Givens v. Miller et al

Filing 5

ORDER Granting 2 Plaintiff's Motion for Leave to Proceed in forma pauperis; and Directing U.S. Marshal to Effect Service of Summons and Complaint: US Marshal shall effect service of complaint. The Secretary CDCR, or his designee, is ord ered 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 income credited to the account and forw ard payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR). Signed by Judge Gonzalo P. Curiel on 3/14/16. (All non-registered users served via U.S. Mail Service)Order mailed to Scott Kernan. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT LEE GIVENS,
CDCR #H-29884,

Civil No.
Plaintiff,

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vs.

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AND

A. MILLER, et al.,

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ORDER:
1) GRANTING PLAINTIFF’S
MOTION TO PROCEED IN
FORMA PAUPERIS
PURSUANT TO
28 U.S.C. § 1915(a)
[ECF Doc. No. 2]

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15cv2877 GPC (PCL)

Defendants.

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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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Robert Lee Givens (“Plaintiff”), currently incarcerated at Centinela State Prison

24 (“CEN”) in Imperial, California, and proceeding pro se, has filed a civil rights complaint
25 (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF Doc. No. 1).
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Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a);

27 instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28
28 U.S.C. § 1915(a). See ECF Doc. No. 2.
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1 I.

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

3 United States, except an application for writ of habeas corpus, must pay a filing fee of
4 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to
5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez
7 v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave
8 to proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
9 Bruce v. Samuels, __ S. Ct. __, 2016 WL 112684 at *3 (U.S. Jan. 12, 2016) (No. 1410 844); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of
11 whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v.
12 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

14 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of [his]
15 trust fund account statement (or institutional equivalent) for . . . the six-month period
16 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.
17 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement,
18 the Court assesses an initial payment of 20% of (a) the average monthly deposits in the
19 account for the past six months, or (b) the average monthly balance in the account for the
20 past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C.
21 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then
22 collects subsequent payments, assessed at 20% of the preceding month’s income, in any
23 month in which his account exceeds $10, and forwards those payments to the Court until
24 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
25 / / /
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In addition to the $350 statutory fee, civil litigants must pay an additional
administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of
28 Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50
administrative fee does not apply to persons granted leave to proceed IFP. Id.
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In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust

2 account statement, verified by a prison accounting official pursuant to 28 U.S.C.
3 § 1915(a)(2) and S.D. CAL. CIVLR 3.2. See ECF Doc. No. 3; Andrews, 398 F.3d at 1119.
4 Plaintiff’s statement shows that while he has had $50.01 in average monthly deposits,
5 and has carried an average monthly balance of $79.33 in his trust account during the 66 month period preceding the filing of this action, he had a current available balance of
7 zero at the time of filing. Thus, while the Court assesses Plaintiff’s initial partial filing
8 fee at $15.86 pursuant to 28 U.S.C. § 1915(b)(1), it appears he may be unable to pay that
9 initial fee at this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a
10 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal
11 judgment for the reason that the prisoner has no assets and no means by which to pay the
12 initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4)
13 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a
14 “failure to pay . . . due to the lack of funds available to him when payment is ordered.”).
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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF Doc. No.

16 2), and will direct the California Department of Corrections and Rehabilitation
17 (“CDCR”) to collect the entire $350 balance of the filing fees mandated by 28 U.S.C.
18 § 1914 and forward them to the Clerk of the Court pursuant to the installment payment
19 provisions set forth in 28 U.S.C. § 1915(b)(1).
20 III.

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

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A.

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Notwithstanding Plaintiff’s IFP status or the payment of any filing fees, the PLRA

Standard of Review

23 also requires the Court to review complaints filed by all persons proceeding IFP and by
24 those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of,
25 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or
26 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as
27 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these
28 statutes, the Court must sua sponte dismiss any complaint, or any portion of a complaint,
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1 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants
2 who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203
3 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621
4 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

6 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are
7 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
8 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
9 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether
10 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires
11 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere
12 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also
13 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
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“When there are well-pleaded factual allegations, a court should assume their

15 veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
16 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
17 (“[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
19 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that
20 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).
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However, while the court “ha[s] an obligation where the petitioner is pro se,

22 particularly in civil rights cases, to construe the pleadings liberally and to afford the
23 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
24 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not
25 “supply essential elements of claims that were not initially pled.” Ivey v. Board of
26 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
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B.

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Plaintiff claims Defendants, all alleged to be state correctional officials employed

Plaintiff’s Claims

3 at CEN, or appeals officials assigned to the CDCR’s office of inmate appeals, have
4 charged and punished him with repeated and progressively enhanced disciplinary
5 violations for failing to provide urine samples pursuant to the CDCR’s “Random Drug
6 Test Program,” as set forth in Cal. Code Regs., tit. 15, § 3290. See Compl., ECF Doc.
7 No. 1 at 3, 7-26. Plaintiff claims he is unable to supply the ordered samples without some
8 modifications based on his “mental health condition,” which includes an anxiety-related
9 “shy bladder syndrome,” that has been confirmed and documented by his treating
10 doctors. Id. at 8-17. Plaintiff claims Defendants’ refusal to accommodate his condition,
11 and his continued disciplinary punishments “due to his disability” violate the Eighth and
12 Fourteenth Amendments, as well as the Americans with Disabilities Act. Id. at 7, 18, 2413 25. Plaintiff seeks injunctive relief as well as general and punitive damages. Id. at 28-29.
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As currently pled, the Court finds Plaintiff’s Complaint contains constitutional

15 and/or statutory claims which do not appear to be frivolous or malicious, and which may
16 “plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. Therefore,
17 Plaintiff’s allegations are sufficient to overcome the “low threshold” required to survive
18 the Court’s initial sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and
19 1915A(b).2 See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012).
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Accordingly, the Court will direct the U.S. Marshal to effect service of Plaintiff’s

21 Complaint and summons on his behalf. See 28 U.S.C. § 1915(d) (“The officers of the
22 court shall issue and serve all process, and perform all duties in [IFP] cases.”); FED. R.
23 CIV. P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal
24 or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under
25 28 U.S.C. § 1915.”).
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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 [any
28 individual defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115,
1119 (S.D. Cal. 2007).
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1 IV.

Conclusion and Orders

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Good cause appearing, the Court:

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1.

GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C.

4 § 1915(a) (ECF Doc. No. 2).
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2.

DIRECTS the Secretary of the CDCR, or his designee, to collect from

6 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing
7 monthly payments from his account in an amount equal to twenty percent (20%) of the
8 preceding month’s income and forwarding those payments to the Clerk of the Court each
9 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL
10 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER
11 ASSIGNED TO THIS ACTION.
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3.

DIRECTS the Clerk of the Court to serve a copy of this Order on Scott

13 Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.
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4.

DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF

15 Doc. No. 1) upon Defendants and forward it to Plaintiff along with blank U.S. Marshal
16 Form 285 for each named Defendant. In addition, the Clerk will provide Plaintiff with
17 a certified copy of this Order, a certified copy of his Complaint (ECF Doc. No. 1), and
18 the summons so that he may serve each Defendant named in the Complaint.3 Upon
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Plaintiff must, of course, identify the Defendant he lists only as “Jhon
20 whom he currently describes only an Assistant Warden assigned to CEN, see Doe,” and
Compl. at
3, by his true name and substitute that individual person in place of the Doe by amending
21 his Complaint to identify that party before the United States Marshal will be ordered to
service upon him. See
of Bedford
22 execute (Doe defendants mustAviles v. Village and served Park, 160 F.R.D. 565, 567
(1995)
be identified
within [90] days of the
commencement of the action against them); FED. R. CIV. P. 15(c)(1)(C) & 4(m).
23 Generally, Doe pleading is disfavored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
in most
impossible for the
24 1980). And when the plaintiff proceeds IFP, it isonly as a instances Walker v. Sumner,
United States Marshal to serve a party identified
Doe. See
F.3d 1415, 1422 (9th Cir. 1994) (in order to properly effect service under Rule
25 14 IFP case, the plaintiff is required to “furnish the information necessary to identify4 in
an
the
defendant.”). However, the Court will not dismiss Plaintiff’s claims against Jhon Doe at
26 this time because where the identity of an alleged party is not known prior to filing of an
Circuit
opportunity
27 action, Ninth identify authority permits plaintiff the is clear that to pursue appropriate
discovery to
the unknown Doe, unless it
discovery would not
uncover his identity, or that his Complaint should be dismissed for other reasons. See
28 Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie, 629 F.2d
at 642).
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1 receipt of this “IFP Package,” Plaintiff must complete the Form 285s as completely and
2 accurately as possible for each named Defendant, and return them to the United States
3 Marshal according to the instructions the Clerk provides in the letter accompanying his
4 IFP package.
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5.

ORDERS the U.S. Marshal to serve a copy of the Complaint and summons

6 upon Defendants as directed by Plaintiff on the USM Form 285s provided to him. All
7 costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d);
8 FED. R. CIV. P. 4(c)(3).
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6.

ORDERS Defendants to reply to Plaintiff’s Complaint within the time

10 provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42
11 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the
12 right to reply to any action brought by a prisoner confined in any jail, prison, or other
13 correctional facility under section 1983,” once the Court has conducted its sua sponte
14 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a
15 preliminary determination based on the face on the pleading alone that Plaintiff has a
16 “reasonable opportunity to prevail on the merits,” the defendant is required to respond).
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7.

ORDERS Plaintiff to serve upon Defendants or, if an appearance has been

18 entered by counsel, upon Defendants’ counsel, a copy of every further pleading or other
19 document he wishes the Court to consider. Plaintiff must include with the original paper
20 to be filed with the Clerk of the Court, a certificate stating the manner in which a true
21 and correct copy of the document was served on Defendants, or counsel for Defendants,
22 and the date of that service. Any paper received by the Court which has not been
23 properly filed with the Clerk, or which fails to include a Certificate of Service, may be
24 disregarded.
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IT IS SO ORDERED.

26 DATED: March 14, 2016
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HON. GONZALO P. CURIEL
United States District Judge

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