See ECF No. 19. As plaintiff is no longer a

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"prisoner," as that term is defined in 28 U.S.C. § 1915(h), the court is not required to assess an initial filing fee, and to collect the full amount of the filing fee, as directed in 28 U.S.C. § 1915(b). See Alexander v. Carson Adult High School, 9 F.3d 1448, 1449 (9th Cir. 1993) (district courts enjoy wide discretion in deciding whether a partial fee is fair and appropriate in a particular case). Instead, plaintiff has now been granted permission to proceed in forma pauperis, and may proceed without prepayment of fees or security therefore, as authorized under 28 U.S.C. § 1915(a)(1).

SCREENING THE COMPLAINT

The determination that a plaintiff may proceed in forma pauperis does not complete the required inquiry. The court is also required to screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue, the action is frivolous or malicious, the complaint fails to state a claim on which relief may be granted, or the action seeks monetary relief against an immune defendant.

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous if that claim is based on an indisputably meritless legal theory or if the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pled, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.

In assessing whether a plaintiff's complaint fails to state a claim on which relief can be granted, the court adheres to the "notice pleading" standards. See, e.g., Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). The notice pleading standards are codified, in part, in Federal Rule of Civil Procedure 8(a), which provides:

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(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

Additionally, a complaint should be dismissed for failure to state a claim if it does not "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See, e.g., Lopez, 203 F.3d at 1130-31; see also Hebbe v. Pliler, 627 F.3d 338, 342 & n. 7 (9th Cir. 2010) (stating that courts continue to construe pro se filings liberally even when evaluating them under the standard announced in Iqbal).

Finally, a federal court has an independent duty to assess whether federal subject

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matter jurisdiction exists, whether or not the parties raise the issue. See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that "the district court had a duty to establish subject matter jurisdiction over the removed action sua sponte, whether the parties raised the issue or not"); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996). Federal district courts are courts of limited jurisdiction that "may not grant relief absent a constitutional or valid statutory grant of jurisdiction," and "[a] federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (citations and quotation marks omitted). The court must sua sponte dismiss a case for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action."); see also Scholastic Entmt., Inc. v. Fox Entmt. Group, Inc., 336 F.3d 982, 989 (9th Cir. 2003).

Summary of the Complaint

Plaintiff's allegations, in their entirety, are that:

[f]rom the period of 7-31-07 through 9-2-07 I was locked up against my free will in administrative segregation for my own safety as informants stated they where [sic] going to retaliate against me for "putting my hands on my celly." I indured [sic] a number of harrassments from all staff in Ad/Seg. Every 602 I sent was purposely [sic] screened out by a CCII "O" Brian whome [sic] is now LT. "O" Brian who me had waterboardd [sic], beaten me and accused me of trying to break his leg back in 2005 at C.M.F.-Vacaville when he was a correctional officer not an LT. This making the LT. "O" Brian accessory to institutional sadistic and malicious cowardly, hypocratic [sic] torture punishable by 15 to life in prison. At Committee Captn Doe was residing, Srgt. Doe was residing, LT. Doe was residing, and I begged repeatedly that I was getting any yard at all and am losing my mind, I am claustrophobic, "have disability and need to shave," which only takes place at yard" they told me that they were having cages built and I cannot get yard's with others, because of security reasons. I begged and begged. I also begged the facility Lt. Doe and the Ag/Seg Srgt. Does 1, 2, 3 every opportunity I seen them and had sent 602 appeals over and over with no result "nowingly [sic] and deliberately denying me yard. I also sent requests to them all telling them what was going on and no change. I aske [sic] CO. Does 1, 2, 3 every opportunity I got for some yard time and asked when will it be my turn since I seen other people going out to yard an I in a 30+ day period got a single 1 hr. yard time [illegible] the excuse that they didn't have the [illegible] cages built. I feel

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this was more than the cages not being built including by C.O. MC. Hommer and due to the wars in the middle east and my middle eastern roots. Clearly I was prejudiced by all LT. John Doe 2, Captain Doe, Srgt. Does 1, 2, 3 and LT. "O"Brian at time appeals coordinator, warden at time J. Walker, C.O. M.C. Hammer. I begged in every fashion was and form and received only one hour of yard time when was as other inmates to get at least 10 hours a single week.

ECF No. 1 at 11-12.

Analysis

The complaint will be dismissed with leave to amend.

Some of Plaintiff's Claims are Barred by the Statute of Limitations

Actions brought pursuant to 42 U.S.C. § 1983 are governed by the state statutes of limitations for personal injury actions. Morales v. City of Los Angeles, 214 F.3d 1151, 1154 (9th Cir. 2000) (citing Wilson v. Garcia, 471 U.S. 261, 275 (1985)); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999), cert. denied, 529 U.S. 1117 (2000). In California, there is a two-year statute of limitations in § 1983 cases. See Cal. Code Civ. Proc.§ 335.1; Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004), cert. denied, 544 U.S. 968 (2005); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004), cert. denied, 546 U.S. 820 (2005) ("[f]or actions under 42 U.S.C. § 1983, courts apply the forum state's statute of limitations for personal...