Hance v. Romero et al

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 Gonzalo P. Curiel on 2/21/17. (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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JERAMIAH HANCE,
CDCR #V-46563,

ORDER:

Plaintiff,

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vs.

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Case No.: 3:16-cv-03027-GPC-PCL

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2]

L. ROMERO;
VALDOVINOS,

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Defendants.

AND

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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)

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JERAMIAH HANCE (“Plaintiff”), currently incarcerated at Richard J. Donovan

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Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed a

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

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

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

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

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3:16-cv-03027-GPC-PCL

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I.

Motion to Proceed IFP

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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, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d

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1182, 1185 (9th Cir. 2015), and regardless of whether his action is dismissed. See 28 U.S.C.

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§ 1915(b)(1) & (2); Taylor v. 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 6-

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month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);

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Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account

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statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits

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in the account for the past six months, or (b) the average monthly balance in the account

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for the past six months, whichever is greater, unless the prisoner has no assets. See 28

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U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner

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then collects subsequent payments, assessed at 20% of the preceding month’s income, in

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any month in which his account exceeds $10, and forwards those payments to the Court

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until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.

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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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3:16-cv-03027-GPC-PCL

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In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate

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Statement Report, as well as a Prison Certificate signed by a senior RJD accounting officer

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attesting as to his account activity for the 6-month period preceding the filing of his

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

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398 F.3d at 1119. These documents show that while Plaintiff had average monthly deposits

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of approximately $9.02 to his account, he carried no monthly balance and had an available

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balance of zero at the time of filing. (ECF No. 2 at 3-4.) Thus, the Court assesses Plaintiff’s

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initial partial filing fee to be $1.80 pursuant to 28 U.S.C. § 1915(b)(1), but acknowledges

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he may be unable to pay even that small initial fee at this time. See 28 U.S.C. § 1915(b)(4)

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(providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action or

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appealing a civil action or criminal judgment for the reason that the prisoner has no assets

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and no means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630;

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Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve”

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preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to

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the lack of funds available to him when payment is ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2),

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declines to exact the initial $1.80 initial filing fee because his prison certificate indicates

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he may have “no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of

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the California Department of Corrections and Rehabilitation (“CDCR”), or his designee,

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to instead collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914

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and forward them to the Clerk of the Court pursuant to the installment payment provisions

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set forth in 28 U.S.C. § 1915(b)(1). See id.

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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 proceeding IFP, his complaint requires a pre-answer

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screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the

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Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is

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frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

Standard of Review

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3:16-cv-03027-GPC-PCL

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immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing

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28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

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(discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the

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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) (internal citation omitted).

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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 F.3d

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1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

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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 relief

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[is] ... a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

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the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
Plaintiff’s Allegations

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B.

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Plaintiff claims Defendants Romero and Valdovinos, both Correctional Officers at

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RJD, violated his First, Eighth, and Fourteenth Amendment rights in December 2016, by

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refusing to provide him access to breathing treatment after he was exposed to pepper spray,

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conducting a retaliatory cell search, using excessive force against him, and forcing him to

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strip in the presence of female staff, all despite his compliance with direct orders. (ECF

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No. 1 at 8-15.)
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3:16-cv-03027-GPC-PCL

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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 Cir.

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2012; Iqbal, 556 U.S. at 678; Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (When prison

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officials stand accused of using excessive force in violation of the Eighth Amendment, the

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core judicial inquiry is “... whether force was applied in a good-faith effort to maintain or

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restore discipline, or maliciously and sadistically to cause harm.”); Estelle v. Gamble, 429

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U.S. 97, 105-06 (1976) (prison officials are liable if they act with deliberate indifferent to

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a prisoner’s serious medical needs); id. at 104 (deliberate indifference “is manifested by

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prison [officials] intentionally denying or delaying access to medical care.”); Rhodes v.

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Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (First Amendment retaliation claim

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requires prisoner to allege: “(1) ... a state actor took some adverse action against [him] (2)

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because of (3) that prisoner’s protected conduct, and that such action (4) chilled the

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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

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advance a legitimate correctional goal.”).

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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 deputy

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marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C.

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§ 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 Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

(ECF No. 2).
2.

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 monthly

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payments from his account in an amount equal to twenty percent (20%) of the preceding
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month’s income and forwarding those payments to the Clerk of the Court each time the

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amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

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MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

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THIS ACTION.

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3.

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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 No.

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1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for Defendants

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ROMERO and VALDOVINOS. In addition, the Clerk will provide Plaintiff with a

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certified copy of this Order, certified copies of his Complaint, and the summons so that he

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may serve these Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete

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the USM Form 285s as completely and accurately as possible, include an address where

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each named Defendant may be found and/or subject to service, and return them to the

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United 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 ROMERO and VALDOVINOS as directed by Plaintiff on the USM Form

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285s provided to him. All costs of that service will be advanced by the United States. See

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28 U.S.C. § 1915(d); FED. R. CIV. P. 4(c)(3).

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6.

ORDERS Defendants ROMERO and VALDOVINOS, once they have been

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served, to reply to Plaintiff’s Complaint within the time provided by the applicable

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provisions of Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a

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defendant may occasionally be permitted to “waive the right to reply to any action brought

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by a prisoner confined in any jail, prison, or other correctional facility under section 1983,”

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once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2)

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and § 1915A(b), and thus, has made a preliminary determination based on the face on the

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pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,”

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defendant is required to respond).
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7.

ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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serve upon Defendants ROMERO and VALDOVINOS, or if appearance has been entered

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by counsel, upon Defendants’ counsel, a copy of every further pleading, motion, or other

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document submitted for the Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff

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must include with every original document he seeks to file with the Clerk of the Court, a

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certificate stating the manner in which a true and correct copy of that document has been

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was served on Defendants or their counsel, and the date of that service. See S.D. CAL.

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CIVLR 5.2. Any document received by the Court which has not been properly filed with

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the Clerk or which fails to include a Certificate of Service upon the Defendants, or their

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counsel, may be disregarded.

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IT IS SO ORDERED.

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Dated: February 21, 2017

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