Cavalier v. Newsom
| Decision Date | 11 December 2020 |
| Docket Number | Case No. 3:20cv1615-MMA-DEB |
| Parties | ROBERT THOMAS CAVALIER, CDCR #E-98747, Plaintiff, v. GAVIN NEWSOM, Governor; JOHN DOE, Director of BPH Operations; RANDY GROUNDS, BPH Commissioner; RALPH DIAZ, CDCR Secretary, Defendants. |
| Court | U.S. District Court — Southern District of California |
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS;
Plaintiff Robert Thomas Cavalier, currently incarcerated at Richard J. Donovan Correctional Facility ("RJD") and proceeding pro se, has filed this civil rights action pursuant to 42 U.S.C. § 1983. See "Compl.," Doc. No. 1 at 1. Plaintiff claims the Governor of California, the former Secretary of the California Department of Corrections and Rehabilitation ("CDCR"), the Director of the Board of Parole Hearings ("BPH"), and BPH Commissioner Randy Grounds ("Defendants") violated his Eighth and Fourteenth Amendment rights during a September 6, 2019 parole suitability hearing. Id. at 1-6. He seeks no monetary damages, but instead requests injunctive relief prohibiting the application of "Marsy's Law" to his case, a "new forensic evaluation," and "consideration for COVID-19 release." Id. at 6-7.
Plaintiff did not prepay the civil filing fees required by 28 U.S.C. § 1914(a), instead he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. Plaintiff has also submitted a Motion requesting that another civil action which he filed prematurely ("Cavalier v. Pollard") be dismissed and or withdrawn without prejudice (Doc. No. 3), a Declaration in support of his Complaint (Doc. No. 5), and an Exhibit which he asks the Court to "attach" to his Eighth Amendment claims (Doc. No. 6).1
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 $400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff's failure toprepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in "increments" or "installments," Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their action is ultimately dismissed. See 28 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. See 28 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. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 85-86.
Plaintiff's CDCR Inmate Statement Report and Prison Certificate shows that he had no money in his trust account, carried no average monthly balance, and had no deposits during the six months preceding the filing of this action. See Doc. No. 4 at 1, 3. Based on this accounting, the Court GRANTS Plaintiff's Motion to Proceed IFP (Doc. No. 2) and assesses no initial partial filing fee. See 28 U.S.C. § 1915(b)(4) (); Bruce, 577 U.S. at 86; Taylor, 281 F.3d at 850 (). The Court instead directs the Secretary of the CDCR, or her designee, 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).
Approximately two weeks before he filed this case, Plaintiff filed two separate civil rights actions in Cavalier v. Newsom, et al., S.D. Cal. Civil Case No. 3:20-cv-01398-MMA-KSC ("Newsom I"), and Cavalier v. Pollard, et al., S.D. Cal. Civil Case No. 3:20-cv-1379-DMS-AHG ("Pollard"). All three cases name mostly the same Defendants, and allege similar claims related to the validity of his September 6, 2019 parole suitability hearing. See Bias v. Moynihan, 508 F.3d 1212, 1255 (9th Cir. 2007) () (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).
Because the claims raised in Newsom I were deemed duplicative of those alleged and still pending in Pollard, Newsom I was dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b)(1) without prejudice to Plaintiff's pursuit of those claims in Pollard. See Newsom I, S.D. Cal. Civil Case No. 3:20-cv-01398-MMA-KSC, Doc. No. 4.
While Pollard still remained pending, Plaintiff filed this case, Cavalier v. Newsom, et al., S.D. Cal. Civil Case No. 3:20-01615-MMA-DEB ("Newsom II"), together with another Motion to Proceed IFP, and followed by a "Motion to Withdraw and Dismiss" Pollard. See Doc. No. 3. Plaintiff simultaneously filed an identical Motion to Withdraw in Pollard. See S.D. Cal. Civil Case No. 3:20-cv-01379-DMS-AHG (Doc. No. 6).
In Plaintiff's Motion to Withdraw and Dismiss, he admits his Complaint in Pollardwas incomplete at the time he filed it, and claims Newsom I better "articulate[d] what he is trying to explain." See Doc. No. 3 at 2-3. Plaintiff acknowledges, however, that Newsom I has already been dismissed without prejudice; therefore, he asks instead to withdraw Pollard, and to proceed with his claims as they are alleged in this case, Newsom II. Id. at 4-5.
On September 10, 2020, Judge Sabraw construed Plaintiff's Motion to Withdraw Pollard as a Notice of Voluntary Dismissal pursuant to Fed. R. Civ. P. 41(a) and dismissed that case without prejudice to pursuit of Plaintiff's claims as re-alleged and currently pending before this Court. See Pollard, S.D. Cal. Civil Case No. 3:20-cv-01379-DMS-AHG (Doc. No. 7 at 3-4). Thus, because Pollard has already been dismissed, Plaintiff's duplicate "Motion to Dismiss/Withdraw Cavalier v. Pollard" (Doc. No. 3) is hereby DENIED as moot.
Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a preliminary review pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion thereof, if it is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). "The purpose of [screening] is 'to ensure that the 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).
"The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim." Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9thCir. 2012) ( that screening pursuant to § 1915A "incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)").
Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to "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) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. And 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) (citing Bretz 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. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
"Courts must consider the complaint in its entirety," including "documents incorporated into the complaint by reference" to be part of the pleading when determining whether the plaintiff has stated a claim upon which relief may be granted. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal. Dep't of Corrs., 151 F.3d 1194,...
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