Johnson v. Almager et al

Filing 7

ORDER granting 4 Motion for Leave to Proceed in forma pauperis, imposing no initial partial filing fee, garnishing $350 from prisoner's trust account; Directing USM to effect service pursuant to Fed.R.Civ.P. 4(c)(2) and 28 USC 1915 (d); G ranting 6 Plaintiff's Request to have USM serve summons upon defendants as moot. IFP packet prepared and sent to Plaintiff, copy of order served on James Tilton, Secretary of California Dept of Corrections. Signed by Judge Larry Alan Burns on 7/13/07. (vrp)(bar, ).

Johnson v. Almager et al

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Case 3:07-cv-00957-LAB-WMC

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vs.

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF CALIFORNIA
A A R O N D. JOHNSON, C D C #H-72354, Plaintiff, C i v i l No. ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE, GARNISHIN G $350 FROM PRISONER'S TRUST ACCOUNT [Doc. No. 4]; (2) DIRECTING U.S. MARSHAL TO 07-0957 LAB (WMc)

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Defendants. V.M . ALMAGER, et al.,

E F F E C T SERVICE PURSUANT TO F ED.R.C IV. P. 4(c)(2) AND 28 U.S.C. § 1915(d)
(3) GRANTING PLAINTIFF'S REQUEST TO HAVE UNITED MARSHAL SERVE S U M M O N S UPON DEFENDANTS AS MOOT [Doc. No. 6]

P l a i n ti f f , Aaron Johnson, a state prisoner currently incarcerated at Centinela State Prison l o c a te d in Imperial, California and proceeding pro se, has filed a civil rights action filed pursuant to 42 U.S.C. § 1983. 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. 4]. -1-

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07cv0957

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I.

Motion to Proceed IFP [Doc. No. 4] E f f e c t i v e April 9, 2006, all parties instituting any civil action, suit or proceeding in a

d i s tr i c t court of the United States, except an application for writ of habeas corpus, must pay a f i li n g fee of $350. 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 g r a n t e d leave to proceed IFP remain obligated to pay the entire fee in installments, regardless o f whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. D e l a t o o r e , 281 F.3d 844, 847 (9th Cir. 2002). S e c t i o n 1915, as amended by the Prison Litigation Reform Act ("PLRA"), further r e q u i re s that each prisoner seeking leave to proceed IFP submit a "certified copy of [his] trust f u n d account statement (or institutional equivalent) ... for the six-month period immediately p r e c e d in g the filing of the complaint." 28 U.S.C. § 1915(a)(2). Using these certified trust a c c o u n t statements, the Court must assess an initial payment of 20% of (a) the average monthly depo sit, 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 a t 850. Thereafter, the institution having custody of the prisoner must collect subsequent p a y m e n t s , assessed at 20% of the preceding month's income, in any month in which his account e x c e e d s $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. T h e Court finds that Plaintiff has submitted an affidavit that complies with 28 U.S.C. § 1915(a)(1) [Doc. No. 2] as well as a certified copy of his prison trust account statement p u r s u a n t to 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3.2. Plaintiff's trust account statement i n d i c at e s that he has insufficient funds from which to pay a partial initial filing fee. Accordingly, t h e Court hereby GRANTS Plaintiff's Motion to Proceed IFP [Doc. No. 4], and assesses no i n i ti a l partial filing fee at this time. See 28 U.S.C. § 1915(b)(1) (court shall assess initial partial f i l in g fee only "when funds exist"); 28 U.S.C. § 1915(b)(4) ("In no event shall a prisoner be -2-

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p r o h i b it e d from bringing a civil action . . . for the reason that the prisoner has no assets and no m e a n s 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 s o lely 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 $350 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. S u a Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A T h e PLRA also obligates the Court to review complaints filed by all persons p r o c e e d in g IFP and those, like Plaintiff, who are "incarcerated or detained in any facility [and] a c c u s e d of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms o r conditions of parole, probation, pretrial release, or diversionary program," "as soon as practic able after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these

p r o v i s i o n s , the Court must sua sponte dismiss prisoner and all other IFP complaints, or any p o r t io n s thereof, which are frivolous, malicious, fail to state a claim, or which seek damages f r o m defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 2 0 3 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). H e r e , the Court finds that Plaintiff's allegations, if presumed true as they must at this s t a g e of review, are sufficient to survive the initial screening provisions of 28 U.S.C. § § 1915(e)(2) and 1915A(b). See Compl. at 4-5; Lopez, 203 F.3d at 1126-27 (9th Cir. 2000) ( " T h e language of section 1915(e)(2), as it applies to dismissals for failure to state a claim, `paralle ls the language of Federal Rule of Civil Procedure 12(b)(6).'") quoting Barren v. H a r r i n g t o n, 152 F.3d 1193, 1194 (9th Cir. 1998); Resnick, 200 F.3d at 644 (when conducting s u a sponte screening pursuant to 28 U.S.C. § 1915, court must construe pro se pleadings liberally). However, Plaintiff is cautioned that "the sua sponte screening and dismissal

p r o c e d u r e is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that -3-

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[ a defendant] may choose to bring." Teahan v. Wilhelm, 481 F.Supp.2d 1115, 1119 (S.D. Cal. 200 7). III. C o n c l u s i o n and Order Good cause appearing therefor, IT IS HEREBY ORDERED that: 1. GRANTED. 2. T h e Secretary of California Department of Corrections and Rehabilitation, or his Plaintiff's Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 4] is

d e s i g n e e , shall collect from Plaintiff's prison trust account the $350 balance of the filing fee o w e d in this case by collecting monthly payments from the account in an amount equal to twenty p e r c e n t (20%) of the preceding month's income and forward payments to the Clerk of the Court e a c h time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). A L L PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER A S S IG N E D TO THIS ACTION. 3. The Clerk of the Court is directed to serve a copy of this Order on James Tilton,

Se cr eta ry, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, S a c r a m e n t o , California 95814. I T IS FURTHER ORDERED that: 4. P lain tiff's "Request to have United States Marshal Serve Summons upon

D e f e n d a n t s " [Doc. No. 6] is GRANTED. 5. T h e Clerk shall issue the summons, provide Plaintiff with a certified copy of both

this Order and his Complaint, and forward them to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant named in his Complaint. Plaintiff shall complete the Form 285s a n d forward them to the United States Marshal. The U.S. Marshal shall then serve a copy of the C o m p l a i n t and summons upon Defendants as directed by Plaintiff on each U.S. Marshal Form 2 8 5 . All costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d); F ED.R.C IV. P . 4(c)(2). //// //// -4-

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6.

D efe n d an ts are thereafter ORDERED to reply to the Complaint within the time

p r o v i d e d by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted to "waive the right to reply to a n y action brought by a prisoner confined in any jail, prison, or other correctional facility under s e c t io n 1983," once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the face o n the pleading alone that Plaintiff has a "reasonable opportunity to prevail on the merits," Defe n d an ts are required to respond). 7. P lain tiff shall serve upon Defendants or, if appearance has been entered by

coun sel, upon Defendants' counsel, a copy of every further pleading or other document s u b m i t t e d for consideration of the Court. Plaintiff shall include with the original paper to be f i le d with the Clerk of the Court a certificate stating the manner in which a true and correct copy o f any document was served on Defendants, or counsel for Defendants, and the date of service. A n y paper received by the Court which has not been filed with the Clerk or which fails to i n c l u d e a Certificate of Service will be disregarded. IT IS SO ORDERED.

D A T E D : July 13, 2007

H ONORABLE LARRY ALAN BURNS U n i t e d States District Judge

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