Murillo v. Rucker et al

Filing 7

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. Section 1915(a) (Docs. 2 , 6 ) And (2) Directing U.S. M arshal To Effect Service Of Complaint Pursuant To Fed.R.Civ.P. 4(c)(3) And 28 U.S.C. Section 1915(d): The Secretary CDCR, or his designee, shall collect from Plaintiff's prison trust account the $350 filing fee owed in this case by collecti ng monthly payments from the account in an amount equal to 20% of the preceding month's income 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). Signed by Judge William Q. Hayes on 1/28/2013. (All non-registered users served via U.S. Mail Service; Order electronically transmitted to Secretary of CDCR; IFP package prepared.) (mdc) Modified on 1/30/2013 - Per Order, included in the IFP package were Exhibits filed separately as Doc. 4 . (mdc)

FtLED

1

2

13

3

29 Ai111: 02
~.

,.;;1

4

UJ1!5

5

':rC:CU;'~T

r (; i-: ,~,

DEPUTY

6
7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

12

RAMON MURILLO.
CDCR #P-43503,

Civil No.

Plaintiff,

13

14
15

VS.

16
17
18
19

20
21
22

23
24
25
26

RUCKER, Correctional Officer; OWENS,
Correctional Officer; CEDANO, Correctional
Officer; DANIEL PARAMO, Warden; CDCR
DENTAL DEPT.; HERNANDEZ, Assoc. Warden;
R. COBB, Appeals Coordinator;
D. FOSTON, Chief Appeals Officer; J. ELIAS,
Correctional Lieutenant, Badge No. 52147;
C. HAMIL TON, Correctional Officer;
D. STRAYHORN, Correctional Officer;
L. ROMERO, Correctional Officer; PICKETT, IGI
Officer, Badge No. 50381; DAVIS, IGI Officer,
Badge No. 65301; T. GOFF, Correctional
Counselor I; T. TAYLOR, Correctional Officer;
REED, Correctional Captain; E. SOLIS,
Correctional Officer; lVES, Correctional Sergeant,
Badge No. 58615; R. DAVIS, Correctional Officer,
Badge No. 75833,

27

12cv2642 WQH (WVG)

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. 2, 6]
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)

Defendants.

28

1:lEveryonel_EFILE-PROSEIWQHlI2cv2642-grt-IFP&"""",.wp<!

1

12cv2642 WQH (WVG)

1 II

Ramon Murillo ("Plaintiff"), a prisoner currently incarcerated at California State Prison

2 II in Corcoran, California, and proceeding in pro se, has filed a civil rights Complaint pursuant to
3 II 42 U.S.C. § 1983. Plaintiff, who is trans gender, claims various prison officials at Richard J.
4 II Donovan Correctional Facility in San Diego violated his First, Eighth and Fourteenth Amendment
5 II rights, and sexually harassed and assaulted him in violation of state law, while he was
611 incarcerated there in 2011 and 2012.

(Compi. at "2S-99.)

Plaintiff seeks nominal,

711 compensatory, and punitive damages, as well as costs. (Id." 100-104.)
Plaintiff has not prepaid the $3S0 filing fee mandated by 28 U.S.C. § 1914(a); instead he

811

911 has filed two separate Motions to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C.
10 II § 1915(a) (ECF Nos. 2, 6).

11111.

MOTIONS TO PROCEED IFP

12 II

All parties instituting any civil action, suit or proceeding in a district court of the United

13 II States, except an application for writ of habeas corpus, must pay a filing fee of $3S0. See 28
14 II U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only
15 II ifhe is granted leave to proceed IFP pursuantto 28 U.S.C. § 1915(a). See Rodriguezv. Cook, 169
16" F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed IFP remains
17 II obligated to pay the entire fee in installments, regardless of whether his action is ultimately
1811 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844,847 (9th Cir.
1911 2002).
20 II

Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a

21 II prisoner seeking leave to proceed IFP must submit a "certified copy of the trust fund account
22 II statement (or institutional equivalent) for the prisoner for the six-month period immediately
23 II preceding the filing ofthe complaint." 28 U.S.c. § 1915(a)(2);Andrews v. King, 398 F.3d 1113,
2411 1119 (9th Cir. 200S). From the certified trust account statement, the Court must assess an initial
25 II payment of20% of(a) the average monthly deposits in the account for the past six months, or (b)
26 II the average monthly balance in the account for the past six months, whichever is greater, unless
2711 the prisoner has no assets. See 28 U.S.C. § 1915(b)(1);28U.S.C. § 1915(b)(4). The institution
28 II having custody of the prisoner must collect subsequent payments, assessed at 20% of the

l:\Everyonel_EFILE-PROSE\WQH\12cv2642-grt-IFP&se",•. wpd

2

12cv2642 WQH (WVG)

111 preceding month's income, in any month in which the prisoner's account exceeds $10, and
2 II forward those payments to the Court until the entire filing fee is paid.

See 28 U.S.C.

3 II § 1915(b}(2).

4 II

In support ofhis IFP Motions, Plaintiff has submitted a certified copy of his trust account

5 II statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIvLR 3.2. Andrews, 398 F.3d at
6 II 1119. While Plaintiffhad an average monthly balance of$14.17 and an average monthly deposits
7 II of $8.33 credited to his account during the 6-month period immediately preceding the filing

0

8 II this action, his trust account statement further shows a current available balance of zero. See 28
911 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited from bringing
10 II a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has
11 II no assets and no means by which to pay [an] initial partial filing fee."); Taylor, 281 F.3d at 850
1211 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal ofa prisoner's
13 II IFP case based solely on a "failure to pay ... due to the lack of funds available."}.

1411

Therefore, the Court GRANTS Plaintiffs Motions to Proceed IFP (ECF Nos. 2, 6), and

15 II assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(I). However, the entire $350 balance
1611 of the filing fees mandated shall be collected and. forwarded to the Clerk of the Court pursuant
17 II to the installment payment provisions set forth in 28 U .S.C. § 1915(b)(1).

§§ 1915(e)(2) & 1915A(b)

1811 II.

SCREENING PURSUANT TO 28 U.S.C.

1911

The PLRA also obligates the Court to review complaints filed by all persons proceeding

20 II IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused
21 II of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or
22 II conditions ofparole, probation, pretrial release, or diversionary program," "as soon as practicable
23 II after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions of the
24 II PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are
25 II frivolous, malicious, fail to state a claim, or which seek damages from defendants who are
2611 immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27
2711 (9th Cir. 2000) (en banc) (§ 1915(e)(2»; Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
28 II 2010) (discussing 28 U.S.C. § 1915A(b».

!:\Everyone,-EFILE-PROSElWQHlI2cv2642-gn.JFP&serve.wpd

3

12cv2642 WQH (WVG)

1 II

"[W]hen detennining whether a complaint states a claim, a court must accept as true all

2 II allegations of material fact and must construe those facts in the light most favorable to the
3 II plaintiff." Resnickv. Hayes, 213 F.3d 443,447 (9th Cir. 2000); see also Barren v. Harrington,
4 II 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) "parallels the language ofFederal
5 II Rule of Civil Procedure 12(b)(6)"). In addition, courts "have an obligation where the petitioner
6 II is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the
711 petitioner the benefit of any doubt." Hebbe v. Pliler, 627 F.3d 338,342 & n.7 (9th Cir. 2010)
8 II (citing Bretz v. Kelman, 773 F .2d 1026, 1027 n.1 (9th Cir. 1985)). The court may not, however,
9 II "supply essential elements ofclaims that were not initially pled." Ivey v. Board ofRegents ofthe
10 II University ofAlaska, 673 F.2d 266,268 (9th Cir. 1982). "Vague and conclusory allegations 0

11 II official participation in civil rights violations are not sufficient to withstand a motion to dismiss."
12 II Id.

13 II

As currently pleaded, the Court finds Plaintiffs allegations sufficient to survive the sua

1411 sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).1 See Lopez, 203 F.3d at
15 II 1126-27. Accordingly, the Court finds Plaintiffis entitled to U.S. Marshal service on his behalf.

1611 See 28 U.S.C. § 1915(d) ("The officers ofthe court shall issue and serve all process, and perfonn

17 II all duties in [IFP] cases."); FED.R.Clv.P. 4(c)(3) ("[T]he court may order that service be made
18 II by a United States marshal or deputy marshal ... ifthe plaintiff is authorized to proceed informa
19 II pauperis under 28 U.S.C. § 1915.").
20 II III.

CONCLUSION AND ORDER

21 II

Good cause appearing therefor, IT IS HEREBY ORDERED that:

22 II

1.

Plaintiffs Motions to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Nos. 2,

23 II 6) are GRANTED.
24

2.

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

25 II his designee, shall collect from Plaintiffs prison trust account the $350 filing fee owed in this

26 II case by collecting monthly payments from the account in an amount equal to twenty percent
27
I Plaintiffis cautioned that "the sua sponte screening and dismissal procedure is cumulative of,
28 II 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).

I:lEveryonel_EFILE.PROSEIWQHl12cv2642·grt·IFP&serve.wpd

4

12cv2642 WQH (WVG)

1 II (20%) ofthe preceding month's income and forward payments to the Clerk ofthe Court each time
211 the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL
3/1 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER
4 II ASSIGNED TO THIS ACTION.
5 II

3.

The Clerk ofthe Court is directed to serve a copy ofthis Order on Jeffrey A. Beard

611 Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883,
7 II Sacramento, California, 94283-0001.
8 II

IT IS FURTHER ORDERED that:

911

4.

The Clerk shall issue a summons as to Plaintiff's Complaint (ECF No.1) upon

10 II Defendants and shall and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for
11 II each Defendant. In addition, the Clerk shall provide Plaintiff with a certified copy ofthis Order
1211 and a certified copy of his Complaint (ECF No. 1), all Exhibits filed in Support (ECF Nos. 1-1,

13 II 1-2 and 4), and the summons so that he may serve each named Defendant. Upon receipt of this
1411 "IFP Package," Plaintiff is directed to complete the Form 285s as completely and accurately as
15 II possible, and to return them to the United States Marshal according to the instructions provided
1611 by the Clerk in the letter accompanying his IFP package. Upon receipt, the U.S. Marshal shall
17 II serve a copy of the Complaint and summons upon each Defendant as directed by Plaintiff on the
1811 USM Form 285s. All costs of service shall be advanced by the United States. See 28 U.S.C.
1911 § I9I5(d); FED.R.CIV.P. 4(c)(3).
20 II

5.

Defendants are thereafter ORDERED to reply to Plaintiff's Complaint within the

2111 time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42
22 II U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to "waive the right to
23 II reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility
24 II under section 1983," once the Court has conducted its sua sponte screening pursuant to 28 U .S.C.
25 II § I9I5(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the face
2611 on the pleading alone that Plaintiff has a "reasonable opportunity to prevail on the merits," the
27 II defendant is required to respond).
28 II / / /

J:lEveryonel_EFILE-PROSE\WQH\12cv2642-grt-lFP&serve.wpd

5

12cv2642 WQH (WVG)

1

6.

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

2 II counsel, upon Defendants' counsel, a copy ofevery further pleading or other document submitted

3 II for consideration ofthe Court. Plaintiffshall include with the original paper to be filed with the

4 II Clerk of the Court a certificate stating the manner in which a true and correct copy of any

5 II document was served on Defendants, or counsel for Defendants, and the date of service. Any

6 II paper received by the Court which has not been filed with the Clerk or which fails to include a

7 II Certificate of Service will be disregarded.

8

911
10

DATED:

1M2

HON. WILLIAM Q....lIAYES
United States Distr~ Judge

11

12

13

14

15
16

17

18

19

20
21

22

23

24

25
26

27

28

1:lEveryone\_EFILE-PROSEIWQH\12cv2642-grt-IFP&serve.wpd

6

12cv2642 WQH (WVG)