Roberts v. Beard et al

Filing 4

ORDER (1) Granting Plaintiff's Motion To Proceed In Forma Pauperis (Re Doc. 2 ) And (2) Directing U.S. Marshal To Effect Service Of Summons And Complaint: The Secretary CDCR, or his designee, shall collect from Plaintiff's prison trust acc ount 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 5/21/2015. (IFP package prepared; Order electronically transmitted to Secretary of CDCR.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 15-CV-I044-WQH (PCL)
Tony Roberts
C-95215,

ORDER:
Plaintiff,

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vs.
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J. BEARD; D. PARAMO; K. SEIBEL;
CAPTAIN SANCHEZ; D. ARGUILEZ; L.
CIBOROWSKI; A. BUENROSTRO,
Defendants.

1) GRANTING PLAINTIFF'S
MOTION TO PROCEED IN FORMA
PAUPERIS PURSUANT TO 28 U.S.C.
§ 1915(a) (ECF No.2)
AND
2) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE OF SUMMONS
AND COMPLAINT PURSUANT TO
28 U.S.C. § 1915(d)
...
AND Fed.R.Civ.P. 4(c)(3)

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Tony Roberts ("Plaintiff'), currently incarcerated at Richard J. Donovan

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

15-CV-I044-WQH (PCL)

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1 civil rights complaint ("Compl.") pursuantto 42U.S.C. § 1983 (ECF No.1).
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Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a);

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instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28

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U.S.C. § 1915(a) (ECF No.2).

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II.

Plaintiff's 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 plaintiffs failure to

9 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 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F .3d 1176, 1177 (9th Cir. 1999). However, if a prisoner, like Plaintiff, is

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granted leave to proceed IFP, he remains obligated to pay the entire fee in "increments,"

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regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) &

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(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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17 trust fund account statement (or institutional equivalent) for the prisoner for the six­
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1 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

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15-CV-1044-WQH (PCL)

1 month period immediately preceding the filing of the complaint."
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28 U.S.C. §

1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 200S). From the certified

3 trust account statement, the Court assesses an initial payment of 20% of (a) the average
4 monthly deposits in the account for the past six months, or (b) the average monthly
S balance in the account for the past six months, whichever is greater, unless the prisoner
6 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution
7 having custody of the prisoner then collects subsequent payments, assessed at 200/0 of the
8 preceding month's income, in any month in which the prisoner's account exceeds $10,
9' and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C.
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§ 1915(b)(2).

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

12 trust 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 Plaintiffs trust account statement,

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but it shows that he has a current available balance of zero. See 28 U.S.C. § 1915(b)(4)

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(providing that "[i]n no event shall a prisoner be prohibited from bringing a civil action

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assets and no means by which to pay the initial partial filing fee."); Taylor, 281 F ~d at

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850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of

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a prisoner's IFP case based solely on a "failure to pay ... due to the lack of funds

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available to him when payment is ordered.").
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15-CV-I044-WQH (PCL)

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Therefore, the Court GRANTS Plaintiffs Motion to Proceed IFP (ECF No.2) and

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

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balance of the filing fees mandated will be collected by the California Department of

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Corrections and Rehabilitation ("CDCR") 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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Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A

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III.

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Notwithstanding Plaintiffs IFP status or the payment of any partial filing fees, the

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

9. 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(b); Lopez v.

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

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Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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All complaints must contain "a short and plain statement of the claim showing that

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the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are

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not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by
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15-CV-1044-WQH (PCL)

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1 mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
2 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

"Determining

3 whether a complaint states a plausible claim for relief [is] ... a context-specific task that
4 requires the reviewing court to draw on its judicial experience and common sense." Id.
5 The "mere possibility of misconduct" falls short of meeting this plausibility standard.
6 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

"When there are well-pleaded factual allegations, a court should assume

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8 their veracity, and then determine whether they plausibly give rise to an entitlement to
9' relief." Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.
10 2000) ("[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."); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)

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(noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure

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12(b)(6)").

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However, while the court "ha[s] an obligation where the petitioner is pro se,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the

17 petitioner the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9tb Cir.
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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.l (9th Cir. 1985)), it may not

19 "supply essential elements of claims that were not initially pled." Ivey v. Board of
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Regents ofthe University ofAlaska, 673 F.2d 266, 268 (9th Cir. 1982).
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15-CV-I044-WQH (PCL)

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As currently pleaded, the Court finds allegations in Plaintiff s Complaint which are

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sufficient to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and

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1915A(b). Accordingly, the Court will direct the U.S. Marshal to effect service on

4 Plaintiffs behalf. See 28 U.S.C. § 1915(d) ("The officers of the court shall issue and
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serve all process, and perform all duties in [IFP] cases."); Fed.R.Civ.P. 4(c)(3) ("[T]he

6 court may order that service be made by a l!nited States marshal or deputy marshal ... if
7 the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.").
8 III. Conclusion and Order
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Good cause appearing, IT IS HEREBY ORDERED that:
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Plaintiffs Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No.

2) is GRANTED.
2.

The Secretary of the CDCR, or his designee, shall collect from Plaintiffs

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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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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 A.

Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. Box
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15-CV-I044-WQH (PCL)

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942883~

Sacramento, California, 94283-0001.

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IT IS FURTHER ORDERED that:

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The Clerk is DIRECTED to issue a summons as to Plaintiffs Complaint

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

5 Form 285s for each named Defendant. In addition, the Clerk is directed to provide
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Plaintiff with a certified copy of this Order and a certified copy of his Complaint (ECF

7 No.1) and the summons so that he may serve each named Defendant. Upon receipt of
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this "IFP Package," Plaintiff is directed to complete the Form 285s as completely and

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possible~

and to return them to the United States Marshal according to the

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

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Upon receipt, the U.S. Marshal is ORDERED to serve a copy of the

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Complaint and summons upon the named Defendants 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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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 to

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

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

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sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made
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15-CV-I044-WQH (PCL)

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a preliminary determination based on the face of the pleading alone that Plaintiff has a
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"reasonable opportunity to prevail on the merits," the defendant is required to respond).

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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 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 the Defendants, or counsel

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for Defendants, and the date of that service. Any paper received by the Court which has

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not been properly filed with the Clerk, or which fails to include a Certificate of Service,

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may be disregarded.

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IT IS SO ORDERED.
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Date:

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I~//r//
Hon. WILLIAM Q.
United States District Judge

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15-CV-I044-WQH (PCL)