Price v. Galiu

Filing 3

ORDER: (1) Granting 2 Motion for Leave to Proceed in forma pauperis; and (2) US Marshal shall effect service of complaint. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing f ee 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 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). (Order electronically transmitted to Secretary of CDCR). Signed by Judge Roger T. Benitez on 2/29/2016. (Sent copy of Order to Scott Kernan)(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16CV412 BEN (PCL)
IMMANUEL C. PRICE
G-51247,

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ORDER:
Plaintiff,

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

v.
DEPUTY ALEXANDRU GALIU,

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Defendants.

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AND

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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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Immanuel C. Price (“Plaintiff”), currently incarcerated at California State Prison -

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Los Angeles County located in Lancaster, California, and proceeding pro se, has filed a

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civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff

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

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Donovan Correctional Facility.

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16CV412 BEN (PCL)

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Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead,

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he has filed two Motions to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.

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§ 1915(a) (ECF Nos. 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 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 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 granted

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leave to proceed IFP, he remains obligated to pay the entire fee in “increments,” see

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Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action

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is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d

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844, 847 (9th Cir. 2002).

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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”),

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a prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund

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

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immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.

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

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Court assesses an initial payment of 20% of (a) the average monthly deposits in the account

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

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months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1);

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28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects

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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, 2013). However, the additional $50 administrative fee
is waived if the plaintiff is granted leave to proceed IFP. Id.
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subsequent payments, assessed at 20% of the preceding month’s income, in any month in

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which the prisoner’s account exceeds $10, and forwards those payments to the Court until

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

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In support of his IFP Motions, 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. Andrews,

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

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that he has a current available balance of zero. 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 civil

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

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

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

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

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ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motions to Proceed IFP, (ECF Nos. 2),

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

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$350 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 pursuant

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to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

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III.

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Notwithstanding Plaintiff’s 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

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

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

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

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

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

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

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

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immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 F.3d 1122,

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1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004

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(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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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether

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a complaint states a plausible claim for relief [is] . . . a context-specific task that requires

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the reviewing court to draw on its judicial experience and common sense.” Id. The “mere

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possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

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Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

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

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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

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allegations of material fact and must construe those facts in the light most favorable to

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the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

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§ 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,

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

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petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply

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essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ.

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

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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

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Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve

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all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court

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

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

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III.

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 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 account

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

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

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

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Form 285s for each named Defendant. In addition, the Clerk is directed to provide Plaintiff

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

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the 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 accurately as

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possible, and to return them to the United States Marshal according to the instructions
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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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6.

Defendants are thereafter ORDERED to respond 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, or

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other correctional facility under section 1983,” once the Court has conducted its sua sponte

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

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preliminary determination based on the face on 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 document

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submitted for consideration by the Court. Plaintiff must include with the original paper to

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be filed with the Clerk of the Court, a certificate stating the manner in which a true and

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correct copy of the document was served on the Defendants, or counsel for Defendants,

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and the date of that service. Any paper received by the Court which has not been properly

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

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Dated: February 29, 2016

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16CV412 BEN (PCL)