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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JERAMIAH HANCE, CDCR #V-46563, ORDER: Plaintiff, 13 vs. 14 15 Case No.: 3:16-cv-03027-GPC-PCL 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2] L. ROMERO; VALDOVINOS, 16 Defendants. AND 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) 18 19 20 21 22 JERAMIAH HANCE (“Plaintiff”), currently incarcerated at Richard J. Donovan 23 Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed a 24 civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). 25 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when he 26 filed his Complaint; instead, he later 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-03027-GPC-PCL 1 I. Motion to Proceed IFP 2 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 dismissed. See 28 U.S.C. 11 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6- 14 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 15 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 16 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 17 in the account for the past six months, or (b) the average monthly balance in the account 18 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 19 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner 20 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 21 any month in which his account exceeds $10, and forwards those payments to the Court 22 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. 23 /// 24 25 26 27 28 1 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-03027-GPC-PCL 1 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 2 Statement Report, as well as a Prison Certificate signed by a senior RJD accounting officer 3 attesting as to his account activity for the 6-month period preceding the filing of his 4 Complaint. See ECF No. 2 at 2-4; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 5 398 F.3d at 1119. These documents show that while Plaintiff had average monthly deposits 6 of approximately $9.02 to his account, he carried no monthly balance and had an available 7 balance of zero at the time of filing. (ECF No. 2 at 3-4.) Thus, the Court assesses Plaintiff’s 8 initial partial filing fee to be $1.80 pursuant to 28 U.S.C. § 1915(b)(1), but acknowledges 9 he may be unable to pay even that small initial fee at this time. See 28 U.S.C. § 1915(b)(4) 10 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action or 11 appealing a civil action or criminal judgment for the reason that the prisoner has no assets 12 and no means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; 13 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 14 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to 15 the lack of funds available to him when payment is ordered.”). 16 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), 17 declines to exact the initial $1.80 initial filing fee because his prison certificate indicates 18 he may have “no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of 19 the California Department of Corrections and Rehabilitation (“CDCR”), or his designee, 20 to instead collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 21 and forward them to the Clerk of the Court pursuant to the installment payment provisions 22 set forth in 28 U.S.C. § 1915(b)(1). See id. 23 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 24 A. 25 Because Plaintiff is a prisoner proceeding IFP, his complaint requires a pre-answer 26 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the 27 Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is 28 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are Standard of Review 3 3:16-cv-03027-GPC-PCL 1 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 2 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 3 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 4 targets of frivolous or malicious suits need not bear the expense of responding.’” 5 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (internal citation omitted). 6 “The standard for determining whether a plaintiff has failed to state a claim upon 7 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 8 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 9 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 10 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 11 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 13 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 14 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 15 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 16 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 17 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 18 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 19 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 20 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 21 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Plaintiff’s Allegations 22 B. 23 Plaintiff claims Defendants Romero and Valdovinos, both Correctional Officers at 24 RJD, violated his First, Eighth, and Fourteenth Amendment rights in December 2016, by 25 refusing to provide him access to breathing treatment after he was exposed to pepper spray, 26 conducting a retaliatory cell search, using excessive force against him, and forcing him to 27 strip in the presence of female staff, all despite his compliance with direct orders. (ECF 28 No. 1 at 8-15.) 4 3:16-cv-03027-GPC-PCL 1 Based on these allegations, the Court finds Plaintiff’s Complaint sufficient to 2 survive the “low threshold” for proceeding past the sua sponte screening required by 28 3 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 4 2012; Iqbal, 556 U.S. at 678; Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (When prison 5 officials stand accused of using excessive force in violation of the Eighth Amendment, the 6 core judicial inquiry is “... whether force was applied in a good-faith effort to maintain or 7 restore discipline, or maliciously and sadistically to cause harm.”); Estelle v. Gamble, 429 8 U.S. 97, 105-06 (1976) (prison officials are liable if they act with deliberate indifferent to 9 a prisoner’s serious medical needs); id. at 104 (deliberate indifference “is manifested by 10 prison [officials] intentionally denying or delaying access to medical care.”); Rhodes v. 11 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (First Amendment retaliation claim 12 requires prisoner to allege: “(1) ... a state actor took some adverse action against [him] (2) 13 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 14 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 15 advance a legitimate correctional goal.”). 16 Therefore, the Court will direct the U.S. Marshal to effect service of summons 17 Plaintiff’s Complaint on his behalf. See 28 U.S.C. § 1915(d) (“The officers of the court 18 shall issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 19 4(c)(3) (“[T]he court may order that service be made by a United States marshal or deputy 20 marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. 21 § 1915.”). 22 III. Conclusion and Order 23 For the reasons explained, the Court: 24 1. 25 26 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 27 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 28 payments from his account in an amount equal to twenty percent (20%) of the preceding 5 3:16-cv-03027-GPC-PCL 1 month’s income and forwarding those payments to the Clerk of the Court each time the 2 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 3 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 4 THIS ACTION. 5 3. 6 7 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 No. 8 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for Defendants 9 ROMERO and VALDOVINOS. In addition, the Clerk will provide Plaintiff with a 10 certified copy of this Order, certified copies of his Complaint, and the summons so that he 11 may serve these Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete 12 the USM Form 285s as completely and accurately as possible, include an address where 13 each named Defendant may be found and/or subject to service, and return them to the 14 United States Marshal according to the instructions the Clerk provides in the letter 15 accompanying his IFP package. 16 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 17 upon Defendants ROMERO and VALDOVINOS as directed by Plaintiff on the USM Form 18 285s provided to him. All costs of that service will be advanced by the United States. See 19 28 U.S.C. § 1915(d); FED. R. CIV. P. 4(c)(3). 20 6. ORDERS Defendants ROMERO and VALDOVINOS, once they have been 21 served, to reply to Plaintiff’s Complaint within the time provided by the applicable 22 provisions of Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a 23 defendant may occasionally be permitted to “waive the right to reply to any action brought 24 by a prisoner confined in any jail, prison, or other correctional facility under section 1983,” 25 once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) 26 and § 1915A(b), and thus, has made a preliminary determination based on the face on the 27 pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,” 28 defendant is required to respond). 6 3:16-cv-03027-GPC-PCL 1 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 2 serve upon Defendants ROMERO and VALDOVINOS, or if appearance has been entered 3 by counsel, upon Defendants’ counsel, a copy of every further pleading, motion, or other 4 document submitted for the Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff 5 must include with every original document he seeks to file with the Clerk of the Court, a 6 certificate stating the manner in which a true and correct copy of that document has been 7 was served on Defendants or their counsel, and the date of that service. See S.D. CAL. 8 CIVLR 5.2. Any document received by the Court which has not been properly filed with 9 the Clerk or which fails to include a Certificate of Service upon the Defendants, or their 10 counsel, may be disregarded. 11 IT IS SO ORDERED. 12 Dated: February 21, 2017 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 3:16-cv-03027-GPC-PCL

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