Florence v. Paramo et al

Filing 4

ORDER: (1) Granting Plaintiff's Motion 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) (Re Doc. 3 ) And (2) Directing U.S. Mars hal 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 collecting 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 5/12/2014. (IFP package prepared; Order electronically transmitted to Secretary of CDCR, and mailed to Secretary of CDCR per Order.) (mdc)

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DISTRICT COURT

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DEPUTY

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAMES E. FLORENCE,
CDCR #P-05118,

Civil No.
Plaintiff,

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MOTION 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 No.3]

vs.

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ORDER:
(1) GRANTING PLAINTIFF'S

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DANIEL PARAMO; S.A. SANCHEZ;
LARA; DR. CASIAN; K. SEELEY;
M.GLYNN,

AND

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Defendants.

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(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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James E. Florence ("Plaintiff'), a prisoner currently incarcerated at the Richard J. Donovan

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Correctional Facility located in San Diego, California, and proceeding in pro se, has filed a civil

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rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff has not prepaid the $350 filing fee

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mandated by 28 U.S.C. § 19l4(a); instead he has filed a certified copy of his inmate trust account

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statement which the Court has construed as a Motion to Proceed In Forma Pauperis ("IFP")

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pursuant to 28 U.S.C. § 19l5(a) (ECF No.3).

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I.

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MOTIONS TO PROCEED IFP

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

3 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28
4 U.S .C. § 1914(a). An action may proceed despite a plaintiff s failure to prepay the entire fee only
5 ifhe is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169
6 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed IFP remains
7 obligated to pay the entire fee in installments, regardless of whether his action is ultimately
8 dismissed. See 28 U.S.C. § 1915(b)(I) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.
9 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

12 statement (or institutional equivalent) for the prisoner for the six-month period immediately
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preceding the filing ofthe 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

15 payment of20% of (a) the average monthly deposits in the account for the past six months, or (b)
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the average monthly balance in the account for the past six months, whichever is greater, unless

17 the prisoner has no assets. See 28 U.S.C. § 1915(b)(l);28 U.S.C. § 1915(b)(4). Theinstitution
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having custody of the prisoner must collect subsequent payments, assessed at 20% of the

19 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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See 28 U.S.C.

§ 1915(b)(2).

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Plaintiffhas submitted a certified copy of his trust account statement pursuant to 28 U.S.C.

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§ 1915(a)(2) and S.D. CAL. ClvLR 3.2. Andrews, 398 F.3d at 1119. Plaintiffs trust account

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statement shows a current available balance ofzero. See 28 U.S.C. § 1915(b)(4) (providing that

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"[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil

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action or criminal judgment for the reason that the prisoner has no assets and no means by which

27 to pay [an] initial partial filing fee."); Taylor, 281 F.3d at 850 (finding that 28 U.S.C.
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§ 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely

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1 on a "failure to pay ... due to the lack of funds available.").
Therefore, the Court GRANTS Plaintiffs Motion to Proceed IFP (ECF No.3), and

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3 assesses no initial partial filing fee per 28 U.S.C. § 19l5(b)(1). However, the entire $350 balance
4 of the filing fees mandated shall be collected and forwarded to the Clerk of the Court pursuant
5 to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
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II.

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SCREENING PURSUANT TO

28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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

8 IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused
9 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or
10 conditions ofparole, probation, pretrial release, or diversionary program," "as soon as practicable
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after docketing." See 28 U.S.C. §§ 1915(e)(2) and 19l5A(b). Under these provisions of the

12 PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are
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frivolous, malicious, fail to state a claim, or which seek damages from defendants who are

14 immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27
15 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
16 2010) (discussing 28 U.S.C. § 1915A(b)).
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"[W]hen determining whether a complaint states a claim, a court must accept as true all

18 allegations of material fact and must construe those facts in the light most favorable to the
19 plaintiff." Resnickv. 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, 627 F.3d 338,342 & n.7 (9th Cir. 2010)

24 (citing Bretz v. Kelman, 773 F .2d 1026, 1027 n.1 (9th Cir. 1985)). The court may not, however,
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"supply essential elements of claims that were not initially pled." Ivey v. Board ofRegents ofthe

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University ofAlaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations 0

27 official participation in civil rights violations are not sufficient to withstand a motion to dismiss."
28 Id.

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

2 sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(bV 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.

4 See 28 U.S.C. § 1915(d) ("The officers of the court shall issue and serve all process, and perform
5 all duties in [IFP] cases."); FED.R.CIV.P. 4(c)(3) ("[T]he court may order that service be made
6 by a United States marshal or deputy marshal ... ifthe plaintiffis authorized to proceed informa
7 pauperis under 28 U.S.C. § 1915.").
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III.

CONCLUSION AND ORDER

Good cause appearing therefor, IT IS HEREBY ORDERED that:
1.

Plaintiffs Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)(ECF No.3) is

GRANTED.

2.

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

his designee, shall collect from Plaintiff s prison trust account the $350 filing fee owed in this

14 case by collecting monthly payments from the account in an amount equal to twenty percent
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(20%) of the preceding month's income and forward payments to the Clerk ofthe Court each time

16 the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL
17 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER
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ASSIGNED TO THIS ACTION.

3.

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

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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 Plaintiffs Complaint (ECF No.1) upon

24 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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a certified copy of his Complaint (ECF No. I), and the summons so that he may serve each named

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I Plaintiff is cautioned that "the sua sponte screening and dismissal procedure is cumulative of,
and not a substitute for, any subsequent Ru1e 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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1 Defendant. Upon receipt ofthis "IFP Package," Plaintiff is directed to complete the Form 285s
2 as completely and accurately as possible, and to return them to the United States Marshal
3 according to the instructions provided by the Clerk in the letter accompanying his IFP package.
4 Upon receipt, the U.S. Marshal shall serve a copy of the Complaint and summons upon each
5 Defendant as directed by Plaintiff on the USM Form 285s. All costs of service shall be advanced
6 by the United States. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3).
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5.

Defendants are thereafter ORDERED to reply to Plaintiffs Complaint within the

8 time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42
9 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to "waive the right to
10 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 pursuantto 28 U.S.C.

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§ 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the face

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on the pleading alone that Plaintiff has a "reasonable opportunity to prevail on the merits," the

14 defendant is required to respond).
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6.

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

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

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DATED:

02.d,L

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