Iniguez v. Newton

Filing 3

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). Signed by Judge Larry Alan Burns on 1/11/17. (All non-registered users served via U.S. Mail Service)(IFP package prepared)(kas)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JOSE INIGUEZ, CDCR #J-36853, Case No.: 3:16-cv-2601-LAB-PCL ORDER: Plaintiff, 13 vs. 14 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2] 15 16 PATRICIA NEWTON, AND Defendant. 17 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) 18 19 20 21 22 JOSE INIGUEZ (“Plaintiff”), is proceeding pro se, is currently incarcerated at 23 Calipatria State Prison (“CAL”) and has filed a civil rights Complaint pursuant to 42 24 U.S.C. § 1983 (ECF No. 1). 25 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the 26 time of filing, but instead has filed a Motion to Proceed In Forma Pauperis (“IFP”) 27 pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 28 /// 1 3:16-cv-2601-LAB-PCL 1 I. 2 IFP Motion 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); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 17 trust account statement, the Court assesses an initial payment of 20% of (a) the average 18 monthly deposits in the account for the past six months, or (b) the average monthly 19 balance in the account for the past six months, whichever is greater, unless the prisoner 20 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 21 custody of the prisoner then collects subsequent payments, assessed at 20% of the 22 preceding month’s income, in any month in which his account exceeds $10, and forwards 23 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 24 25 1 26 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. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:16-cv-2601-LAB-PCL 1 Bruce, 136 S. Ct. at 629. 2 In support of his IFP Motion, Plaintiff has submitted copies of his CDCR Inmate 3 Statement Report and a prison certificate authorized by a CAL official attesting to his 4 trust account activity. See ECF No. 2 at 4-7; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 5 3.2; Andrews, 398 F.3d at 1119. These statements show Plaintiff has had no monthly 6 deposits to his account, has carried no balance over the six month period preceding the 7 filing of his Complaint, and that his current available balance is zero (ECF No. 2 at 4, 7). 8 See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited 9 from bringing a civil action or appealing a civil action or criminal judgment for the 10 reason that the prisoner has no assets and no means by which to pay the initial partial 11 filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 12 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 13 solely on a “failure to pay . . . due to the lack of funds available to him when payment is 14 ordered.”). 15 Therefore, the Court grants Plaintiff’s Motion to Proceed IFP, declines to “exact” 16 any initial filing fee because his trust account statement shows he “has no means to pay 17 it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California Department of 18 Corrections and Rehabilitation (“CDCR”) to collect the entire $350 balance of the filing 19 fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to 20 the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). See id. 21 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 22 A. 23 Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre- Standard of Review 24 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 25 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 26 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 27 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 28 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 3 3:16-cv-2601-LAB-PCL 1 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 2 the targets of frivolous or malicious suits need not bear the expense of responding.’” 3 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 4 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 5 “The standard for determining whether a plaintiff has failed to state a claim upon 6 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 7 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 8 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 9 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 10 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 11 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 12 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 13 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 14 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 15 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 16 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 17 relief [is] ... a context-specific task that requires the reviewing court to draw on its 18 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 19 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 20 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 21 (9th Cir. 2009). 22 B. 23 Plaintiff claims Defendant Patricia Newton, his “primary care provider” at CAL, Plaintiff’s Allegations 24 denied him adequate medical care and retaliated against him for filing administrative 25 appeals related to his medical care. (ECF No. 1 at 2, 3.) Specifically, Plaintiff alleges to 26 have undergone several orthopedic surgeries to remove “bony tumors” in both feet. 27 Plaintiff claims the surgery to his right foot was successful, but the surgery to his left, 28 which took place on May 28, 2015, was not and left him in severe pain and “deformed.” 4 3:16-cv-2601-LAB-PCL 1 (Id. at 3-4.) Plaintiff claims Newton told him to “man up” after the surgery, denied him 2 adequate pain medication, as well as a disability vest, and later confiscated his crutches. 3 (Id. at 4.) After Plaintiff appealed, he alleges to have again been interviewed by Newton 4 who was “very angry.” Plaintiff claims Newton prescribed anti-depressants and 5 orthopedic shoes; but she refused pain medication and a cane, in contravention to 6 Plaintiff’s surgeon’s recommendations. (Id. at 3-5.) Based on these allegations, the Court finds Plaintiff’s Complaint sufficient to 7 8 survive the “low threshold” for proceeding past the sua sponte screening required by 28 9 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th 10 Cir. 2012; Iqbal, 556 U.S. at 678; Estelle v. Gamble, 429 U.S. 97, 105-06 (1976) (prison 11 officials are liable if they act with deliberate indifferent to a prisoner’s serious medical 12 needs); id. at 104 (deliberate indifference “is manifested by prison [officials] intentionally 13 denying or delaying access to medical care,” or “intentionally interfering with the 14 treatment once prescribed” by a physician); Rhodes v. Robinson, 408 F.3d 559, 567-68 15 (9th Cir. 2005) (First Amendment retaliation claim requires prisoner to allege: “(1) ... a 16 state actor took some adverse action against [him] (2) because of (3) that prisoner’s 17 protected conduct, and that such action (4) chilled the inmate’s exercise of his First 18 Amendment rights, and (5) the action did not reasonably advance a legitimate 19 correctional goal.”). Therefore, the Court will order U.S. Marshal service on Plaintiff’s behalf. See 28 20 21 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and perform 22 all duties in [IFP] cases.”); FED. R. CIV. P. 4(c)(3) (“[T]he court may order that service be 23 made by a United States marshal or deputy marshal . . . if the plaintiff is authorized to 24 proceed in forma pauperis under 28 U.S.C. § 1915.”). 25 III. Conclusion and Order 26 For the reasons explained, the Court: 27 1. 28 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2); 5 3:16-cv-2601-LAB-PCL 1 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 2 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 3 monthly payments from his account in an amount equal to twenty percent (20%) of the 4 preceding month’s income and forwarding those payments to the Clerk of the Court each 5 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 6 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 7 ASSIGNED TO THIS ACTION; 8 9 10 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; 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 11 No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for 12 Defendant PATRICIA NEWTON. In addition, the Clerk will provide Plaintiff with a 13 certified copy of this Order, a certified copy of his Complaint, and the summons so that 14 he may serve Defendant NEWTON. Upon receipt of this “IFP Package,” Plaintiff must 15 complete the Form 285 as completely and accurately as possible, include an address 16 where Defendant NEWTON may be found and/or subject to service, and return it to the 17 United States Marshal according to the instructions the Clerk provides in the letter 18 accompanying his IFP package; 19 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 20 upon Defendant NEWTON as directed by Plaintiff on the USM Form 285 provided to 21 him. All costs of that service will be advanced by the United States. See 28 U.S.C. 22 § 1915(d); FED. R. CIV. P. 4(c)(3); 23 6. ORDERS Defendant NEWTON to reply to Plaintiff’s Complaint within the 24 time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 25 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the 26 right to reply to any action brought by a prisoner confined in any jail, prison, or other 27 correctional facility under section 1983,” once the Court has conducted its sua sponte 28 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a 6 3:16-cv-2601-LAB-PCL 1 preliminary determination based on the face on the pleading alone that Plaintiff has a 2 “reasonable opportunity to prevail on the merits,” defendant is required to respond); and 3 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 4 serve upon Defendant NEWTON, or, if appearance has been entered by counsel, upon 5 Defendant’s counsel, a copy of every further pleading, motion, or other document 6 submitted for the Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must 7 include with every original document he seeks to file with the Clerk of the Court, a 8 certificate stating the manner in which a true and correct copy of that document has been 9 was served on Defendant or her counsel, and the date of that service. See S.D. CAL. 10 CIVLR 5.2. Any document received by the Court which has not been properly filed with 11 the Clerk or which fails to include a Certificate of Service upon Defendant NEWTON, or 12 her counsel, may be disregarded. 13 IT IS SO ORDERED. 14 15 16 17 Dated: January 11, 2017 HON. LARRY ALAN BURNS United States District Judge 18 19 20 21 22 23 24 25 26 27 28 7 3:16-cv-2601-LAB-PCL

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