Arellano, Jr. v. San Diego, County of et al

Filing 3

ORDER: (1) Granting 2 Motion for Leave to Proceed in forma pauperis and (2) Directing US Marshal shall effect service of complaint. Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2) is granted. The Secr etary CDCR, or his designee, is ordered to collect from prison 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 inco me 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). The Clerk is diredcted to issue a summons as to Plaintiff's Complaint (ECF Do c. No. 1) upon Defendants and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant. Plaintiff is directed to complete the Form 285s as completely and accurately as possible, and to return them to the United States Mar shal according to the instructions provided by the Clerk in the letter accompanying his IFP package. Upon receipt, the U.S. Marshal is ordered to serve a copy of the Complaint and summons upon each Defendant as directed by Plaintiff on the USM F orm 285s. Defendants are thereafter ordered to reply to Plaintiffs Complaint within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). Signed by Judge Janis L. Sammartino on 11/3/2014. (Order electronically transmitted to Secretary of CDCR) (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Civil No. 14-CV-2404 JLS (KSC)

RAUL ARELLANO, JR.,
CDCR #AH-1995,
Plaintiff,

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vs.

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COUNTY OF SAN DIEGO; GUERRERO
BAIL BOND; OFFICER GUERRERO;
VIOLENT CRIME TASK FORCE,

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ORDER:(1) GRANTING
MOTION TO PROCEED IN
FORMA PAUPERIS [ECF Doc.
No. 2]; AND (2) DIRECTING
U.S. MARSHAL TO EFFECT
SERVICE OF COMPLAINT
PURSUANT TO
FED.R.CIV.P. 4(c)(3) AND
28 U.S.C. § 1915(d

Defendants.

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Raul Arellano, Jr. (“Plaintiff”), who is currently incarcerated at the Richard J.
Donovan Correctional Facility in San Diego, California, and proceeding pro se, has filed
a civil rights complaint (“Compl.) pursuant to 42 U.S.C. § 1983 (ECF Doc. No. 1).

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Plaintiff did not prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the

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time he filed his Complaint; instead he has filed a Motion to Proceed IFP (ECF Doc. No.

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2).

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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 assesses an initial payment of 20% of (a) the average

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

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

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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution

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having custody of the prisoner then collects subsequent payments, assessed at 20% of

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the preceding month’s income, in any month in which the prisoner’s account exceeds

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$10, and forwards those payments to the Court until the entire filing fee is paid. See 28

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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,
28 2013). However, the additional $50 administrative fee is waived if the plaintiff is
granted leave to proceed IFP. Id.
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as well as the attached prison certificate verifying his available balances. Plaintiff’s

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statements show he has insufficient funds in his prisoner trust account during the 6-

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month period preceding the filing of this action, and no available funds from which to

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pay any initial partial filing fee at this time. 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

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civil action or criminal judgment for the reason that the prisoner has no assets and no

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

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that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s

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

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when payment is ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF Doc. No.

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

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entire $350 balance of the filing fees mandated will be collected by the California

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Department of Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of

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the Court pursuant to the installment payment provisions set forth in 28 U.S.C.

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§ 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 review of complaints filed by all persons proceeding IFP,

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and by those, like Plaintiff, who are “incarcerated or detained in any facility [and]

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accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the

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terms or conditions of parole, probation, pretrial release, or diversionary program,” “as

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soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under

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these statutes, the Court must sua sponte dismiss complaints, or any portions thereof,

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which are frivolous, malicious, fail to state a claim, or which seek damages from

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defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez, 203

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F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

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

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true all allegations of material fact and must construe those facts in the light most
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favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also

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

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“parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, courts

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

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construe the pleadings liberally and to afford the petitioner the benefit of any doubt.”

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

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

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

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University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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As currently pleaded, the Court finds Plaintiff’s Complaint 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

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Accordingly, the Court will direct the U.S. Marshal to effect service on Plaintiff’s behalf.

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See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and

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perform all duties in [IFP] cases.”); FED.R.CIV.P. 4(c)(3) (“[T]he court may order that

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service be made by a United States marshal or deputy marshal . . . if the plaintiff is

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authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).

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IV.

CONCLUSION AND ORDER

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Good cause appearing, 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

Doc. No. 2) is GRANTED.
2.

The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s

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prison trust account the $350 filing fee owed in this case by collecting monthly payments

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

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

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

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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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SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED

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TO THIS ACTION.

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3.

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

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

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942883, Sacramento, California, 94283-0001.

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IT IS FURTHER ORDERED that:

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4.

The Clerk is DIRECTED to issue a summons as to Plaintiff’s Complaint

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(ECF Doc. No. 1) upon Defendants and forward it to Plaintiff along with a blank U.S.

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Marshal Form 285 for each Defendant. In addition, the Clerk is DIRECTED provide

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Plaintiff with a certified copy of this Order and a certified copy of his Complaint and the

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

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Package,” Plaintiff is DIRECTED to complete the Form 285s as completely and

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

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instructions provided by the Clerk in the letter accompanying his IFP package. Upon

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receipt, the U.S. Marshal is ORDERED to serve a copy of the Complaint and summons

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upon each Defendant as directed by Plaintiff on the USM Form 285s. All costs of

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service will be advanced by the United States. See 28 U.S.C. § 1915(d); FED.R.CIV.P.

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4(c)(3).

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5.

Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint

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within the time provided by the applicable provisions of Federal Rule of Civil Procedure

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

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

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prison, or other correctional facility under section 1983,” once the Court has conducted

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

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has made a preliminary determination based on the face on the pleading alone that

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Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is required

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to respond).

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6.

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 by 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 the document was served on Defendants, or counsel for

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

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been filed with the Clerk, or which fails to include a Certificate of Service, will be

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disregarded.

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IT IS SO ORDERED.
DATED: November 3, 2014
Honorable Janis L. Sammartino
United States District Judge

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