Sekerke v. Wallace et al
Filing
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ORDER granting 8 Motion for Extension of Time to Re-File IFP Motion; granting 9 Motion for Leave to Proceed in forma pauperis; 11 Motion for Leave to proceed in forma pauperis. The Secretary CDCR, or his designee, is ordered to collect from pr ison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). Clerk shall issue a summons as to Pla's Complaint. US Marshal shall effect service of Complaint and summons upon Defendants Signed by Judge John A. Houston on 1/5/2012.(Order electronically transmitted to Matthew Cate, Secretary CDCR). (IFP Package prepared and sent to Plaintiff) (All non-registered users served via U.S. Mail Service) (jah)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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KEITH WAYNE SEKERKE,
CDCR #V-15331,
Civil No.
Plaintiff,
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vs.
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PETER WALLACE; J. GARCIA;
R. COBB; E. GARCIA,
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Defendants.
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ORDER:
(1) GRANTING PLAINTIFF’S
MOTIONS TO PROCEED IN
FORMA PAUPERIS, IMPOSING
NO INITIAL PARTIAL FILING FEE
AND GARNISHING BALANCE
FROM PRISONER’S TRUST
ACCOUNT PURSUANT
TO 28 U.S.C. § 1915(a)
[ECF Nos. 8, 9, 11]; AND
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11-1978 JAH (NLS)
(2) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE OF COMPLAINT
PURSUANT TO F ED.R.C IV.P. 4(c)(3)
& 28 U.S.C. § 1915(d)
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Keith Sekerke, (“Plaintiff”), a state prisoner currently incarcerated at the California
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Correctional Institution located in Tehachapi, California, and proceeding in pro se, has filed this
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civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff claims that his constitutional
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rights were violated when he was housed at the Richard J. Donovan Correctional Facility in
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2011.
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11cv1978 JAH (NLS)
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Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead he
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has filed three Motions to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)
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[ECF Nos. 8, 9, 11].
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I.
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M OTION TO P ROCEED IFP
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All parties instituting any civil action, suit or proceeding in a district court of the United
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States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28
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U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee
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only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v.
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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed IFP
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remains obligated to pay the entire fee in installments, regardless of whether his action is
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ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847
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(9th Cir. 2002).
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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a
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prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account
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statement (or institutional equivalent) for the prisoner for the six-month period immediately
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preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113,
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1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial
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payment of 20% of (a) the average monthly deposits in the account for the past six months, or
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(b) the average monthly balance in the account for the past six months, whichever is greater,
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unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The
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institution having custody of the prisoner must collect subsequent payments, assessed at 20% of
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the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and
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forward those payments to the Court until the entire filing fee is paid.
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§ 1915(b)(2).
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///
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See 28 U.S.C.
11cv1978 JAH (NLS)
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The Court finds that Plaintiff has submitted a certified copy of his trust account statement
Andrews, 398 F.3d at 1119.
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pursuant to 28 U.S.C. § 1915(a)(2) and S.D. C AL. C IVLR 3.2.
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Plaintiff’s trust account statement shows he has insufficient funds with which to pay any initial
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partial filing fee. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be
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prohibited from bringing a civil action or appealing a civil action or criminal judgment for the
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reason that the prisoner has no assets and no means by which to pay [an] initial partial filing
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fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve”
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preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack
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of funds available.”).
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Therefore, the Court GRANTS Plaintiff’s Motions to Proceed IFP [ECF Nos. 8, 9, 11],
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and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350
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balance of the filing fees mandated shall be collected and forwarded to the Clerk of the Court
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pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
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II.
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S CREENING P URSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
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The PLRA also obligates the Court to review complaints filed by all persons proceeding
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IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused
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of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or
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conditions of parole, probation, pretrial release, or diversionary program,” “as soon as
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practicable after docketing.”
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provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof,
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which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who
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are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-
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27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
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2010) (discussing 28 U.S.C. § 1915A(b)).
See 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
Under these
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“[W]hen determining whether a complaint states a claim, a court must accept as true all
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allegations of material fact and must construe those facts in the light most favorable to the
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plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Barren v. Harrington,
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152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) “parallels the language of Federal
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Rule of Civil Procedure 12(b)(6)”). In addition, courts “have an obligation where the petitioner
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is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the
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petitioner the benefit of any doubt.” Hebbe v. Pliler, __ F.3d __, 2010 WL 4673711 at *3 & n.7
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(9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). The court may
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not, however, “supply essential elements of claims that were not initially pled.” Ivey v. Board
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of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and
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conclusory allegations of official participation in civil rights violations are not sufficient to
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withstand a motion to dismiss.” Id.
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As currently pleaded, the Court finds Plaintiff’s allegations sufficient to survive the sua
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sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Lopez, 203 F.3d at
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1126-27. Accordingly, the Court finds Plaintiff is entitled to U.S. Marshal service on his behalf.
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See 28 U.S.C. § 1915(d); F ED.R.C IV.P. 4(c)(3) (“[T]he court may order that service be made by
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a United States marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma
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pauperis under 28 U.S.C. § 1915.”). Plaintiff is cautioned that “the sua sponte screening and
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dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12[] motion
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that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D.
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Cal. 2007).
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III.
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C ONCLUSION AND O RDER
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Good cause appearing therefor, IT IS HEREBY ORDERED that:
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1.
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Plaintiff’s Motions to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF Nos. 8,
9, 11] are GRANTED.
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The Secretary of California Department of Corrections and Rehabilitation, or his
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designee, is ordered to collect from Plaintiff’s prison trust account the $350 balance of the filing
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fee owed in this case by collecting monthly payments from the trust account in an amount equal
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to twenty percent (20%) of the preceding month’s income credited to the account and forward
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payments to the Clerk of the Court each time the amount in the account exceeds $10 in
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accordance with 28 U.S.C. § 1915(b)(2).
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IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
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3.
ALL PAYMENTS SHALL BE CLEARLY
The Clerk of the Court is directed to serve a copy of this order on Matthew Cate,
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Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883,
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Sacramento, California 94283-0001.
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IT IS FURTHER ORDERED that:
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4.
The Clerk shall issue a summons as to Plaintiff’s Complaint [ECF No. 1] upon
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Defendants and shall and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for
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each Defendant. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order
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and a certified copy of his Complaint and the summons so that he may serve Defendants. Upon
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receipt of this “IFP Package,” Plaintiff is directed to complete the Form 285s as completely and
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accurately as possible, and to return them to the United States Marshal according to the
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instructions provided by the Clerk in the letter accompanying his IFP package. Upon receipt,
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the U.S. Marshal shall serve a copy of the Complaint and summons upon Defendants as directed
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by Plaintiff on the USM Form 285s. All costs of service shall be advanced by the United States.
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See 28 U.S.C. § 1915(d); F ED.R.C IV.P. 4(c)(3).
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5.
Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint within the
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time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42
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U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the right to
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reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility
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under section 1983,” once the Court has conducted its sua sponte screening pursuant to 28
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U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on
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the face on the pleading alone that Plaintiff has a “reasonable opportunity to prevail on the
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merits,” the defendant is required to respond).
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6.
Plaintiff shall serve upon the Defendants or, if appearance has been entered by
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counsel, upon Defendants’ counsel, a copy of every further pleading or other document
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submitted for consideration of the Court. Plaintiff shall include with the original paper to be
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filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy
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of any document was served on Defendants, or counsel for Defendants, and the date of service.
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Any paper received by the Court which has not been filed with the Clerk or which fails to
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include a Certificate of Service will be disregarded.
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DATED: ___1-5-12________
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________________________________________
HON. JOHN A. HOUSTON
United States District Judge
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