Rush v. Giurbino et al

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ORDER granting 2 Motion for Leave to Proceed in forma pauperis, imposing no initial filing fee, garnishing balance from prisoner's trust account; Directing U.S. Marshal to effect service pursuant to FED.R.CIV.P. 4(c)(2) and 28 U.S.C. § 1915(d). Copy of this order sent served on James Tilton.Signed by Judge Larry Alan Burns on 11/13/07. (Attachments: # 1 IFP Letter) (vrp)

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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 The proceedings were assigned to this Court, but have been referred to Magistrate Judge Nita L. Stormes by Local Rule 72.3(e), "Assignment of § 1983 Prisoner Civil Cases to United States Magistrate Judges," pursuant to 28 U.S.C. § 636. 1
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
J A SO N RUSH, C D C R #V-04604, P l a i n ti f f , Civil No. ORDER: ( 1) GRANTING MOTION TO P R O C E E D IN FORMA PAUPERIS, I M P O S IN G NO INITIAL FILING F E E , GARNISHING 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 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) 0 7 - 1 5 99 LAB (NLS)

vs.

G E O R G E J. GIURBINO; DA VE KHATRI, Defendan ts.

P l a i n ti f f , an inmate currently incarcerated at Centinela State Prison located in Imperial, C a l i f o rn i a , and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983.1 Plaintiff alleges that Centinela prison officials violated his Eighth Amendment right t o be free from cruel and unusual punishment when they denied him adequate medical care.

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P l a i n ti f f has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, h e has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Do c. No. 2]. I. M o t i o n to Proceed IFP [Doc. No. 2] All parties instituting any civil action, suit or proceeding in a district court of the United S t a t e s, 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 prepay the entire fee only if that party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. C o o k , 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however, re m a i n obligated to pay the entire fee in installments, regardless of whether their action is ultim ately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C. § 1915(a)(1), and that he has attached a certified copy of his trust account statement pursuant to 2 8 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff's trust account statement indicates t h a t he has insufficient funds from which to pay filing fees at this time. See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited from bringing a civil a c t io n 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."). Therefore, the Court G R A N T S Plaintiff's Motion to Proceed IFP [Doc. No. 2] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fees mandated shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment pro visio ns set forth in 28 U.S.C. § 1915(b)(1). II. S u a Sponte Screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A T h e PLRA also obligates the Court to review complaints filed by all persons proceeding I F P and those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, s e n t e n c ed for, or adjudicated delinquent for, violations of criminal law or the terms or conditions o f parole, probation, pretrial release, or diversionary program," "as soon as practicable after 2

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doc ketin g." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the Court must s u a sponte dismiss prisoner and all other IFP complaints, or any portions thereof, which are f r i v ol o u s , malicious, fail to state a claim, or which seek damages from defendants who are i m m u n e . See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 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). Lopez, 203 F.3d at 1126-27 (9th Cir. 2000) ("The language of s e c t io n 1915(e)(2), as it applies to dismissals for failure to state a claim, `parallels the language o f Federal Rule of Civil Procedure 12(b)(6).'") quoting Barren v. Harrington, 152 F.3d 1193, 1 1 9 4 (9th Cir. 1998); Resnick, 200 F.3d at 644 (when conducting sua sponte screening pursuant to 28 U.S.C. § 1915, court must construe pro se pleadings liberally). However, Plaintiff is c a u t io n e d that "the sua sponte screening and dismissal procedure is cumulative of, and not a s u b s t i tute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring." Tea han v. Wilhelm, 481 F.Supp.2d 1115, 1119 (S.D. Cal. 2007). 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. The Secretary of California Department of Corrections and Rehabilitation, or his

d e s i g n e e , is ordered to collect from Plaintiff's prison trust account the $350 balance of the filing f e e owed in this case by collecting monthly payments from the trust account in an amount equal to twenty percent (20%) of the preceding month's income credited to the account and forward paym ents to the Clerk of the Court each time the amount in the account exceeds $10 in accord a n c e with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY

I D EN T IF IE D BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

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3.

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

S e c r e t ar y , California Department of Corrections and Rehabilitation, P.O. Box 942883, S a c r a m e n t o , California 94283-0001. I T IS FURTHER ORDERED that: 4. 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). 5. 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," De fen dan ts are required to respond). 6. P l a i n ti f f 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 te d for consideration of the Court. Plaintiff shall include with the original paper to be f i l ed 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. /// /// /// /// 4

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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. D A T E D : November 13, 2007

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

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