Chavez v. Hansson et al

Filing 3

ORDER granting 2 Motion for Leave to Proceed in forma pauperis, imposing $10.04 initial partial filing fee, garnishing $339.96 balance from prisoner's trust account; and Directing U.S. Marshall to effect service pursuant to FED.R.CIV.P. 4(c)(2) AND 28 U.S.C. § 1915(d). Signed by Judge Larry Alan Burns on 10/31/07. (Attachments: # 1 IFP Letter) (vrp)

Chavez v. Hansson et al

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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 Ernesto Chavez, a state prisoner currently incarcerated at the Richard J. Donovan C o r r e c t io n a l Facility ("RJDCF") located in San Diego, California, and proceeding pro se, has s u b m i t te d a civil action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that RJDCF have been delibe rately indifferent to his serious mental health needs in violation of his Eighth Amendment r i g h t to be free from cruel and unusual punishment. (Compl. at 3.) Plaintiff has also filed a M o t i o n to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. Defendan ts. J A S O N HANSSON, M.D., LEO S A L D I V A R , M.D., CRAIG KAISER, M .D.; vs. E R N E S T O CHAVEZ, CDC R#P-06885, P l a i n ti f f , Civil No. OR DE R: (1) GRANTING MOTION TO P R O C E E D IN FORMA PAUPERIS, I M P O S IN G $10.04 INITIAL P A R T I A L FILING FEE, G A R N I SH I N G $339.96 BALANCE F R O M PRISONER'S TRUST A C C O U N T [Doc. No. 2]; AND ( 2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE PURSUANT T O FED.R.CIV.P. 4(c)(2) AND 28 U.S.C. § 1915(d) 07-1405 LAB (CAB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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I.

M o t i o n to Proceed IFP [Doc. No. 2] 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 party's failure to p r e p a y the entire fee only if the party 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). Prisoners granted leave to proceed IFP however, remain obligated to pay the entire fee in installments, regardless of wh ethe r the action is ultimately dismissed for any reason. See 28 U.S.C. § 1915(b)(1) & (2). Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a p r is o n e r seeking leave to proceed IFP must submit a "certified copy of the trust fund account s t a te m e n t (or institutional equivalent) for the prisoner 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). From the certified trust account statem ent, the Court must assess 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 p a s t 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). That institution having custody of the prisoner must c o l l ec t subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forward those payments to the Court until the entir e filing fee is paid. See 28 U.S.C. § 1915(b)(2). T h e Court finds that Plaintiff has submitted a certified copy of his trust account statement p u r s u a n t to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff's trust account statement s ho w s an average monthly balance and deposits of $50.18 and a current available balance of $ 2 2 6 . 1 8 . Based on this financial information, the Court GRANTS Plaintiff's Motion to Proceed I F P [Doc. No. 2] and assesses an initial partial filing fee of $10.04 pursuant to 28 U.S.C. § 1915(b)(1). However, the Secretary of the California Department of Corrections and

R e h a b i l it a t io n ("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 2

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p r o h i b it e d from bringing a civil action or appealing a civil action or criminal judgment for the r e a so n that the prisoner has no assets and no means by which to pay the initial partial filing f e e . " ) ; 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 o n a "failure to pay ... due to the lack of funds available to him when payment is ordered."). The r e m a i n in g balance shall be collected and forwarded to the Clerk of the Court pursuant to the installmen t payment provisions set forth in 28 U.S.C. § 1915(b)(1). 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 proceeding I F P and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused o f , sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or c o n d i t io n s 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 any 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 4 4 3 , 446 (9th Cir. 2000) (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A). "[W ]he n 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 m o s t 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)"). Here, the Court finds that Plaintiff's Complaint survives the sua sponte screening required b y 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Accordingly, Plaintiff is entitled to U.S. Marshal serv ice on his behalf. Lopez, 203 F.3d at 1126-27; 28 U.S.C. § 1915(d) ("The officers of the court shall issue and serve all process, and perform all duties in [IFP] cases."); FED.R.CIV.P. 4 ( c ) (2 ) (providing that "service be effected by a United States marshal, deputy United States m a r s h a l , or other officer specially appointed by the court ... when the plaintiff is authorized to 3

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p r o c e e d in forma pauperis pursuant to 28 U.S.C. § 1915."). III. C o n c l u s i o n and Order Go od 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]

i s GRANTED. 2. T h e Secretary of the California Department of Corrections and Rehabilitation

("CD C R "), or his designee, is ordered to collect the $10.04 initial partial filing fee assessed b y this Order and forward that amount to the Clerk of Court, if those funds are available at t h e time this Order is executed. THE INITIAL PARTIAL FILING FEE SHALL BE CLEARLY I D EN T IF IE D BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 3. T h e Secretary of the CDCR, or his designee, is ordered to collect from Plaintiff's

p r i s o n trust account the $339.96 balance of the filing fee owed in this case by collecting monthly payme nts from Plaintiff's prison trust account in an amount equal to twenty percent (20%) of t h e preceding month's income credited to the account and forward payments to the Clerk of the Cou rt 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 N A M E AND NUMBER ASSIGNED TO THIS ACTION. 4. The Clerk of the Court is directed to serve a copy of this Order on James E. 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: 5. T h e Clerk shall issue a summons for Defendants, provide Plaintiff with a certified

c o p y of both this Order and his Complaint [Doc. No. 1], and forward them to Plaintiff along with a blank U.S. Marshal Form 285 for each of these Defendants. Plaintiff shall complete the Form 2 8 5 s and forward them to the United States Marshal within a reasonable amount of time such th a t the U . S . Marshal can timely serve the Defendants within the 120 days provided by F ED.R.C IV. P . 4(m). The U.S. Marshal shall, after receiving Plaintiff's completed Form 285s, s e r v e a copy of the Complaint, its Exhibits and summons upon Defendants as directed by 4

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Plaintiff on each U.S. Marshal Form 285. All costs of service shall be advanced by the United Sta tes. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(2). 6. 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 ed 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 t o include a Certificate of Service will be disregarded. I T IS SO ORDERED.

D A T E D : October 31, 2007

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

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