Jones v. Nichols

Filing 4

ORDER (1) Granting 2 Motion for Leave to Proceed in forma pauperis; and (2) Directing US Marshal to Effect Service of Complaint Pursuant to Fed.R.Civ.P. 4(c)(3) & 28 U.S.C. 1915(d). The Secretary CDCR, or his designee, is ordered to collect from p rison 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). (Order electronically transmitted to Matthew Cate, Secretary CDCR). Signed by Judge Barry Ted Moskowitz on 6/18/2012. (All non-registered users served via U.S. Mail Service)(IFP Package Mailed to Plaintiff)(rlu)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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EDWARD JONES,
CDCR #K-52736,

Civil No.
Plaintiff,

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vs.
MRS. NICHOLS, Correctional Counselor,

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(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS; and

(2) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE OF
COMPLAINT PURSUANT TO
FED.R.CIV.P. 4(c)(3)
& 28 U.S.C. § 1915(d)

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Defendant.

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Edward Jones (“Plaintiff”), an inmate currently incarcerated at Centinela State Prison

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located in Imperial, California, and proceeding pro se, has submitted a civil rights Complaint

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pursuant to 28 U.S.C. § 1983. In addition, Plaintiff has filed a Motion to Proceed In Forma

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Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No. 2].

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I.

Motion to Proceed IFP [ECF No. 2]

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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 party’s failure to prepay the entire fee only

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if that party 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). Prisoners granted leave to proceed IFP however,

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remain obligated to pay the entire fee in installments, regardless of whether their 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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The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C.

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§ 1915(a)(1), and that he has attached a certified copy of his trust account statement pursuant to

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28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff’s trust account statement indicates

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that he has insufficient funds from which to pay filing fees at this time. See 28 U.S.C.

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§ 1915(b)(4).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP [ECF No. 2] and

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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.

Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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Notwithstanding payment of any filing fee or portion thereof, the Prison Litigation

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Reform Act (“PLRA”) requires courts to review complaints filed by prisoners against officers

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or employees of governmental entities and dismiss those or any portion of those found frivolous,

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malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief

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from a defendant immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez

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v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213

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F.3d 443, 446 (9th Cir. 2000) (§ 1915A).

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As currently pleaded, the Court finds Plaintiff’s allegations are sufficient to survive the

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sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).1 Accordingly, the

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Court finds Plaintiff is entitled to U.S. Marshal service on his behalf. See 28 U.S.C. § 1915(d);

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FED.R.CIV.P. 4(c)(3).

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Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of,
and not a substitute for, any subsequent Rule 12[] motion that [a defendant] may choose to bring.”
Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007).
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III.

Conclusion

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Good cause appearing therefor, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is

GRANTED.
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The Secretary of the California Department of Corrections and Rehabilitation, or

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his designee, is ordered to collect from Plaintiff’s prison trust account the $350 balance of the

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filing fee owed in this case by collecting monthly payments from the trust account in an amount

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equal to twenty percent (20%) of the preceding month’s income credited to the account and

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forward 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 [Doc. 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 copy of this Order and a

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copies of his Complaint and summons so that he may serve Defendants. Upon receipt of this

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“IFP Package,” Plaintiff is directed to complete the Form 285s as completely and accurately as

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possible, and to return them to the United States Marshal according to the instructions provided

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by the Clerk in the letter accompanying his IFP package. Upon receipt, the U.S. Marshal shall

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serve a copy of the Complaint and summons upon Defendants as directed by Plaintiff on the

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USM Form 285s. All costs of service shall be advanced by the United States. See 28 U.S.C.

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§ 1915(d); FED.R.CIV.P. 4(c)(3).

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5.

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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IT IS SO ORDERED.

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DATED: June 18, 2012

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BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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