Free Order Dismissing Case - District Court of California - California

Case 3:07-cv-02414-BEN-POR

Document 3

Filed 03/05/2008

Page 1 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cory Lancelin Smith ("Plaintiff"), a prisoner currently incarcerated at Kern Valley State Prison located in Delano, California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Defendant McKinney, a City of San Diego Police Officer, defamed him when Lieutenant McKinney called Plaintiff a "pimp who branded his girls like cattle" when he was being interviewed for a television show called "CrimeStoppers." (Compl. at 2-3.) Plaintiff seeks 10 million dollars in compensatory and punitive damages, along with injunctive relief. (Id. at 7.) //// Defendant LAWRENCE McKINNEY, vs.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
CORY LANCELIN SMITH, CDCR #V-75472, Plaintiff, Civil No. ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING $3.00 INITIAL PARTIAL FILING FEE, GARNISHING $347.00 BALANCE FROM PRISONER'S TRUST ACCOUNT [Doc. No. 2]; AND (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A 07-2414 BEN (POR)

K:\COMMON\EVERYONE\_EFILE-PROSE\BEN\07cv2414-grantIFP&dismiss.wpd

-1-

07cv2414

Case 3:07-cv-02414-BEN-POR

Document 3

Filed 03/05/2008

Page 2 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff has not prepaid the $350 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. 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 $350. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay only if the party 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). Prisoners granted leave to proceed IFP however, remain obligated to pay the entire fee in installments, regardless of whether the action is ultimately dismissed for any reason. See 28 U.S.C. § 1915(b)(1) & (2). The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C. § 1915(a)(1), and has further provided a certified copy of his trust account statement as required by 28 U.S.C. § 1915(a)(2) and S.D. C AL. C IVLR 3.2 [Doc. No. 4]. Plaintiff's trust account statement shows an average monthly balance of $15.00, average monthly deposits of $8.00, and a current available balance of $7.89. Based on this financial information, the Court GRANTS Plaintiff's Motion to Proceed IFP [Doc. No. 2] and assesses an initial partial filing fee of $3.00 pursuant to 28 U.S.C. § 1915(b)(1). However, the Secretary of the California Department of Corrections and Rehabilitation ("CDCR"), or his designee, shall collect this initial fee only if sufficient funds in Plaintiff's account are available at the time this Order is executed pursuant to the directions set forth below. 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 v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (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

K:\COMMON\EVERYONE\_EFILE-PROSE\BEN\07cv2414-grantIFP&dismiss.wpd

-2-

07cv2414

Case 3:07-cv-02414-BEN-POR

Document 3

Filed 03/05/2008

Page 3 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ordered."). The remaining balance shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). II. S UA S PONTE S CREENING PER 28 U.S.C. §§ 1915(e) AND 1915A A. Standard of Review

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; Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A). 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.C IV.P. 4(c)(2). See Calhoun, 254 F.3d at 845; Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997) (stating that sua sponte screening pursuant to § 1915 should occur "before service of process is made on the opposing parties"); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing 28 U.S.C. § 1915A).

K:\COMMON\EVERYONE\_EFILE-PROSE\BEN\07cv2414-grantIFP&dismiss.wpd

-3-

07cv2414

Case 3:07-cv-02414-BEN-POR

Document 3

Filed 03/05/2008

Page 4 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

"[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)"); Andrews, 398 F.3d at 1121. In addition, the Court has a duty to liberally construe a pro se's pleadings, see KarimPanahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988), which is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). B. Failure to State a Claim

As currently pleaded, it is clear that Plaintiff's Complaint fails to state a cognizable claim under 42 U.S.C. § 1983. 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; Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117, 2122 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). C. Defamation Claims

The only allegations and claims made in Plaintiff's Complaint relate to the issue of whether Defendant McKinney defamed Plaintiff when he allegedly stated that Plaintiff is a "pimp who branded his girls like cattle, burning a stamp into their flesh that says `I am the property of Shuga Shaft.'" (Compl. at 3.) The United States Supreme Court has held that injury to reputation alone does not implicate a liberty or property interest sufficient to invoke the protections of federal due process. Paul v. Davis, 424 U.S. 693, 712 (1976). The Ninth Circuit has made clear that a section 1983 claim cannot be predicated on injury to reputation alone, but must be accompanied by an allegation of an injury to a recognizable property or liberty interest in order to be cognizable, a -4-

K:\COMMON\EVERYONE\_EFILE-PROSE\BEN\07cv2414-grantIFP&dismiss.wpd

07cv2414

Case 3:07-cv-02414-BEN-POR

Document 3

Filed 03/05/2008

Page 5 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

requirement known as "defamation-plus." Cooper v. Dupnik, 924 F.2d 1520, 1532 (9th Cir. 1991). The Ninth Circuit has stated that: "there are two ways to state a cognizable § 1983 claim for defamation-plus: (1) allege that the injury to reputation was inflicted in connection with a federally protected right; or (2) allege that the injury to reputation caused the denial of a federally protected right." Herb Hallman Chevrolet v. Nash-Holmes, 169 F.3d 636, 645 (9th Cir. 1999) (citing Cooper, 924 F.3d at 1532) (emphasis in original). Here, Plaintiff has failed to allege that the injury to Plaintiff's reputation was connected with, or in any way caused, a violation of any right, or otherwise implicated any protected property or liberty interest. Accordingly, the Court finds that Plaintiff's Complaint fails to state a section 1983 claim upon which relief may be granted, and is therefore subject to dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). However, the Court will provide Plaintiff with an opportunity to amend his pleading in light of the standards set forth above. See Lopez, 203 F.3d at 1130-31. III. C ONCLUSION AND O RDER Good cause appearing, IT IS HEREBY ORDERED that: 1. Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]

is GRANTED. 2. The Secretary of the CDCR, or his designee, is ordered to collect the $3.00

initial partial filing fee assessed by this Order and forward that amount to the Clerk of Court, if those funds are available at the time this Order is executed. THE INITIAL PARTIAL FILING FEE SHALL BE CLEARLY IDENTIFIED BY THE NAM E AND NUM BER ASSIGNED TO THIS ACTION. 3. The Secretary of the CDCR, or his designee, is ordered to collect from Plaintiff's

prison trust account the balance of the filing fee owed in this case by collecting monthly payments from Plaintiff's prison trust account in an amount equal to twenty percent (20%) of the preceding month's income credited to the account 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 MONTHLY PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THAT NAME AND NUMBER ASSIGNED TO THIS ACTION. -5-

K:\COMMON\EVERYONE\_EFILE-PROSE\BEN\07cv2414-grantIFP&dismiss.wpd

07cv2414

Case 3:07-cv-02414-BEN-POR

Document 3

Filed 03/05/2008

Page 6 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

4.

The Clerk of the Court is directed to serve a copy of this Order on James E. Tilton,

Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, Sacramento, California 95814. IT IS FURTHER ORDERED that: 5. 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). However, Plaintiff is GRANTED forty five (45) days leave from the date this Order is "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). Further, if 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.

DATED: March 5, 2008

Hon. Roger T. Benitez United States District Judge

K:\COMMON\EVERYONE\_EFILE-PROSE\BEN\07cv2414-grantIFP&dismiss.wpd

-6-

07cv2414