Opinion
Civil No. 05-1557 JAH (WMc).
March 6, 2006
Plaintiff, Aaron Johnson, a state prisoner currently incarcerated at Centinela State Prison ("Centinela") and proceeding pro se, has filed a civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff has not prepaid the $250 filing fee mandated 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. 4].
I. Motion to Proceed IFP [Doc. No. 4]
Effective February 7, 2005, 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 $250. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to proceed IFP remain obligated to pay the entire fee in installments, 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, as amended by the Prison Litigation Reform Act (" PLRA"), further requires that each prisoner seeking leave to proceed IFP submit a "certified copy of [his] trust fund account statement (or institutional equivalent) . . . for the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2). Using these certified trust account statements, the Court must assess an initial payment of 20% of (a) the average monthly deposit, or (b) the average monthly balance in the account for the past six months, whichever is greater, and collect that amount as the prisoner's initial partial filing fee, unless he has no current assets with which to pay. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4); Taylor, 281 F.3d at 850. Thereafter, the institution having custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any month in which his account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Taylor, 281 F.3d at 847.
The Court finds that Plaintiff has submitted an affidavit that complies with 28 U.S.C. § 1915(a)(1) [Doc. No. 4] as well as a certified copy of his prison trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3.2. Plaintiff's trust account statement shows an average monthly deposit of zero for the 6-month period immediately preceding the filing of his Complaint.
Accordingly, the Court hereby GRANTS Plaintiff's Motion to Proceed IFP [Doc. No. 4], and assesses no initial partial filing fee at this time. See 28 U.S.C. § 1915(b)(1) (court shall assess initial partial filing fee only "when funds exist"); 28 U.S.C. § 1915(b)(4) ("In no event shall a prisoner be prohibited from bringing a civil action . . . 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."). However, Plaintiff is required to pay the full $250 filing fee mandated by 28 U.S.C. §§ 1914(a) and 1915(b)(1), by subjecting any future funds credited to his prison trust account to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(2).
II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A
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." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).
The fact that Plaintiff has been granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a) only permits him to commence this action without full prepayment of the $250 civil filing fee mandated by 28 U.S.C. § 1914(a). Plaintiff's obligation to pay the entire $250 fee pursuant to the installment provisions of 28 U.S.C. § 1915(b) is unaffected by dismissal. See, e.g., Williams v. Roberts, 116 F.3d 1126, 1127 (5th Cir. 1997) ("plain language of the PLRA holds that . . . fees be assessed at the moment [of filing], regardless of whether the appeal [or complaint] is later dismissed"); McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997) ("The dismissal of a complaint under § 1915(c)(2) or § 1915A does not negate a prisoner's obligation to pay the filing fee in accordance with § 1915(b)(1)(2)"); accord In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997); Thurman v. Gramley, 97 F.3d 185, 187 (7th Cir. 1996).
Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 324 (1989). However 28 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing an IFP or prisoner's suit make and rule on its own motion to dismiss before effecting service of the Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing 28 U.S.C. § 1915A).
"[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." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's duty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).
A. Constitutional Claims
Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, Or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).
1. Personal Liability Causation
As an initial matter, the Court finds that while Plaintiff names three Defendants in this matter, he fails to specify what these Defendants did to violate Plaintiff's constitutional rights.
However, a person may be said to deprive another "of a constitutional right, within the meaning of section 1983, [only] if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). "Causation is, of course, a required element of a § 1983 claim." Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). "The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986). Section 1983 provides for relief only against those who, through their personal involvement as evidenced by affirmative acts, participation in another's affirmative acts, or failure to perform legally required duties, cause the deprivation of Plaintiff's constitutionally protected rights. Johnson, 588 F.2d at 743.
Thus, to the extent that Plaintiff wishes to state any constitutional claim against any of the individual persons, he must amend his pleading to allege facts which explain what each of these individuals did, or failed to do, and why he believes those acts or omissions amounted to a violation of the specific constitutional rights discussed below. Id.; see also Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) ("In order for a person acting under color of state law to be liable under § 1983, there must be a showing of personal participation in the alleged rights deprivation.").
2. Conspiracy Claims
In his Complaint, Plaintiff alleges that Defendants conspired against him in various ways. See Compl. at 2. Plaintiff claims Defendant Houston "conspired with other staff in failing to train staff on policy and procedure when conducting cell extraction." Id. Defendants "John and Jane Does" are alleged to have conspired with one another in "failing to treat plaintiff after suffering extreme pain after being exposed to O.C. pepper spray." Id. Finally, Defendant Hall is alleged to have conspired with the Department of Corrections in failing to investigate Plaintiff's allegations. Id.
In order to allege a claim of conspiracy under § 1983, Plaintiff must allege facts with sufficient particularity to show an agreement or a meeting of the minds to violate his constitutional rights. Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998); Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989). Thus, pleading a conspiracy requires more than a conclusory allegation that Defendants conspired to deprive Plaintiff's civil rights. The Ninth Circuit applies a heightened pleading standard to conspiracy claims under Section 1983 and has held that mere conclusory allegations of conspiracy (i.e. bare allegations that a defendant "conspired" with another) are insufficient to state a claim. See Harris v. Roderick, 126 F.3d 1189, 1195 (9th Cir. 1997); Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). Rather, "[t]o state a claim for a conspiracy to violate one's constitutional rights under section 1983, the plaintiff must state specific facts to support the existence of the claimed conspiracy." Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989); see also Lee v. City of Los Angeles, 250 F.3d 668, 679 n. 6 (9th Cir. 2001) (holding that plaintiffs must allege facts which are "specific and concrete enough to enable the defendants to prepare a response, and where appropriate, a motion for summary judgment based on qualified immunity."); Buckey, 968 F.2d at 794. A plaintiff can meet the heightened pleading standard by alleging "which defendants conspired, how they conspired and how the conspiracy led to a deprivation of his constitutional rights." Harris, 126 F.3d at 1196. As currently pleaded, however, Plaintiff's conspiracy claims amount to no more than "vague and conclusory allegations of official participation in civil rights violations," therefore, they fail to state a claim. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (conclusory allegations of conspiracy insufficient to support a claim under section 1983 or 1985).
The Ninth Circuit has specifically held that conspiracy claims are subject to this heightened pleading standard since they require the plaintiff to show that the defendant agreed to join the conspiracy. See Harris, 126 F.3d at 1195; Margolis, 140 F.3d at 853; Mendocino Envt'l Ctr. v. Mendocino County, 14 F.3d 457, 459 (9th Cir. 1994) (applying identical standard to conspiracy claim in Bivens action). Although the Ninth Circuit recently eliminated the application of a heightened pleading standard to all cases where an improper motive is an element, it did not modify the requirement in regard to allegations of conspiracy. See Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).
Therefore, the Court must also sua sponte dismiss Plaintiff's conspiracy claims for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446.
3. Respondeat Superior
Plaintiff seeks to hold Defendants Giurbino and Houston liable for failing to train staff See Compl. at 2. However, there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, "[t]he inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). In order to avoid the respondeat superior bar, Plaintiff must allege personal acts by each individual Defendant which have a direct causal connection to the constitutional violation at issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). As a supervisor, a Defendant may only be held liable for the allegedly unconstitutional violations of his subordinates if Plaintiff alleges specific facts which show: (1) how or to what extent this supervisor personally participated in or directed Defendants' actions, and (2) in either acting or failing to act, the supervisor was an actual and proximate cause of the deprivation of his constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, however, Plaintiff's Complaint in no way sets forth facts which might be liberally construed to support an individualized constitutional claim against any named Defendant, specifically including Defendant Supervisors Giurbino and Houston.
Therefore, the Court must also sua sponte dismiss Plaintiff's respondeat superior claims for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446.
III. Conclusion and Order
Good cause appearing therefor, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 4] is GRANTED.
2. The Secretary of the California Department of Corrections and Rehabilitation, or his designee, shall collect from Plaintiff's prison trust account the $250 balance of the filing fee owed in this case by collecting monthly payments from the account in an amount equal to twenty percent (20%) of the preceding month's income and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
3. The Clerk of the Court is directed to serve a copy of this Order on Roderick Q. Hickman, Secretary, California Department of Corrections and Rehabilitation, Post Office Box 942883, Sacramento, California 94283-0001.
IT IS FURTHER ORDERED that:
4. Plaintiff's Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii) and (iii) and 1915A(b)(1) and (2).
5. Plaintiff is GRANTED forty five (45) days leave from the date this Order is stamped "Filed" in which to file a First Amended Complaint which cures all the deficiencies of pleading noted above. Plaintiff's Amended Complaint must be complete in itself without reference to the superseded pleading. See S.D. Cal. Civ. L.R. 15.1. Defendants not named and all claims not re-alleged in the Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
6. In the event Plaintiff's Amended Complaint fails to state a claim upon which relief may be granted, it may be dismissed without further leave to amend and may hereafter be counted as a "strike" under 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).
IT IS SO ORDERED.