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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JON HUMES,

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No. 2:18-cv-0426 CKD P
Plaintiff,

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v.

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HARMAN, et al.,

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ORDER

Defendants.

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Plaintiff is a Sacramento County Jail prisoner proceeding pro se and seeking relief

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pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302

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pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a

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declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the

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initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.

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Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding

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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by

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the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account

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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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Having conducted the required screening, the court finds that plaintiff may proceed on a

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claim arising under the Fourth Amendment against defendant Harman. Plaintiff also names

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Sacramento County as a defendant. However, a municipality cannot be a defendant in a § 1983

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case unless the plaintiff is damaged in some way as a result of a custom or policy of the

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municipality. See Monell v. Dep’t of Soc. Services of City of N.Y., 436 U.S. 658, 690 (1978).

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There is no such allegation in plaintiff’s complaint.

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Finally, the court notes that plaintiff has filed a motion asking that the court waive the

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filing fee for this case and provide plaintiff with $500 per month to “facilitate discovery and other

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advances.” Both requests will be denied as prisoners are required to pay filing fees in full for

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civil actions they file, see 28 U.S.C. § 1915(b)(1), and the court generally has no authority to

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provide funds to pro se litigants for discovery or other litigation expenses.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 5) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees

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shall be collected and paid in accordance with this court’s order to the Sacramento County Sheriff

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filed concurrently herewith.

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3. Service is appropriate for defendant Harman.

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4. The Clerk of the Court shall send plaintiff a USM-285 form, a summons, an instruction

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sheet and a copy of the complaint.

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5. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Submission of Documents and submit the following documents to the court:

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a. The completed Notice of Submission of Documents;

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b. One completed summons;

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c. One completed USM-285 form; and

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d. Two copies of the complaint.

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6. Plaintiff need not attempt service on defendant and need not request waiver of service.

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Upon receipt of the above-described documents, the court will direct the United States Marshal to

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serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment

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of costs.

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7. Plaintiff’s “motion to dismiss filing fees” (ECF No. 6) is denied.

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8. Plaintiff’s “motion for funds” (ECF No. 7) is denied.

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9. The Clerk of the Court is directed to assign a district court judge to this case.

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IT IS HEREBY RECOMMENDED that Sacramento County be dismissed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen after

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being served with these findings and recommendations, plaintiff may file written objections with

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the court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time

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waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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Dated: April 16, 2018

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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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hume0426.1

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JON HUMES,

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No. 2:18-cv-0426 CKD P
Plaintiff,

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v.

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HARMAN, et al.,

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NOTICE OF SUBMISSION
OF DOCUMENTS
Defendants.

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Plaintiff submits the following documents in compliance with the court's order filed
_____________________:

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completed summons form

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completed USM-285 forms

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copies of the ___________________
Complaint

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DATED:

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____________________
Plaintiff

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_______________________________

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