Wilson v. Chandroo et al

Filing 6

ORDER: 1) Granting 4 Renewed Motion to Proceed in Forma Pauperis and 2) Directing U.S. Marshal to Effect Service of Complaint and Summons Pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). US Marshal shall effect service of complai nt. The Secretary CDCR, or his designee, is ordered to collect from Plaintiff's trust account the $11.83 initial filing fee assessed, if those funds are available at the time this Order is executed, and to forward whatever balance remains of the full $350 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding month's income to the Clerk of the Court each time the amount in Plaintiff's account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). (Order electronically transmitted to Secretary of CDCR). Signed by Judge Michael M. Anello on 4/25/2017. (IFP package prepared) (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:16-cv-02815-MMA-WVG

TEDDY LEROY WILSON, Jr.,
CDCR #BC-5903,

ORDER:

Plaintiff,

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vs.

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1) GRANTING RENEWED MOTION
TO PROCEED IN FORMA
PAUPERIS [Doc. No. 4]

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DAVID CHANDROO, Ramona Deputy
Sheriff; CASEY THAYER, Ramona
Deputy Sheriff; DAVID WILLIAMS,
Ramona Deputy Sheriff,

AND
2) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE OF COMPLAINT
AND SUMMONS PURSUANT TO
28 U.S.C. § 1915(d) AND
Fed. R. Civ. P. 4(c)(3)

Defendants.

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TEDDY LEROY WILSON, Jr., (“Plaintiff”), currently incarcerated at the

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California Institution for Men (“CIM”) in Chino, California,1 and proceeding pro se, has

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filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. No. 1).

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Plaintiff was still a pretrial detainee at the San Diego Sheriff’s Department’s Vista
Detention Facility when he initiated this action; but he has since filed a Notice of Change
of Address to CIM (Doc. No. 5).
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3:16-cv-02815-MMA-WVG

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Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when

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he filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2).

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On December 19, 2016, the Court denied Plaintiff’s IFP because he failed to attach

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a certified copy of his trust account statements as required by 28 U.S.C. § 1915(a)(2), but

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granted him an opportunity to correct that deficiency (Doc. No. 3). Plaintiff has since

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filed a renewed Motion to Proceed IFP (Doc. No. 4).

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I.

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Renewed IFP Motion
As Plaintiff now knows, all parties instituting any civil action, suit or proceeding in

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a district court of the United States, except an application for writ of habeas corpus, must

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pay a filing fee of $400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a

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plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP

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pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th

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Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner

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who is granted leave to proceed IFP remains obligated to pay the entire fee in

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“increments” or “installments,” Bruce v. Samuels, __ S. Ct. __, 136 S. Ct. 627, 629

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(2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of

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whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v.

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Delatoore, 281 F.3d 844, 847 (9th 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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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.
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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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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 renewed IFP Motion, Plaintiff submitted a copy of his San Diego

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Sheriff’s Department Trust Account Activity (ECF No. 4 at 6), together with a prison

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certificate completed by an accounting official at the Vista Detention Facility attesting to

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his trust account activity and balances for the six-months preceding the filing of his

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Complaint. See Doc. No. 4 at 4; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews,

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398 F.3d at 1119. These statements show that Plaintiff had an average monthly balance of

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$19.34, and average monthly deposits of $59.17 to his account over the 6-month period

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immediately preceding the filing of his Complaint, as well as an available balance of

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$116.01 at the time of filing. See Doc. No. 4 at 4. Based on this financial information, the

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Court GRANTS Plaintiff’s Renewed Motion to Proceed IFP (Doc. No. 4), and assesses

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his initial partial filing fee to be $11.83 pursuant to 28 U.S.C. § 1915(b)(1).

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However, the Court will direct the Secretary of the California Department of

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Corrections and Rehabilitation (“CDCR”), or his designee, to collect this initial fee only

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if sufficient funds are available in Plaintiff’s account at the time this Order is executed.

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See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited

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from bringing a civil action or appealing a civil action or criminal judgment for the

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reason that the prisoner has no assets and no means by which to pay the initial partial

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filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C.

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§ 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based

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solely on a “failure to pay ... due to the lack of funds available to him when payment is
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ordered.”). The remaining balance of the $350 total fee owed in this case must be

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collected and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(1).

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II.

Screening Pursuant to 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 also requires a

Standard of Review

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pre-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 “contain sufficient factual matter, accepted

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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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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.
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The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-

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harmed me accusation[s]” fall 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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B.

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Plaintiff’s claims three Ramona Deputy Sheriffs used excessive force while

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effecting his arrest in the early morning of September 3, 2016, at a baseball park near his

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home, and while he was suffering from an episode of paranoid schizophrenia, an illness

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he has suffered since childhood. (Doc. No. 1 at 4.) Plaintiff claims Defendants

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“approached” him “out of nowhere,” while investigating reports of a “suspicious person

Plaintiff’s Allegations

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casing cars in the parking lot.” (Id. at 5.) Plaintiff was “self-medicating” at the time,

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“panicked, turned around and fled.” (Id.)

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Specifically, Plaintiff claims Deputy Chandroo “ran up behind him, and shoved

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him forward causing pain to his back[,] shoulders, and neck,” “shoved [his] face in the

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dirt,” and struck him in the face and head. (Id. at 5-6). Plaintiff further claims Deputy

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Thayer “arrived” and “started delivering knee strikes to [his] stomach,” struck him in the

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head and face, pinned his legs behind his back and “bounced” on them, (id. at 6), and that

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Deputy Williams did the same. (Id. at 7.) Plaintiff claims he thought he would be “beaten

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to death,” lost “momentary consciousness,” and was ultimately transported to the hospital

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in a neck brace. (Id. at 7.) He seeks injunctive relief preventing “harassment” by the

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Defendants, and $2,250,000 in general and punitive damages. (Id. at 11.)

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Based on these allegations, the Court finds Plaintiff’s Complaint sufficient to

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survive the “low threshold” for proceeding past the sua sponte screening required by 28

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U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th

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Cir. 2012; Iqbal, 556 U.S. at 678; Scott v. Harris, 550 U.S. 372, 381 (2007) (noting that a

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claim of “excessive force in the course of making [a] … ‘seizure’ of [the] person ... [is]

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properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.”)

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(quoting Graham v. Connor, 490 U.S. 386, 388 (1989)). The Fourth Amendment

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reasonableness analysis “requires balancing the ‘nature and quality of the intrusion’ on a
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person’s liberty with the ‘countervailing governmental interest at stake’ to determine

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whether the use of force was objectively reasonable under the circumstances.” Smith v.

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City of Hemet, 394 F.3d 689, 700 (9th Cir. 2005) (quoting Graham, 490 U.S. at 396)).

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Therefore, the Court will direct the U.S. Marshal to effect service of summons

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Plaintiff’s Complaint on his behalf. See 28 U.S.C. § 1915(d) (“The officers of the court

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shall 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 Order

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For the reasons explained, the Court:

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1.

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GRANTS Plaintiff’s Renewed Motion to Proceed IFP pursuant to 28 U.S.C.

§ 1915(a) (Doc. No. 4).

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2.

ORDERS the Secretary of the CDCR, or his designee, to collect from

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Plaintiff’s trust account the $11.83 initial filing fee assessed, if those funds are available

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at the time this Order is executed, and to forward whatever balance remains of the full

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$350 owed in monthly payments in an amount equal to twenty percent (20%) of the

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preceding month’s income to the Clerk of the Court each time the amount in Plaintiff’s

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account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE

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CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS

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ACTION.

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DIRECTS the Clerk of the Court to serve a copy of this Order on Scott

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Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.

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4.

DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (Doc.

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No. 1) 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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certified copies of his Complaint, and the summons so that he may serve Defendants.

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Upon receipt of this “IFP Package,” Plaintiff must complete the USM Form 285s as

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completely and accurately as possible, include an address where each named Defendant

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may be found and/or subject to service, 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 the 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, once they have been served, to reply to Plaintiff’s

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Complaint within the time provided by the applicable provisions of Federal Rule of Civil

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Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be

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permitted to “waive the right to reply to any action brought by a prisoner confined in any

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jail, prison, or other correctional facility under section 1983,” once the Court has

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conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b),

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and thus, has made a preliminary determination based on the face on the pleading alone

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that Plaintiff has a “reasonable opportunity to prevail on the merits,” defendant is

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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 the Defendants, or their counsel, may

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be disregarded.

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IT IS SO ORDERED.
DATE: April 25, 2017

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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