Acevedo v. San Diego, County of et al

Filing 4

ORDER granting Plaintiff's 3 Motion for Leave to Proceed in forma pauperis. 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 payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b) (2). Clerk directed to issue a summons as to Pla's Complaint. US Marshal ordered to serve a copy of the Complaint and Summons upon Dfts. Court orders the served Dfts to reply to Pla's Complaint within the time provided by the applicable provisions of FRCP 12(a). Signed by Judge Cynthia Bashant on 10/12/2016. (Order electronically transmitted to Secretary of CDCR) (IFP Package prepared and mailed to Plaintiff) (All non-registered users served via U.S. Mail Service) (jah)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JUAN ACEVEDO, CDCR #AB-8145, Case No. 16-cv-02042-BAS-MDD ORDER: Plaintiff, 13 vs. 14 (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [Doc. No. 3]; 15 16 COUNTY OF SAN DIEGO; JOHN AND JANE DOE 1 THROUGH 100 17 (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) Defendants. 18 19 20 Juan Acevedo (“Plaintiff”) is a state inmate proceeding pro se, and is currently 21 22 incarcerated at the California Rehabilitation Center in Norco, California. He has filed a 23 civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. No. 1), and a Motion to 24 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No. 3). 25 Plaintiff alleges his constitutional rights were violated when he was housed at the George 26 Bailey Detention Facility. 27 /// 28 /// 1 16cv2042 1 I. 2 Motion to Proceed In Forma Pauperis 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 $400.1 See 28 U.S.C. § 1914(a). The 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 v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 9 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 10 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 11 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 12 2002). 13 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 14 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 15 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 16 § 1915(a)(2); see also Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the 17 certified trust account statement, the Court assesses an initial payment of 20% of (a) the 18 average monthly deposits in the account for the past six months, or (b) the average 19 monthly balance in the account for the past six months, whichever is greater, unless the 20 prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 21 institution having custody of the prisoner then collects subsequent payments, assessed at 22 20% of the preceding month’s income, in any month in which his account exceeds $10, 23 and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 24 § 1915(b)(2); Bruce, 136 S. Ct. at 629. 25 26 1 27 28 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. 2 16cv2042 1 In support of his IFP Motion, Plaintiff has submitted copies of his Inmate 2 Statement Report and a prison certificate attesting to his trust account activity. See Doc. 3 No. 2 at 4-5. These statements show Plaintiff has a current available balance of zero. 4 Therefore, the Court grants Plaintiff’s Motion to Proceed IFP and declines to exact any 5 initial filing fee because his trust account statement shows he “has no means to pay it.” 6 Bruce, 136 S. Ct. at 629; see also 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event 7 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or 8 criminal judgment for the reason that the prisoner has no assets and no means by which to 9 pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 10 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 11 solely on a “failure to pay . . . due to the lack of funds available to him when payment is 12 ordered.”). Moreover, the Court directs the Secretary of the California Department of 13 Corrections and Rehabilitation (“CDCR”) to collect the entire $350 balance of the filing 14 fees required by 28 U.S.C. § 1914 and forward it to the Clerk of the Court pursuant to the 15 installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 16 II. 17 18 Legal Standards for Screening Complaint Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) Because Plaintiff is a prisoner proceeding IFP, his complaint requires a pre-answer 19 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the 20 Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is 21 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 22 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 23 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 24 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 25 the targets of frivolous or malicious suits need not bear the expense of responding.’” 26 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 27 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 28 “The standard for determining whether a plaintiff has failed to state a claim upon 3 16cv2042 1 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 2 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 3 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 4 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 5 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 6 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 7 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 8 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 9 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 10 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 11 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 12 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 13 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 14 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 15 this plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th 16 Cir. 2009). 17 A. 18 “Section 1983 creates a private right of action against individuals who, acting 42 U.S.C. § 1983 19 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 20 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 21 substantive rights, but merely provides a method for vindicating federal rights elsewhere 22 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 23 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 24 deprivation of a right secured by the Constitution and laws of the United States, and (2) 25 that the deprivation was committed by a person acting under color of state law.” Tsao v. 26 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 27 B. 28 In his Complaint, Plaintiff alleges that Defendants “tackle[d] him to the ground,” Excessive Force Claims 4 16cv2042 1 beat him with their fists, and “kicked [Plaintiff] in the head while he was unconscious.” 2 (Compl. at 2.) The Court finds these allegations sufficiently pled to survive the sua sponte 3 screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Plaintiff’s Complaint 4 contains factual allegations sufficient to state a claim for the use of excessive force in 5 violation of the Eighth Amendment. See Iqbal, 556 U.S. at 678; Wilhelm v. Rotman, 680 6 F.3d 1113, 1123 (9th Cir. 2012); Cf. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (When 7 prison officials stand accused of using excessive force in violation of the Eighth 8 Amendment, the core judicial inquiry is “whether force was applied in a good-faith effort 9 to maintain or restore discipline, or maliciously and sadistically to cause harm.”). 10 III. Conclusion and Order 11 For the foregoing reasons, the Court: 12 1. 13 (Doc. No. 3); 14 2. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) DIRECTS the Secretary of the CDCR, or his designee, to collect from 15 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 16 monthly payments from his account in an amount equal to twenty percent (20%) of the 17 preceding month’s income and forwarding those payments to the Clerk of the Court each 18 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 19 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 20 ASSIGNED TO THIS ACTION; 21 22 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; 23 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (Doc. 24 No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each 25 Defendant.2 In addition, the Clerk will provide Plaintiff with a certified copy of this 26 27 Plaintiff must, of course, identify the Defendants he lists only as “John and Jane Doe 1 through 100,” by their true names and substitute those individual persons in place of each unnamed Doe by amending 2 28 5 16cv2042 1 Order, a certified copy of his Complaint and the summons so that he may serve the 2 Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s 3 as completely and accurately as possible, and return them to the United States Marshal 4 according to the instructions the Clerk provides in the letter accompanying his IFP 5 package; 6 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 7 upon the Defendants as directed by Plaintiff on the USM Form 285s provided to him. All 8 costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. 9 R. Civ. P. 4(c)(3); 10 6. ORDERS the served Defendants to reply to Plaintiff’s Complaint within the 11 time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 12 42 U.S.C. § 1997e(g)(2); and 13 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 14 serve upon the named Defendants, or, if appearance has been entered by counsel, upon 15 Defendants’ counsel, a copy of every further pleading, motion, or other document 16 submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 17 include with every original document he seeks to file with the Clerk of the Court, a 18 certificate stating the manner in which a true and correct copy of that document has been 19 served on Defendants or their counsel, and the date of that service. See CivLR 5.2. Any 20 document received by the Court which has not been properly filed with the Clerk or 21 22 23 24 25 26 27 28 his Complaint to identify each of those parties before the United States Marshal will be able to execute service upon them. See Aviles v. Vill. of Bedford Park, 160 F.R.D. 565, 567 (1995) (Doe defendants must be identified and served within [90] days of the commencement of the action against them); Fed. R. Civ. P. 15(c)(1)(C) & 4(m). Generally, Doe pleading is disfavored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). It is in most instances impossible for the United States Marshal to serve a party identified only as a Doe. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (in order to properly effect service under Rule 4 in an IFP case, the plaintiff is required to “furnish the information necessary to identify the defendant.”). Ninth Circuit authority permits plaintiff the opportunity to pursue appropriate discovery to identify the unknown Doe, unless it is clear that discovery would not uncover his identity, or that his Complaint should be dismissed for other reasons. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie, 629 F.2d at 642). 6 16cv2042 1 2 which fails to include a Certificate of Service upon Defendants may be disregarded. IT IS SO ORDERED. 3 4 DATED: October 12, 2016 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 16cv2042

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