Murillo v. Taylor et al

Filing 9

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) (Doc. 4 ); And (2) Directing U.S. Marsha l 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 mo nthly 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 Ju dge William Q. Hayes on 5/27/2014. (IFP package prepared and sent to pro se plaintiff via U.S. Mail Service; Order electronically transmitted to Secretary of CDCR; copy of Order also sent to Secretary of CDCR by U.S. Mail to address indicated in Order.) (mdc)

FILED

1

2

MAY 2 9 201~

3

C~ERII, ,;
SOUT!'iERN CIS

BY

4

5

6

7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

RAMON MURILLO
CDCR #P-43503, '

Civil
No.
Plaintiff,

13

15

vs.

17

18
19

20

T. TAYLOR; RUCKER; OWENS;
E. SOLIS.,i J. CEDANO ' J. ELIAS;
R. DAVI~; R. COBB; IV
ES;
M.JANNUSH,

21

Defendants.

22

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. § 1915(a)
[ECF No.4]; AND

14

16

14cv0876 WQH (WVG)

(2) DIRECTING U.S.
MARSHAL TO EFFECT
SERVICE OF COMPLAINT
PURSUANT TO
FED.R.Clv.P. 4(c)(3) &
28 U.S.C. § 191~(d)

23

24

Ramon Murillo ("Plaintiff'), a prisoner currently incarcerated at the California

25

Substance Abuse Treatment Facility located in Corcoran, California, and proceeding in

26 pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges
27

his constitutional rights were violated when he was previously housed at the Richard J.

28

Donovan Correctional Facility. (See CompI. at 1.)
I:\Everyonel_EFJLE..PROSEIWQID14cv0876-grt IFP &. serve.wpd

1

14cv0876 WQH (WVG)

1

Plaintiffhas not prepaid the $350 filing fee, along with the $50 administrative fee,

2

mandated by 28 U.S.C. § 1914(a); instead he has filed a Motion to Proceed In Forma

3 Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF No. 2)~
4
5
6

I.

MOTIONS TO PROCEED IFP

All parties instituting any civil action, suit or proceeding in a district court ofthe
United States, except an application for writ of habeas corpus, must pay a filing fee

0

7 $350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to
8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
9

§ 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a

10

prisoner granted leave to proceed IFP remains obligated to pay the entire fee in

11

installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C. §

12

1915(b)(l) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

13

Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act

14

("PLRA"), a prisoner seeking leave to proceed IFP must submit a "certified copy of the

15

trust fund account statement (or institutional equivalent) for the prisoner for the six-month

16

period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2);

17

Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account

18

statement, the Court must assess an initial payment of 20% of (a) the average monthly

19

deposits in the account for the past six months, or (b) the average monthly balance in the

20

account for the past six months, whichever is greater, unless the prisoner has no assets.

21

See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 0

22

the prisoner must collect subsequent payments, assessed at 20% ofthe preceding month's

23

income, in any month in which the prisoner's account exceeds $10, and forward those

24

payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

25

In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust

26

account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. ClvLR 3.2.

27 Andrews, 398 F.3d at 1119. Plaintiffs trust account statement shows a current available
28

balanceofzero. See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner
1:lEv.ryon.I_EFII..E.PROSE\WQHlI4ev0876.grt IFP 8/; serve.wpd

2

14cv0876 WQH (WVG)

1

be prohibited from bringing a civil action or appealing a civil action or criminal judgment

2

for the reason that the prisoner has no assets and no means by which to pay [an] initial

3

partial filing fee."); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as

4

a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure

5 to pay ... due to the lack of funds available.").
6

Therefore, the Court GRANTS Plaintiffs Motion to Proceed IFP (ECF No.4), and

7

assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350

8 balance of the filing fees mandated shall be collected and forwarded to the Clerk of the
9 Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
10

II.

SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

11

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

12

proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any

13

facility [and] accused of, sentenced for, or adjudicated delinquent for, violations

14

criminal law or the terms or conditions of parole, probation, pretrial release, or

15

diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§

16

1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court must sua

17

sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail

18

to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C.

19

§§ 1915(e)(2)(B) and 1915A; Lopezv. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en

20

banc) (§ 1915(e)(2»; Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

21

(discussing 28 U.S.C. § 1915A(b».

0

22

"[W]hen determining whether a complaint states a claim, a court must accept as

23

true all allegations of material fact and must construe those facts in the light most

24

favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443,447 (9th Cir. 2000); see also

25

Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2)

26

"parallels the language ofFederal Rule ofCivil Procedure 12(b)(6)"). In addition, courts

27

"have an obligation where the petitioner is pro se, particularly in civil rights cases, to

28

construe the pleadings liberally and to afford the petitioner the benefit of any doubt."
I: IEveryonel_EFILE-PROSEIWQHl14cv0876-srt IFP & ......e. wpd

3

14cv0876 WQH (WVG)

1

Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773

2

F.2d 1026, 1027 n.1 (9th Cir. 1985)). The court may not, however, "supply essential

3

elements of claims that were not initially pled." Ivey v.Board of Regents of the

4 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory
5

allegations ofofficial participation in civil rights violations are not sufficient to withstand

6

a motion to dismiss." Id.

7

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

8 sua sponte screening required by 28 U.S.C. §§ 1915(e )(2) and 1915A(b).1 See Lopez, 203
9

F.3dat 1126-27. Accordingly, the Court finds Plaintiffis entitled to U.S. Marshal service

10

on his behalf. See 28 U.S.C. § 1915(d) ("The officers of the court shall issue and serve

11

all process, and perform all duties in [IFP] cases."); FED.R.Clv.P. 4(c)(3) ("[T]he court

12

may order that service be made by a United States marshal or deputy marshal ... if the

13

plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.").

14

III. CONCLUSION AND ORDER

15

Good cause appearing therefor, IT IS HEREBY ORDERED that:

16

1.

17
18

Plaintiffs Motion to Proceed IFPpursuantto28 U.S.C. § 1915(a) (ECF No.

4) is GRANTED.

2.

The Secretary of the California Department of Corrections and

19

Rehabilitation, or his designee, shall collect from Plaintiffs prison trust account the $350

20

filing fee 2 owed in this case by collecting monthly payments from the account in an

21

amount equal to twenty percent (20%) of the preceding month's income and forward

22

payments to the Clerk of the Court each time the amount in the account exceeds $10 in

23
24
25

26
27
28

I 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).
2 In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013,
must pay an additional administrative fee of $50. See 28 U.S.C. § 1914{a) (Judicial Conference
Schedule of Fees, District Court Misc. Fee Schedule) (eff. May 1,2013). However, the additional $50
administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id

l:lEveryonel_EFILE-PROSEIWQHlI4cv0876-gr! IFP & ,erve,wpd

4

14cv0876 WQH (WVG)

1 accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY
2

3

IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
3.

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

4

Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. Box

5

942883, Sacramento, California, 94283-0001.

6

IT IS FURTHER ORDERED that:

7

4.

8

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

upon Defendants and shall and forward it to Plaintiff along with a blank U.S. Marshal

9 Form 285 for each Defendant. In addition, the Clerk shall provide Plaintiff with a
10

certified copy of this Order, a certified copy of his Complaint (ECF No.1), and the

11

summons so that he may serve each named Defendant. Upon receipt of this "IFP

12 Package," Plaintiff is directed to complete the Form 285s as completely and accurately
13

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

14

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

15

Marshal shall serve a copy of the Complaint and summons upon each Defendant as

16

directed by Plaintiff on the USM Form 285s. All costs of service shall be advanced by

17

the United States. See 28 U.S.C. § 1915(d); FED.R.ClV.P. 4(c)(3).

18

5.

Defendants are thereafter ORDERED to reply to Plaintiff's Complaint

19

within the time provided by the applicable provisions ofFederal Rule ofCivil Procedure

20

12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to

21

"waive the right to reply to any action brought by a prisoner confined in any jail, prison,

22

or other correctional facility under section 1983," once the Court has conducted its sua

23

sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made

24

a preliminary determination based on the face on the pleading alone that Plaintiffhas a

25

"reasonable opportunity to prevail on the merits," the defendant is required to respond).

26

6.

Plaintiff shall serve upon the Defendants or, ifappearance has been entered

27

by counsel, upon Defendants' counsel, a copy ofevery further pleading or other document

28

submitted for consideration ofthe Court. Plaintiff shall include with the original paper
I: IEveryone\_BFILE-PROSE\WQH\14cv0876-grt IFP & serve. wpd

5

14cv0876 WQH (WVG)

1 to be filed with the Clerk ofthe Court a certificate stating the manner in which a true and

2

correct copy ofany document was served on Defendants, or counsel for Defendants, and

3

the date of service. Any paper received by the Court which has notbeen'filed with the

4

Clerk or which fails to include a Certificate of Service will be disregarded.

5
6 DATED:
7

HON. WILLI
Q. HAYES
United States District Judge

8

9
10
11

12
13

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1:lEveryoneU1FlLE-PROSEIWQHl14cvOB76-grI IFP 81. ...-ve.wpd

6

14cv0876 WQH (WVG)