Na v. Simmons et al
Filing
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ORDER Granting 2 Motion for Leave to Proceed in forma pauperis. 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 th is 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) ; Denying 3 Motion to Appoint Counsel. Signed by Judge William Q. Hayes on 5/17/16. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (dlg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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SAITH NA,
CDCR No. AT-9636
ORDER: (1) GRANTING MOTION
TO PROCEED IN FORMA
PAUPERIS; (2) DENYING MOTION
TO APPOINT COUNSEL; AND (3)
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)
Plaintiff,
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Case No.: 3:16-cv-00592-WQH-WVG
v.
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SIMMONS; HVIZDZAK; ALIYEV; B.I.
MYERS; TALAMANTE; L.A. GARCIA;
McHENRY; MAUL,
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Defendant.
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Saith Na (“Plaintiff”), currently incarcerated at Pelican Bay State Prison located in
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Crescent City, California, and proceeding pro se, has filed a civil rights complaint
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(“Compl.”) pursuant to 42 U.S.C. § 1983 (Doc. No. 1). Plaintiff claims that his
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constitutional rights were violated when he was housed at George Bailey Detention
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Facility in April of 2015. (See Compl. at 1.)
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Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when
he filed his Complaint; instead, he has filed a Motion to Proceed In Forma Pauperis
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(“IFP”) pursuant to 28 U.S.C. § 1915(a), along with a Motion to Appoint Counsel. (Doc.
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Nos. 2, 3).
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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, __ S. Ct. __, 136 S. Ct. 627, 629 (U.S. 2016); Williams v. Paramo,
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775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately
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dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th
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Cir. 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 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 activity which shows
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he has a current balance of $0.00. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no
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event shall a prisoner be prohibited from bringing a civil action or appealing a civil action
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or criminal judgment for the reason that the prisoner has no assets and no means by
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which to pay [an] initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28
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U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case
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based solely on a “failure to pay . . . due to the lack of funds available.”).
Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc. 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 fee owed must be collected 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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II.
Motion to Appoint Counsel
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In this matter, Plaintiff seeks an order from this Court appointing counsel to
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represent him. (Doc. No. 3.) Plaintiff claims he is “unable to afford counsel” and
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imprisonment will greatly limit his ability to litigate.” (Id. at 1, 2.)
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There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of Social
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Servs, 452 U.S. 18, 25 (1981). And while 28 U.S.C. § 1915(e)(1) grants the district court
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limited discretion to “request” that an attorney represent an indigent civil litigant,
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Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion
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may be exercised only under “exceptional circumstances.” Id.; see also Terrell v. Brewer,
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935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances requires “an
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evaluation of the likelihood of the plaintiff’s success on the merits and an evaluation of
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the plaintiff’s ability to articulate his claims ‘in light of the complexity of the legal issues
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involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328,
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1331 (9th Cir. 1986)).
The Court denies Plaintiff’s request without prejudice because nothing in the
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record at this stage of the proceedings suggests he is incapable of articulating the factual
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basis for his claims, and any evaluation of his likelihood of success on the merits is
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premature. I wil Therefore, no exceptional circumstances warrant the appointment of
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counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935
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F.2d at 1017.
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III.
Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
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A.
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Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre-
Standard of Review
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answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
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statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of
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it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants
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who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
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(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
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2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that
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the targets of frivolous or malicious suits need not bear the expense of responding.’”
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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford
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Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
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“The standard for determining whether a plaintiff has failed to state a claim upon
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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668
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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
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applied in the context of failure to state a claim under Federal Rule of Civil Procedure
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12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,
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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
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556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
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Detailed factual allegations are not required, but “[t]hreadbare recitals of the
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elements of a cause of action, supported by mere conclusory statements, do not suffice.”
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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for
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relief [is] . . . a context-specific task that requires the reviewing court to draw on its
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judicial experience and common sense.” Id. The “mere possibility of misconduct” or
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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting
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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969
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(9th Cir. 2009).
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B.
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“Section 1983 creates a private right of action against individuals who, acting
42 U.S.C. § 1983
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under color of state law, violate federal constitutional or statutory rights.” Devereaux v.
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Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of
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substantive rights, but merely provides a method for vindicating federal rights elsewhere
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conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks
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and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)
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deprivation of a right secured by the Constitution and laws of the United States, and (2)
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that the deprivation was committed by a person acting under color of state law.” Tsao v.
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Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
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Plaintiff’s allegations
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C.
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Plaintiff’s claims arise from his housing at the George Bailey Detention Facility on
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April 5, 2015. (See ECF No. 1 at 1.) On April 5, 2015, Plaintiff claims that he was
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escorted to “Cell #110” by Defendant Garcia, along with other deputies at 3:05 p.m. (Id.
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at 5) Plaintiff claims Defendant Aliyev went inside the cell and “dragged out a mattress
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filled with water.” (Id.) Plaintiff objected to being housed in that cell but he claims
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Defendant Garcia told him to “get the fuck inside the cell.” (Id.) Plaintiff entered the
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“flooded cell.” (Id.) Defendant Garcia removed the handcuffs from Plaintiff but left him
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“without a bed roll or cleaning supplies to clean the cell.” (Id.)
Plaintiff alleges that cell was “splattered” with food, the majority of the “water
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from the toilet bowl was empty,” the cell was “flooded with sink water and toilet water”
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and there was “urine and feces near the toilet.” (Id. at 6.) He further discovered that the
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water had been shut off in this cell. (Id.)
While Plaintiff was in this cell, Defendant Aliyev “walked by” for a routine check
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and Plaintiff asked him for cleaning supplies. (Id.) Plaintiff alleges that Defendant
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Aliyev responded “he’ll see what he can do.” (Id.) Later that day, Defendant Hvizdzak
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“walked by Plaintiff’s cell for a routine check” and Plaintiff asked him for cleaning
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supplies. (Id.) Plaintiff alleges Defendant Hvizdzak responded “not right now.” (Id. at
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7.) Plaintiff also informed Defendant Hvizdzak that the sink did not work and Hvizdzak
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responded that “we shut off the water because we had an idiot in the cell before you who
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was flooding the cell.” (Id.) Defendant Hvizdzak turned the water back on in the cell.
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(Id.)
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Later that evening, Plaintiff claims that Defendants Aliyev and Hvizdzak “got off
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work” but failed to provide Plaintiff “with cleaning supplies to clean the cell” and a “bed
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roll.” (Id.) As a result, Plaintiff claims these Defendants acted with “deliberate
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indifference” in leaving Plaintiff in a “flooded/unsanitary cell.” (Id.)
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Between 6:45 and 7:00 p.m., Plaintiff states he “got up to use the toilet” and
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“slipped and fell injuring his head and lower back.” (Id. at 7-8.) At some later point,
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Defendant Myers “walked by Plaintiff’s cell for a routine check.” (Id. at 8.) Plaintiff
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claims Defendant Myers saw Plaintiff “on the ground lying on a puddle of filth.” (Id.)
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Plaintiff got up from the floor and called to Defendant Myers for help. (Id.) Plaintiff
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claims he informed Defendant Myers that he “needed medical attention” to which
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Defendant Myers informed Plaintiff that he had “just walked by, I saw you on the floor”
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but that he “thought you were just lying there.” (Id.) Plaintiff claims Defendant Myers
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told him to “hold off” and then walked away. (Id.)
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Plaintiff alleges he repeatedly asked Defendant Myers for medical attention when
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he performed additional “routine checks” but Myers “ignored Plaintiff each time and
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walked away.” (Id. at 9.) Plaintiff then told Defendant Talamante, as he passed by the
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cell for a routine check, that he had “slipped and fell and he needed medical attention.”
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(Id.) Plaintiff states that Defendant Talamante also ignored Plaintiff and “walked away.”
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(Id.) In addition, he alleges Defendant Talamante also failed to provide Plaintiff with
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cleaning supplies which “left Plaintiff to suffer in an inhumane condition of
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confinement.” (Id. at 10.)
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At 7:00 p.m., Plaintiff claims that he “press[ed] the button the intercom and spoke
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with Defendant McHenry” informing him that he had “slipped and fell because the cell
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was flooded and needed medical attention.” (Id.) Plaintiff claims Defendant McHenry
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responded by telling Plaintiff to “hold off.” (Id.) Several minutes later, Plaintiff used
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the intercom again but was ignored. (Id.)
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On April 10, 2015, Plaintiff claims that “insects started to come into the cell”
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because his cell had not been cleaned or sanitized. (Id. at 12.) The next day, Plaintiff
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“explained to Sgt. Simmons” the events that occurred on April 5, 2015. (Id.) Plaintiff
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claims Defendant Simmons told him that he would direct his deputies “to bring Plaintiff
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some cleaning supplies.” (Id.) However, no one brought Plaintiff cleaning supplies.
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(Id.) On the evening of April 11, 2015, Plaintiff spoke to Lieutenant Kania who then had
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workers clean and sanitize the cell. (Id. at 12-13.)
As currently pled, the Court finds Plaintiff’s Complaint contains conditions of
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confinement claims that are sufficient to survive the “low threshold” for proceeding past
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the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm
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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 upon the
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Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall
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issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P.
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4(c)(3) (“[T]he court may order that service be made by a United States marshal or
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deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28
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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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DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 3)
without prejudice;
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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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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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DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF
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No. 1) upon Defendants and forward it to Plaintiff along with a blank U.S. Marshal Form
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285 for each Defendant. In addition, the Clerk will provide Plaintiff with a certified copy
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of this Order, a certified copy of his Complaint (ECF No. 1), and the summons so that he
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may serve the Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete
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the Form 285s as completely and accurately as possible, and return them to the United
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States Marshal according to the instructions the Clerk provides in the letter
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accompanying his IFP 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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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.
Dated: May 17, 2016
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