Fernandez v. Madden

• Decision Date: 04 August 2022
• Docket Number: 3:22-cv-0446-BAS-WVG
• Parties: FRANK J. FERNANDEZ, CDCR# D-61222, Plaintiff, v. R. MADDEN; E. DUARTE; J. HILL; J. SAIS; J. BONILLAS; D. LOOP; E. MATUS; A. ACUNA; J. JIMENEZ, Defendants.
• Court: U.S. District Court — Southern District of California

FRANK J. FERNANDEZ, CDCR# D-61222, Plaintiff,
v.
R. MADDEN; E. DUARTE; J. HILL; J. SAIS; J. BONILLAS; D. LOOP; E. MATUS; A. ACUNA; J. JIMENEZ, Defendants.

No. 3:22-cv-0446-BAS-WVG

United States District Court, S.D. California

August 4, 2022

ORDER:

(1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS (ECF No. 2);

(2) DENYING MOTION TO APPOINT COUNSEL (ECF No. 3);

(3) DISMISSING COUNTS 2, 3, 4 AND 5 PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) & 1915A; AND

(4) GRANTING PLAINTIFF LEAVE TO AMEND

Hon. Cynthia Bashant United States District Judge

Frank Fernandez (“Plaintiff”), currently incarcerated at Pelican Bay State Prison (“PBSP”), and proceeding pro se, has filed this civil action pursuant to 42 U.S.C. § 1983, alleging Defendants violated his constitutional rights when he was housed at Centinela State Prison (“CEN”). (See Compl. at 1, ECF No. 1.) Plaintiff seeks to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (IFP Mot., ECF No. 2) and moves for appointment of counsel (Mot. to Appoint Counsel, ECF No. 3).

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I. Motion to Proceed IFP

A party who institutes a civil action, suit, or proceeding in a district court of the United States, except for an application for writ of habeas corpus, must pay a filing fee of $402.^[1] See 28 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). See Andrews 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, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his 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 a prisoner who seeks 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), (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 the prisoner's 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).

Under 28 U.S.C. § 1915, indigency is the benchmark for whether a plaintiff qualifies for IFP status. The determination of indigency falls within the district court's sound

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discretion. Cal. Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (holding that “[s]ection 1915 typically requires the reviewing court to exercise its sound discretion in determining whether the affiant has satisfied the statute's requirement on indigency”), rev'd on other grounds, 506 U.S. 194 (1993). It is well-settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because of his poverty pay or give security for costs . . . and still be able to provide himself and the dependents with the necessities of life.” Id. at 339. However, “the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense . . . the remonstrances of a suitor who is financially able, in whole or in part, to pull his own oar.” Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984).

In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR inmate trust account statement and prison certificate. (See IFP Mot.) This statement shows that Plaintiff has had average monthly deposits of $0.42 and an average monthly balance of $3800.83 during the six months preceding filing. (See id. at 5.) At the time of filing, he had $3,303.38 on account at PBSP. (Id.) This showing suffices to establish IFP status. Cf. Thistle v. La Rose, No. 21-CV-1414-JLS (MDD), 2021 WL 4150381, at *1 (S.D. Cal. Sept. 13, 2021) (granting IFP status where plaintiff had positive monthly cashflow of approximately $850 and owned assets valued at approximately $20,000).

Therefore, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 2) and assesses an initial partial filing fee of $350 pursuant to 28 U.S.C. Section 1915(b)(1).^[2] The Court directs the Secretary of the CDCR, or their designee, to collect this initial filing fee only if sufficient funds are available in Plaintiff's account at the time this Order is executed.

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See 28 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.”); 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”).

II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A

A. Standard of Review

Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a preliminary screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must review and sua sponte dismiss an IFP complaint, and any complaint filed by a prisoner seeking redress from a governmental entity, or officer or employee of a governmental entity, which 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) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

“The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure [(“Rule”)] 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 (9th Cir. 2012) (noting 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)”). Rule 12(b)(6) requires 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,

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556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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.” Iqbal, 556 U.S. at 678. “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” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

B. Plaintiff's Allegations^[3]

This action arises out of Plaintiff's claim that several correctional officers at CEN retaliated against him for reporting the misconduct of one of their colleagues. Plaintiff alleges this group of CEN correctional officers retaliated against him by falsely accusing him of assisting with another inmate's escape attempt and by falsifying a “possession of a deadly weapon” charge against him. Plaintiff alleges he was denied due process in seeking vindication of the disciplinary charge for which he ultimately was convicted, and that he was further harmed by the purported mismanagement of inmate-grievances he filed essentially to collaterally attack that disciplinary conviction.

In June of 2019, Plaintiff was the Chairman of the “Institutional Advisory Committee” at CEN, where he was housed. (Compl. ¶ 18.) In this role, Plaintiff served as a liaison between CEN correctional staff and CEN inmates. (See id.) Following a verbal confrontation between an inmate and a correctional officer, neither of whom the Complaint names, Plaintiff met with Captain J. Sais (“Sais”) to discuss the incident. (Id. ¶ 15.) Sais decided to remove the correctional officer involved in the spat from his post, pending a “threat assessment” to determine whether the correctional officer was in danger. (Id. ¶ 17.)

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Sais asked Plaintiff, “to assist in assessing whether a continued threat [against the correctional officer] existed.” (Compl. ¶ 19.) Plaintiff reported to Sais that no such threat existed and that the “only threat” was the correctional officer himself. (Id.)

The following day, or shortly thereafter, “Unit Control” informed Plaintiff that Sais wanted to meet with him. (Compl. ¶ 20.) On his way to see Sais, Plaintiff was approached by Lieutenant E. Duarte...