Humes v. Harman et al

Filing 8

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/16/2018 GRANTING 5 Motion to Proceed IFP; DENYING 6 "Motion to Dismiss Filing Fees"; DENYING 7 "Motion for Funds"; DIRECTING PLAI NTIFF TO SUBMIT SERVICE DOCUMENTS and USM-285 Forms; DIRECTING the Clerk of Court to assign a district court judge to this case; and RECOMMENDING Sacramento County be dismissed. Plaintiff to pay the statutory filing fee of $350. All fees to b e collected and paid in accordance with this court's order to the Sacramento County Sheriff filed concurrently herewith. Service is appropriate for Harman. Clerk to send plaintiff: 1 Summons, 1 USM-285 Form with instruction sheet, and 1 copy of the Complaint filed on 2/26/2018. Assigned and referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JON HUMES, 12 No. 2:18-cv-0426 CKD P Plaintiff, 13 v. 14 HARMAN, et al., 15 ORDER Defendants. 16 17 Plaintiff is a Sacramento County Jail prisoner proceeding pro se and seeking relief 18 pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 19 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 1 The court is required to screen complaints brought by prisoners seeking relief against a 2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 3 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 4 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 6 Having conducted the required screening, the court finds that plaintiff may proceed on a 7 claim arising under the Fourth Amendment against defendant Harman. Plaintiff also names 8 Sacramento County as a defendant. However, a municipality cannot be a defendant in a § 1983 9 case unless the plaintiff is damaged in some way as a result of a custom or policy of the 10 municipality. See Monell v. Dep’t of Soc. Services of City of N.Y., 436 U.S. 658, 690 (1978). 11 There is no such allegation in plaintiff’s complaint. 12 Finally, the court notes that plaintiff has filed a motion asking that the court waive the 13 filing fee for this case and provide plaintiff with $500 per month to “facilitate discovery and other 14 advances.” Both requests will be denied as prisoners are required to pay filing fees in full for 15 civil actions they file, see 28 U.S.C. § 1915(b)(1), and the court generally has no authority to 16 provide funds to pro se litigants for discovery or other litigation expenses. 17 In accordance with the above, IT IS HEREBY ORDERED that: 18 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 5) is granted. 19 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 20 shall be collected and paid in accordance with this court’s order to the Sacramento County Sheriff 21 filed concurrently herewith. 22 3. Service is appropriate for defendant Harman. 23 4. The Clerk of the Court shall send plaintiff a USM-285 form, a summons, an instruction 24 sheet and a copy of the complaint. 25 ///// 26 ///// 27 ///// 28 ///// 2 1 5. Within thirty days from the date of this order, plaintiff shall complete the attached 2 Notice of Submission of Documents and submit the following documents to the court: 3 a. The completed Notice of Submission of Documents; 4 b. One completed summons; 5 c. One completed USM-285 form; and 6 d. Two copies of the complaint. 7 6. Plaintiff need not attempt service on defendant and need not request waiver of service. 8 Upon receipt of the above-described documents, the court will direct the United States Marshal to 9 serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment 10 of costs. 11 7. Plaintiff’s “motion to dismiss filing fees” (ECF No. 6) is denied. 12 8. Plaintiff’s “motion for funds” (ECF No. 7) is denied. 13 9. The Clerk of the Court is directed to assign a district court judge to this case. 14 IT IS HEREBY RECOMMENDED that Sacramento County be dismissed. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen after 17 being served with these findings and recommendations, plaintiff may file written objections with 18 the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 19 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 20 waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 21 1991). 22 Dated: April 16, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 1 hume0426.1 28 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JON HUMES, 12 No. 2:18-cv-0426 CKD P Plaintiff, 13 v. 14 HARMAN, et al., 15 NOTICE OF SUBMISSION OF DOCUMENTS Defendants. 16 17 18 Plaintiff submits the following documents in compliance with the court's order filed _____________________: 19 ____ completed summons form 20 ____ completed USM-285 forms 21 ____ copies of the ___________________ Complaint 22 23 DATED: 24 ____________________ Plaintiff 25 26 _______________________________ 27 28 1

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