Rivera v. Uribe et al

Filing 3

ORDER Granting Plaintiff's 2 Motion for Leave to Proceed in Forma Pauperis, and Imposing Initial Partial Filing Fee of $127.07 and Garnishing Balance from Prisoner's Trust Account, and Directing U.S. Marshal to Effect Service of Comp laint. Defendants are ordered to reply to Plaintiffs Complaint within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). (Order electronically transmitted to Matthew Cate, Secretary CDCR). Signed by Judge Larry Alan Burns on 12/6/10. (All non-registered users served via U.S. Mail Service)(IFP package prepared)(kaj)

- B G S Rivera v. Uribe et al

Doc. 3

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 D e f e n d a n ts . D . URIBE, Warden; JA M E S NAPOLITANO, Lieutenant; A B L E ZAMORA, Sergeant, vs. RICARDO RIVERA, CDCR #K-40871, P la in tif f , Civil No. ORDER: ( 1 ) GRANTING PLAINTIFF'S M O T IO N TO PROCEED IN FORMA PAUPERIS, IMPOSING INITIAL PARTIAL FILING FEE A N D GARNISHING BALANCE F R O M PRISONER'S TRUST A C C O U N T PURSUANT TO 28 U.S.C. § 1915(a) [Doc. No. 2]; AND (2 ) DIRECTING U.S. MARSHAL TO E F F E C T SERVICE OF COMPLAINT P U R S U A N T TO FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d) 10-2245 LAB (BGS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

R ica rd o Rivera ("Plaintiff"), a state prisoner currently incarcerated at Pelican Bay State P r is o n located in Crescent City, California, and proceeding in pro se, has filed a civil rights C o m p lain t pursuant to 42 U.S.C. § 1983. Plaintiff alleges that his constitutional rights were v io la te d when he was housed at Centinela State Prison in 2009. P la in tif f has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead he h a s filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. N o . 2]. 1

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I. M OTION TO PROCEED IFP A ll parties instituting any civil action, suit or proceeding in a district court of the United S t a te 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 plaintiff's failure to prepay the entire fee o n ly if he 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). However, a prisoner granted leave to proceed IFP re m a in s obligated to pay the entire fee in installments, regardless of whether his action is u ltim a te ly dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). U n d e r 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a p ris o n e r seeking leave to proceed IFP must submit a "certified copy of the trust fund account sta tem e n t (or institutional equivalent) for the prisoner for the six-month period immediately p re c e d in g the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1 1 1 9 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial p a ym e n t 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 past six months, whichever is greater, u n le s s the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The in s titu tio n having custody of the prisoner must collect subsequent payments, assessed at 20% of th e preceding month's income, in any month in which the prisoner's account exceeds $10, and f o rw a r d those payments to the Court until the entire filing fee is paid. § 1915(b)(2). T h e Court finds that Plaintiff has submitted a certified copy of his trust account statement p u rs u a n t to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Andrews, 398 F.3d at 1119. P la in tif f 's statement shows a current available balance of $697.18, an average monthly balance o f $635.34, and average monthly deposits totaling $203.34. Based on this financial information, th e Court GRANTS Plaintiff's Motion to Proceed IFP [Doc. No. 2] and assesses an initial partial f ilin g fee of $127.07 pursuant to 28 U.S.C. § 1915(b)(1). 2 See 28 U.S.C.

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H o w e v e r, the Secretary of the CDCR, or his designee, shall collect this initial fee only if s u ffic ie n t 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 prohibited from bringing a civil action or appealing a civil action or criminal ju d g m e n t for the reason that the prisoner has no assets and no means by which to pay the initial p a rtial filing fee."); 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 so lely on a "failure to pay ... due to the lack of funds available to him when payment is o rde re d ."). The remaining balance shall be collected and forwarded to the Clerk of the Court p u rsua n t to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). II. S CREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) T h e PLRA also obligates the Court to review complaints filed by all persons proceeding IF 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 itio n s of parole, probation, pretrial release, or diversionary program," "as soon as p ra c tic a b le after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these

p ro v is io n s of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, w h ic h are frivolous, malicious, fail to state a claim, or which seek damages from defendants who a re immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 11262 7 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A). "[W]hen determining whether a complaint states a claim, a court must accept as true all a lle g a tio n s of material fact and must construe those facts in the light most favorable to the p la in tif f ." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "p ara l lels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's d u ty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., 3

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8 3 9 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. B o n z e le t, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a p ro se civil rights complaint, the court may not "supply essential elements of claims that were n o t initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th C ir. 1982). "Vague and conclusory allegations of official participation in civil rights violations a re not sufficient to withstand a motion to dismiss." Id. As currently pleaded, the Court finds Plaintiff's allegations sufficient to survive the sua s p o n te screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Lopez, 203 F.3d at 1 1 2 6 -2 7 ; Farmer v. Brennan, 511 U.S. 825 833-34 (1994) ("Prison officials have a duty ... to p ro te c t prisoners from violence."). Accordingly, the Court finds Plaintiff is entitled to U.S. M a rs h a l service on his behalf. See 28 U.S.C. § 1915(d) ("The officers of the court shall issue a n d serve all process, and perform all duties in [IFP] cases."); FED.R.CIV.P. 4(c)(3) ("[T]he court m a y order that service be made by a United States marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915."). Plaintiff is cautioned that " th e sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any s u b s e q u e n t Rule 12[] motion that [a defendant] may choose to bring." Teahan v. Wilhelm, 481 F . Supp. 2d 1115, 1119 (S.D. Cal. 2007). III. C ONCLUSION AND ORDER Good cause appearing therefor, IT IS HEREBY ORDERED that: 1. P la in tif f 's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 4]

is GRANTED. 2. The Secretary of the CDCR, or his designee, is ordered to collect the $127.07

in itia l partial filing fee assessed by this Order and forward that amount to the Clerk of Court, if those funds are available at the time this Order is executed. THE INITIAL PARTIAL F IL IN G FEE SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER A S S IG N E D TO THIS ACTION. /// 4

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3.

T h e Secretary of the CDCR, or his designee, is ordered to collect from Plaintiff's

p riso n trust account the balance of the $350 filing fee owed in this case by collecting monthly p a ym e n ts from Plaintiff's prison trust account in an amount equal to twenty percent (20%) of th e preceding month's income credited to the account and forward payments to the Clerk of the C o u 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 Matthew Cate,

Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883, Sacramento, California 94283-0001. IT IS FURTHER ORDERED that: 5. The Clerk shall issue a summons as to Plaintiff's Complaint [Doc. No. 1] upon

Defendants and shall and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order and a certified copy of his Complaint and the summons so that he may serve Defendants. Upon receipt of this "IFP Package," Plaintiff is directed to complete the Form 285s as completely and accurately as possible, and to return them to the United States Marshal according to the instructions provided by the Clerk in the letter accompanying his IFP package. Upon receipt, the U.S. Marshal shall serve a copy of the Complaint and summons upon Defendants as directed by Plaintiff on the USM Form 285s. All costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3). 6. Defendants are thereafter ORDERED to reply to Plaintiff's Complaint within the time

provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to "waive the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility under section 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 on the pleading alone that Plaintiff has a "reasonable opportunity to prevail on the merits," the defendant is required to respond). 5

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7.

Plaintiff shall serve upon the Defendants or, if appearance has been entered by counsel,

upon Defendants' counsel, a copy of every further pleading or other document submitted for consideration of the Court. Plaintiff shall include with the original paper to be filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy of any document was served on Defendants, or counsel for Defendants, and the date of service. Any paper received by the Court which has not been filed with the Clerk or which fails to include a Certificate of Service will be disregarded.

DATED: December 6, 2010

HO N O R A B L E LARRY ALAN BURNS United States District Judge

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