Wilson v. Cuevas et al

Filing 8

ORDER: (1) Granting Plaintiff's Motion to Proceed In Forma Pauperis Pursuant to 28 U.S.C. § 1915(a) (ECF No. 6 ); and (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). 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 pr eceding 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 Barry Ted Moskowitz on 3/3/2017. (All non-registered users served via U.S. Mail Service)(rlu)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Case No.: 3:16-cv-02100-BTM-DHB GERALD WILSON B-93800, 13 14 15 16 17 ORDER: Plaintiff, 1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) (ECF No. 6) v. A. CUEVAS; M. MOYA; J. OLIVO; M.A. MENDOZA, Defendants. AND 18 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) 19 20 21 22 23 Gerald Wilson (“Plaintiff”), currently incarcerated at Corcoran State Prison located 24 in Corcoran, California, and proceeding pro se, has filed a civil rights complaint 25 (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff alleges that he was 26 subjected to excessive force in violation of his Eighth Amendment rights when he was 27 previously housed at Calipatria State Prison in 2016. (Compl. at 1, 12-18.) 1 3:16-cv-02100-BTM-DHB I:\Chambers Moskowitz\JESSICA\Pro Se\16cv2100-grt IFP & serve.docm 1 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); 2 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 3 U.S.C. § 1915(a) (ECF No. 6). 4 I. 5 Plaintiff’s Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 10 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if a prisoner, like Plaintiff, is 11 granted leave to proceed IFP, he remains obligated to pay the entire fee in “increments,” 12 see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his 13 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 14 281 F.3d 844, 847 (9th Cir. 2002). 15 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 16 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of the 17 trust fund account statement (or institutional equivalent) for the prisoner for the six- 18 month period immediately preceding the filing of the complaint.” 28 U.S.C. 19 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 20 trust account statement, the Court assesses an initial payment of 20% of (a) the average 21 monthly deposits in the account for the past six months, or (b) the average monthly 22 balance in the account for the past six months, whichever is greater, unless the prisoner 23 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 24 25 26 27 1 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. 2 3:16-cv-02100-BTM-DHB I:\Chambers Moskowitz\JESSICA\Pro Se\16cv2100-grt IFP & serve.docm 1 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 2 preceding month’s income, in any month in which the prisoner’s account exceeds $10, 3 and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 4 § 1915(b)(2). 5 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 6 account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. Andrews, 7 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement, but it 8 shows that he has a current available balance of zero. See 28 U.S.C. § 1915(b)(4) 9 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action 10 or appealing a civil action or criminal judgment for the reason that the prisoner has no 11 assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 12 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of 13 a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 14 available to him when payment is ordered.”). 15 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 6) and 16 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 17 balance of the filing fees mandated will be collected by the California Department of 18 Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court 19 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 20 II. 21 Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the 22 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP 23 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] 24 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 25 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as 26 soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under 27 these statutes, the Court must sua sponte dismiss complaints, or any portions thereof, 3 3:16-cv-02100-BTM-DHB I:\Chambers Moskowitz\JESSICA\Pro Se\16cv2100-grt IFP & serve.docm 1 which are frivolous, malicious, fail to state a claim, or which seek damages from 2 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. 3 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. 4 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 5 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 10 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 11 requires the reviewing court to draw on its judicial experience and common sense.” Id. 12 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 13 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 14 “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)”). 21 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). 27 4 3:16-cv-02100-BTM-DHB I:\Chambers Moskowitz\JESSICA\Pro Se\16cv2100-grt IFP & serve.docm As currently pleaded, the Court finds the allegations in Plaintiff’s Complaint 1 2 sufficient to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 3 1915A(b). Accordingly, the Court will direct the U.S. Marshal to effect service on 4 Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and 5 serve all process, and perform all duties in [IFP] cases.”); Fed.R.Civ.P. 4(c)(3) (“[T]he 6 court may order that service be made by a United States marshal or deputy marshal . . . if 7 the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 8 III. 9 10 11 12 Conclusion and Order Good cause appearing, IT IS HEREBY ORDERED that: 1. Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 6) is GRANTED. 2. The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s 13 prison trust account the $350 filing fee owed in this case by collecting monthly payments 14 from the account in an amount equal to twenty percent (20%) of the preceding month’s 15 income and forward payments to the Clerk of the Court each time the amount in the 16 account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 17 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 18 TO THIS ACTION. 19 3. The Clerk of the Court is directed to serve a copy of this Order on Scott 20 Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 21 942883, Sacramento, California, 94283-0001. 22 IT IS FURTHER ORDERED that: 23 4. The Clerk is DIRECTED to issue a summons as to Plaintiff’s Complaint 24 (ECF No. 1) upon Defendants and forward it to Plaintiff along with blank U.S. Marshal 25 Form 285s for each named Defendant. In addition, the Clerk is directed provide Plaintiff 26 with a certified copy of this Order and a certified copy of his Complaint (ECF No. 1) and 27 the summons so that he may serve each named Defendant. Upon receipt of this “IFP 5 3:16-cv-02100-BTM-DHB I:\Chambers Moskowitz\JESSICA\Pro Se\16cv2100-grt IFP & serve.docm 1 Package,” Plaintiff is directed to complete the Form 285s as completely and accurately as 2 possible, and to return them to the United States Marshal according to the instructions 3 provided by the Clerk in the letter accompanying his IFP package. 4 5. Upon receipt, the U.S. Marshal is ORDERED to serve a copy of the 5 Complaint and summons upon the named Defendants as directed by Plaintiff on the USM 6 Form 285s. All costs of service will be advanced by the United States. See 28 U.S.C. 7 § 1915(d); Fed.R.Civ.P. 4(c)(3). 8 9 6. Plaintiff must serve upon the Defendants or, if appearance has been entered by counsel, upon Defendants’ counsel, a copy of every further pleading or other 10 document submitted for consideration by the Court. Plaintiff must include with the 11 original paper to be filed with the Clerk of the Court, a certificate stating the manner in 12 which a true and correct copy of the document was served on the Defendants, or counsel 13 for Defendants, and the date of that service. Any paper received by the Court which has 14 not been properly filed with the Clerk, or which fails to include a Certificate of Service, 15 may be disregarded. 16 17 Dated: March 3, 2017 Hon. Barry Ted Moskowitz, Chief Judge United States District Court 18 19 20 21 22 23 24 25 26 27 6 3:16-cv-02100-BTM-DHB I:\Chambers Moskowitz\JESSICA\Pro Se\16cv2100-grt IFP & serve.docm

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?