Kane v. R.J. Donovan State Prison

• Decision Date: 21 December 2017
• Docket Number: Case No.: 3:17-cv-02237-MMA-AGS
• Parties: JEFFREY ELIAS KANE, CDCR #AX-3761, Booking #17161895, Plaintiff, v. R.J. DONOVAN STATE PRISON, Defendant.
• Court: U.S. District Court — Southern District of California

JEFFREY ELIAS KANE, CDCR #AX-3761,Booking #17161895, Plaintiff, v. R.J. DONOVAN STATE PRISON, Defendant.

Case No.: 3:17-cv-02237-MMA-AGS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

December 21, 2017

ORDER:

1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS

[Doc. No. 2]

AND

2) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM AND AS FRIVOLOUS PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b)

JEFFREY ELIAS KANE ("Plaintiff"), a former state prisoner, now detained at the San Diego Sheriff's Department's North County Regional Facility in Vista, California ("VDF"), and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (Doc. No. 1).

Plaintiff's Complaint names R.J. Donovan State Prison as the sole Defendant, and it contains no factual allegations or constitutional basis for relief. Instead, Plaintiff simply requests $12 million in general and punitive damages and refers to another civil action he previously filed: Kane v. RJ Donovan State Prison, et al., S.D. Cal. Civil Case No. 3:16-cv-00010-BEN-JLB. See Compl., Doc. No. 1 at 1-3.

Plaintiff has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2).

I. Motion to Proceed IFP

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 $400.¹ 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 granted leave to proceed IFP remains obligated to pay the entire fee in "increments" or "installments," Bruce v. Samuels, ___ U.S. ___, 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. 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 prisonerhas 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, 136 S. Ct. at 629.

In support of his Motion to Proceed IFP, Plaintiff has submitted a copy of his Sheriff's Department trust account activity statement, together with a prison certificate completed by the Facility Commander at VDF attesting to his account activity. See Doc. No. 2 at 4-5; see also 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These statements show Plaintiff has carried a $.01 average monthly balance, had an average monthly deposit of only $5 to his account over the 6-month period immediately preceding the filing of his Complaint, and an available balance of only $.06 on the books at the time of filing. See Doc. No. 2 at 4, 5.

Based on this accounting, no initial partial filing fee is assessed. 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."); 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 Court GRANTS Plaintiff's Motion to Proceed IFP (Doc. No. 2), declines to exact an initial filing fee because his trust account statement indicates he has "no means to pay it," Bruce, 136 S. Ct. at 629, and directs the VDF Facility Commander, or his designee, to instead 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).

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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 pre-answer screening 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 of it, 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 § 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 (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, 556 U.S. 662, 678 (2009); 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. Id.; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

B. Discussion

As noted above, Plaintiff's Complaint contains no factual allegations and he cites no constitutional basis for relief whatsoever. While he has invoked federal jurisdiction by using the Court's form 42 U.S.C. § 1983 Complaint, and names RJ Donovan State Prison as the sole Defendant in its caption, his pleading merely refers to a previously filed case, the facts and allegations from which the Court presumes he wishes to incorporate into this civil action by reference. See Compl., Doc. No. 1 at 1; FED. R. CIV. P. 10(c) ("A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading of motion.").

Except where separate cases have been "consolidated ... for pretrial purposes," and thus "share the same docket sheet and file under the same case number," see e.g., Glob. Oil Tools, Inc. v. Barnhill, No. CIV.A. 12-3041, 2013 WL 3070838, at *9 (E.D. La. June 17, 2013)), or where an indigent pro se litigant requests original exhibits submitted in support of one civil action be incorporated by reference to another related case due to his lack of access to a photocopier, see Weatherspoon v. Dinsa, No. 14-CV-12756, 2015 WL 5634448, at *7 (E.D. Mich. Sept. 25, 2015), courts typically hold that Rule 10(c) does not allow a party to adopt by reference pleadings from a wholly separate action, even if that action is between the same parties. See Amini Innovation Corp. v. McFerran Home Furnishings, Inc., 301 F.R.D. 487, 492 (C.D. Cal. 2014) (citing Tex. Water Supply Corp. v. R.F.C., 204 F.2d 190, 196-97 (5th Cir. 1953) ("Rule 10(c) ... permits references to pleadings and exhibits in the same case, but there is no rule permitting the adoption of a cross-claim in a separate action in a different court by mere reference."); Aronson v. Advanced Cell Tech., Inc., 972 F. Supp. 2d 123, 136 (D. Mass. 2013) (quoting Constellation Energy Commodities Grp. Inc. v. Transfield ER Cape Ltd., 801 F. Supp. 2d 211, 223 (S.D.N.Y. 2011)); Davis v. Bifani, Civil Action No. 07-cv-00122-MEH-BNB, 2007 WL 1216518, at *1 (D. Colo. Apr. 24, 2007) ("[T]he Court does not believe that it is proper to incorporate by reference wholesale the allegations in a complaint in a completely separate action, even if that action is between the same parties.")).

This Court agrees and finds that FED. R. CIV. P. 10(c) does not permit the adoption by reference of factual allegations and legal claims Plaintiff previously raised in Kane v. RJ Donovan State Prison, et al., S.D. Cal. Civil Case No. 3:16-cv-00010-BEN-JLB, as a valid means of supplanting FED. R. CIV. P. 8(a)(3) and its requirement that Plaintiff's current Complaint, by itself and without reference to any other civil action he filed in the past, contain a "short and plain statement of the claim showing that [he] is...