Jeter v. National City Police Officer et al

Filing 10

ORDER: (1)granting 9 Plaintiff's Motion to Proceed in forma pauperis and (2) directing U.S. Marshal to effect service of First Amended Complaint. U.S. Marshal shall effect service of complaint. The Watch Commander of GBDF, or his designee, will forward the $350 total filing fee owed in this matter by collecting monthly payments from Plaintiffs account in an amount equal to twenty percent (20%) of the preceding months income and shall forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). Signed by Judge Anthony J. Battaglia on 9/12/14. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SHAUN JETER,
Inmate No. 14725460,

Civil No.
Plaintiff,

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vs.

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ORDER:
(1) GRANTING PLAINTIFF’S
MOTION TO PROCEED IN
FORMA PAUPERIS
[Doc. No. 9]

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AND
NATIONAL CITY POLICE CHIEF;
JOHN DOES 1-10, Police Officers;
JOHN DOES 1-5 Medical Personnel;
JANE DOES 1-10, Medical Personnel,

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

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Defendants.

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Shaun Jeter (“Plaintiff”), who is currently incarcerated at the George Bailey

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Detention Facility (“GBDF”) in San Diego, California, and proceeding pro se, has filed

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a civil rights complaint (“Compl.) pursuant to 42 U.S.C. § 1983 (Doc No. 1). Before the

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Court could conduct the required screening, Plaintiff filed a First Amended Complaint

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(“FAC”) which is now the operative pleading. In addition, Plaintiff has filed a Motion

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to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No. 9).

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I.

MOTION TO PROCEED IFP

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

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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

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

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

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§ 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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

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

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

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month period immediately preceding the filing of the complaint.”

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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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trust account statement, the Court must assess an initial payment of 20% of (a) the

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

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monthly balance in the account for the past six months, whichever is greater, unless the

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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

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20% of the preceding month’s income, in any month in which the prisoner’s account

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exceeds $10, and 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).

28 U.S.C.

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

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

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Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement,

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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,
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leave to proceed IFP. Id.
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as well as the attached prison certificate issued by a Sheriff’s Department Deputy at

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GBDF verifying his available balances, and has determined that Plaintiff has insufficient

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funds to pay an initial partial filing fee. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n

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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

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by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28

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U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case

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based solely on a “failure to pay . . . due to the lack of funds available to him when

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payment is ordered.”).

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The Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 2) and assesses

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

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of the filing fees mandated will 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.

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

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The PLRA also requires that the Court review complaints filed by all persons

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

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

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

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diversionary program,” “as soon as practicable after docketing.”

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

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

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

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

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

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(discussing 28 U.S.C. § 1915A(b)).

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See 28 U.S.C.

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As currently pleaded, the Court finds Plaintiff’s pleading is sufficient to survive

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

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the Court will direct U.S. Marshal service on Plaintiff’s behalf. See 28 U.S.C. § 1915(d)

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(“The officers of the court shall issue and serve all process, and perform all duties in

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[IFP] cases.”); FED.R.CIV.P. 4(c)(3) (“[T]he court may order that service be made by a

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United States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in

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forma pauperis under 28 U.S.C. § 1915.”).

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III.

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CONCLUSION AND ORDER
Good cause appearing, IT IS HEREBY ORDERED that:
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Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (Doc. No.

9) is GRANTED.
2.

The Watch Commander of GBDF, or his designee, will forward the $350

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total filing fee owed in this matter by collecting monthly payments from Plaintiff’s

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account in an amount equal to twenty percent (20%) of the preceding month’s income

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and shall forward payments to the Clerk of the Court each time the amount in the account

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exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE

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CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS

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ACTION.

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3.

The Clerk of the Court is directed to serve a copy of this Order on the Watch

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Commander, George Bailey Detention Facility, 446 Alta Rd., Suite 5300, San Diego,

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California, 92158-0002.

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IT IS FURTHER ORDERED that:

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4.

The Clerk will issue a summons as to Plaintiff’s First Amended Complaint (Doc. No. 4)

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upon Defendants and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each

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Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of this Order and a certified

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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(b)(6) motion that [a
28 defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D.
Cal. 2007).
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copy of his First Amended Complaint (Doc. No. 4) and the summons so that he may

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serve each named Defendant. Upon receipt of this “IFP Package,” Plaintiff is directed

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to complete the Form 285s as completely and accurately as possible, and to return them

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to the United States Marshal according to the instructions provided by the Clerk in the

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letter accompanying his IFP package. Upon receipt, the U.S. Marshal will serve a copy

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of the Complaint and summons upon each Defendant as directed by Plaintiff on the USM

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Form 285s. All costs of service will 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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Plaintiff must serve upon the Defendants or, if appearance has been entered

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by counsel, upon Defendants’ counsel, a copy of every further pleading or other

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document submitted for consideration of the Court. Plaintiff must include with the

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original paper to be filed with the Clerk of the Court a certificate stating the manner in

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which a true and correct copy of any document was served on Defendants, or counsel for

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Defendants, and the date of service. Any paper received by the Court which has not been

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

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DATED: September 12, 2014

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Hon. Anthony J. Battaglia
U.S. District Judge

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