Arrant v. Zambrano

MELVIN RAY ARRANT, CDCR #K98602, Plaintiff, v. M. ZAMBRANO, HAYES, DELLINGER, ASFOUR, S. BEYER, Defendants.

Case No.: 3:20-cv-01220 JLS-AGS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

September 9, 2020

ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) & 28 U.S.C. § 1915A(b); AND (3) DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

(ECF Nos. 2, 3)

Plaintiff Melvin Ray Arrant, currently incarcerated at Richard J. Donovan State Prison ("RJD") located in San Diego, California, and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a), but he did file a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2.) Plaintiff has also filed a Motion for a Temporary Restraining Order ("TRO"). (See ECF No. 3.)

I. Motion to Proceed In Forma Pauperis

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). However, prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in "increments" or "installments," Bruce v. Samuels, 136 S. Ct. 627, 629 (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) also 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, 136 S. Ct. at 629.

/// In support of his IFP Motion, Plaintiff has submitted a copy of his California Department of Corrections and Rehabilitation ("CDCR") Inmate Statement Report as well as a Prison Certificate completed by an RJD accounting officer. See ECF Nos. 2 at 4-6; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These statements show that Plaintiff has carried an average monthly balance of $0.00, had $0.00 in average monthly deposits to his account over the 6-month period immediately preceding the filing of his Complaint, and had an available balance of $0.00 on the books at the time of filing. (See ECF No. 2 at 4-6.) Based on this accounting, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 3) and will not assess an initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). The remaining balance of the $350 total fee owed in this case must be collected by the agency having custody of the prisoner and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).

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

A. Legal Standard

Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also 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) (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 (9th Cir. 2012) (noting that screening pursuant to § 1915A "incorporates the familiar standardapplied 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 "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.

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 Service, 572 F.3d 962, 969 (9th Cir. 2009).

B. Plaintiff's Factual Allegations²

Plaintiff alleges that he has been requesting a bed or cell move since December of 2019. (Compl. at 4.) Each time, Plaintiff was told he had to wait until a weekend "because that is when convenient bed moves are done." Id. Plaintiff claims that he observed other inmates, who he claims are gay, bisexual, or are informants, have their requests for bed moves granted while his request has been ignored. Id. Plaintiff, believing he was being discriminated against, filed a CDCR form 22 on February 26, 2020. Id. In response, Defendant Zambrano told Plaintiff he "had to fill out unnecessary outdated paperwork" in order to receive a bed move, while at the same time moving another inmate from one cell to another without such paperwork." Id. Plaintiff then filed a CDCR form 602. Id. When Defendant Zambrano became aware of this, he told Plaintiff that "a 602 ain't shit," and that "legal [beagles] ain't got nothing coming." Id. Zambrano also told Plaintiff that he wasn't the only one who knew how to write. Id. Zambrano then "generated a falsified RVR [rulesviolation report] against Plaintiff, accusing him of disrespecting staff by calling Zambrano 'Mark.'" Id. When the RVR was dismissed, Plaintiff filed another 602 alleging Zambrano retaliated against him and that he was prevented from presenting evidence which would have established his innocence. Id.

Plaintiff also alleges that on December 28, 2019, he saw a medical staff member, Defendant Dellinger, cough on his hands, rub his nose, and then pass out medication to inmates without changing his gloves. Id. at 5. When it was Plaintiff's turn to receive medication from Defendant Dellinger, Plaintiff told Dellinger he had seen him dispensing medication after coughing on his hands and rubbing his nose. Id. Plaintiff asked Dellinger to dispense his medication directly from the medication dispenser into a cup so that Dellinger would not touch it with his hands. Id. Dellinger "became upset," and told Plaintiff "you don't get special treatment." Id. When Plaintiff asked for a correct spelling of Dellinger's name in order to submit a 602, Defendant Hayes told Plaintiff they would not give him their names. Id. They then threatened to activate the building alarm "in retaliation." Id. When Plaintiff eventually did file a 602 regarding the incident, "Supervisor Sanchez removed documents the Plaintiff submitted to her when she interviewed the Plaintiff." Id.

On March 5, 2020, Plaintiff asked Defendant Asfour, a recreational therapist, why a PlayStation 3 videogame console had been removed from his Striving to Achieve Rewards Enhanced Outpatient Program ("STAR EOP") Group List. Id. at 6. From Plaintiff's description, the "group list" appears to be a list of recreational activities that are available to STAR EOP inmates. Id. Asfour "gave a vague reason why, saying 'it was voted off.'" Id. Plaintiff pressed Asfour for a more specific reason, and Asfour told Plaintiff there was nothing he could do about it. Id. When Plaintiff asked Asfour for the names of the staff members who had voted to remove the PlayStation in order to file a 602, Asfour told Plaintiff that if he filed a 602, "the gaming system will 'never' be put back on the list." Id. Asfour also referred Plaintiff's request for the names of the staff members who recommended the removal of the PlayStation from the STAR EOP Group List to DefendantBeyer, who is Asfour's supervisor. Id. at 7. Beyer responded that she was not able to give Plaintiff the staff members' names because they were confidential. Id.

C. 42 U.S.C. § 1983

"Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights." Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 "is not itself a source of substantive rights, but merely...