McCullock v. Tharratt et al
Filing
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ORDER granting 2 Motion for Leave to Proceed in forma pauperis, denying 3 Motion to Appoint Counsel, and granting 5 Motion for Issuance of Sumons. 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 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 forward paym ents 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 Larry Alan Burns on 5/18/16. (All non-registered users served via U.S. Mail Service)(IFP package prepared)(kas)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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ROBERT McCULLOCK,
CDCR #V-32182,
Case No.: 3:16-cv-0457-LAB-DHB
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ORDER:
Plaintiff,
vs.
1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
PURSUANT TO 28 U.S.C. § 1915(a)
[ECF No. 2];
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R. STEVEN THARRATT, et al.,
Defendants.
2) DENYING MOTION TO
APPOINT COUNSEL [ECF No. 3];
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AND
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2) GRANTING MOTION FOR
ISSUANCE OF SUMMONS AND
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) [ECF No. 5]
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ROBERT McCULLOCK (“Plaintiff”), currently incarcerated at Richard J.
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Donovan Correctional Facility (“RJD”) and proceeding pro se, has filed a civil rights
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action pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has also filed a Motion to
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3:16-cv-0457-LAB-DHB
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Proceed In Forma Pauperis (“IFP”) (ECF No. 2), a Motion to Appoint Counsel (ECF No.
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3), and a Motion for Issuance of Summons (ECF No. 5).
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I.
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Plaintiff’s Motion to Proceed IFP
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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$400.1 See 28 U.S.C. § 1914(a). The 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, a prisoner who is granted leave to
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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
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Bruce v. Samuels, __ U. S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d
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1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed.
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See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.
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2002).
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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a
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“certified copy of the trust fund account statement (or institutional equivalent) for . . . the
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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
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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 having
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custody of the prisoner then collects subsequent payments, assessed at 20% of the
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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 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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preceding month’s income, in any month in which his account exceeds $10, and forwards
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those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);
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Bruce, 136 S. Ct. at 629.
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In support of his IFP motion, Plaintiff has submitted certified copies of his prison
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trust account statements, and a prison certificate, verified by an accounting officer at
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RJD, pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. See ECF No. 2 at 4,
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6-7; Andrews, 398 F.3d at 1119. This financial information shows that Plaintiff has had
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no monthly deposits, carried no balance in his trust account during the 6-month period
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preceding the filing of this action, and had an available balance of zero at the time of
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filing. Therefore, the Court assesses no initial partial filing fee pursuant to 28 U.S.C.
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§ 1915(b)(1) because it appears Plaintiff is unable to pay any initial fee. See 28 U.S.C.
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§ 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a
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civil action or appealing a civil action or criminal judgment for the reason that the
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prisoner has no assets and no means by which to pay the initial partial filing fee.”);
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Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4)
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acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a
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“failure to pay . . . due to the lack of funds available to him when payment is ordered.”).
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Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2),
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declines to “exact” any initial filing fee because his prison certificate shows he “has no
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means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California
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Department of Corrections and Rehabilitation (“CDCR”), or his designee, to collect the
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entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and to forward them
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to the Clerk of the Court pursuant to the installment payment provisions set forth in 28
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U.S.C. § 1915(b)(1). See id.
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II.
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Motion to Appoint Counsel
Plaintiff has also filed a Motion for Appointment of Counsel (ECF No. 3). Plaintiff
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claims he is indigent, imprisoned, and will require assistance investigating and
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“elicit[ing] the facts from witnesses and experts.” See id. at 1-3.
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There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of Social
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Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district
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courts have some limited discretion to “request” that an attorney represent an indigent
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civil litigant. Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004).
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However, this discretion may be exercised only under “exceptional circumstances.” Id.;
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see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional
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circumstances requires “an evaluation of the likelihood of the plaintiff’s success on the
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merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the
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complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn
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v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
The Court DENIES Plaintiff’s Motion (ECF No. 3) without prejudice because, as
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discussed below, it appears Plaintiff is capable of articulating the factual basis for his
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claims, and the likelihood of his success on the merits is not at all yet clear at this
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preliminary stage of the proceedings. Id. Therefore, neither the interests of justice nor any
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exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley,
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827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.
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III.
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Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A
Notwithstanding Plaintiff’s IFP status or the payment of any filing fees, the PLRA
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also requires the Court to review complaints filed by all persons proceeding IFP and by
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those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of,
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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 any complaint, or any portion of a complaint,
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which is frivolous, malicious, fails to state a claim, or seeks damages from defendants
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who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203
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F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621
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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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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 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
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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
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“supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of
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the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
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Plaintiff alleges various medical officials employed by both California
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Correctional Health Care Services and RJD acted with deliberate indifference to his
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serious medical needs by failing to notify him and take action after an outside specialist
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recommended he undergo a skin cancer biopsy in early 2015 (ECF No. 1 at 10-15). As
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currently pled, the Court finds Plaintiff’s Complaint contains Eighth Amendment claims
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sufficient to survive the “low threshold” for proceeding past the sua sponte screening
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required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman, 680 F.3d
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1113, 1123 (9th Cir. 2012). Deliberate indifference to the serious medical needs of an
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inmate constitutes “cruel and unusual punishment” under the Eighth Amendment. See
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Estelle v. Gamble, 429 U.S. 97, 104-06 (1976). “To demonstrate deliberate indifference,
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‘plaintiffs must show that [prison officials] were (a) subjectively aware of the serious
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medical need and (b) failed to adequately respond.’” Rosati v. Igbinoso, 791 F.3d 1037,
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1039 (9th Cir. 2015) (quoting Conn v. City of Reno, 591 F.3d 1081, 1096 (9th Cir. 2010),
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vacated, 563 U.S. 915 (2011), reinstated in relevant part, 658 F.3d 897 (9th Cir. 2011)).
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Accordingly, the Court will GRANT Plaintiff’s Motion for Issuance of Summons
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(ECF No. 5) and direct the U.S. Marshal to effect service upon the Defendants on
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Plaintiff’s 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
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court may order that service be made by a United States marshal or deputy marshal . . . if
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the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).
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III.
Conclusion and Orders
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Good cause appearing, the Court:
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1.
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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
(ECF No. 2).
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DIRECTS the Secretary of the CDCR, or his designee, to collect from
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Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing
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monthly payments from his account in an amount equal to twenty percent (20%) of the
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preceding month’s income and forwarding those payments to the Clerk of the Court each
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time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL
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PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER
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ASSIGNED TO THIS ACTION.
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3.
DIRECTS the Clerk of the Court to serve a copy of this Order on Scott
Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.
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DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 3);
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5.
GRANTS Plaintiff’s Motion for Issuance of Summons (ECF No. 5) and
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DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 1) upon
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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,
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a certified copy of his Complaint (ECF No. 1), and the summons so that he may serve the
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Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s
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as completely and accurately as possible, and return them to the United States Marshal
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according to the instructions the Clerk provides in the letter accompanying his IFP
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package;
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ORDERS the U.S. Marshal to serve a copy of the Complaint and summons
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upon Defendants as directed by Plaintiff on the USM Form 285s provided to him. All
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costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); FED.
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R. CIV. P. 4(c)(3);
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ORDERS Defendants to reply to Plaintiff’s Complaint within the time
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provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42
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U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the
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right to reply to any action brought by a prisoner confined in any jail, prison, or other
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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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and
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ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to
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serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’
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counsel, a copy of every further pleading, motion, or other document submitted for the
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Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every
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original document he seeks to file with the Clerk of the Court, a certificate stating the
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manner in which a true and correct copy of that document has been was served on
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Defendants or their counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. Any
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document received by the Court which has not been properly filed with the Clerk or
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which fails to include a Certificate of Service upon Defendants may be disregarded.
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IT IS SO ORDERED.
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Dated: May 18, 2016
HON. LARRY ALAN BURNS
United States District Judge
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