Dickey v. Mendoza et al

Filing 3

ORDER (1) Granting Plaintiff's Motion To Proceed In Forma Pauperis (Dkt # 2 ) And (2) Directing U.S. Marshal To Effect Service Of Summons And Complaint: The Secretary CDCR, or his designee, shall collect from Plaintiff's prison trust accou nt the $350 filing fee owed in this case by collecting monthly payments from the account in an amount equal to 20% of the preceding month's income 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). Signed by Judge William Q. Hayes on 2/9/2017. (IFP package prepared. Order electronically transmitted to Secretary of CDCR. Per Order, a copy also was mailed to Secretary of CDCR as directed.) (mdc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

Case No.: 3:17-cv-00206-WQH-AGS
GARY DICKEY
AS-6265,

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. 2)

v.
GILBERT MENDOZA; WARDEN OF
STATE PRISON,
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

Gary Dickey (“Plaintiff”), currently incarcerated at Richard J. Donovan

24

Correctional Facility located in San Diego, California, and proceeding pro se, has filed a

25

civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff

26

did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a

27

to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).
1
3:17-cv-00206-WQH-AGS

1

I.

2

Plaintiff’s Motion to Proceed IFP
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. See 28 U.S.C. § 1914(a).1 An 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, if a prisoner, like Plaintiff, is

8

granted leave to proceed IFP, he remains obligated to pay the entire fee in “increments,”

9

see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his

10

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

11

281 F.3d 844, 847 (9th Cir. 2002).

12

Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act

13

(“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of the

14

trust fund account statement (or institutional equivalent) for the prisoner for the six-

15

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 trust

17

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 then

21

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

22

month in which the prisoner’s account exceeds $10, and forwards those payments to the

23

Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

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
3:17-cv-00206-WQH-AGS

1

In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust

2

account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. Andrews,

3

398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement, which

4

shows that he has a current available balance of zero. See 28 U.S.C. § 1915(b)(4)

5

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

6

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

7

assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at

8

850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of

9

a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds

10

available to him when payment is ordered.”).

11

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

12

assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350

13

balance of the filing fees mandated will be collected by the California Department of

14

Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court

15

pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

16

II.

17

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

18

PLRA also obligates the Court to review complaints filed by all persons proceeding IFP

19

and by those, like Plaintiff, who are “incarcerated or detained in any facility [and]

20

accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the

21

terms or conditions of parole, probation, pretrial release, or diversionary program,” “as

22

soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under

23

these statutes, the Court must sua sponte dismiss complaints, or any portions thereof,

24

which are frivolous, malicious, fail to state a claim, or which seek damages from

25

defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v.

26

Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v.

27

Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
3
3:17-cv-00206-WQH-AGS

1

All complaints must contain “a short and plain statement of the claim showing that

2

the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are

3

not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

4

mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

5

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining

6

whether a complaint states a plausible claim for relief [is] . . . a context-specific task that

7

requires the reviewing court to draw on its judicial experience and common sense.” Id.

8

The “mere possibility of misconduct” falls short of meeting this plausibility standard.

9

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

10

“When there are well-pleaded factual allegations, a court should assume their

11

veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

12

Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

13

(“[W]hen determining whether a complaint states a claim, a court must accept as true all

14

allegations of material fact and must construe those facts in the light most favorable to

15

the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that §

16

1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).

17

However, while the court “ha[s] an obligation where the petitioner is pro se,

18

particularly in civil rights cases, to construe the pleadings liberally and to afford the

19

petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

20

2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not

21

“supply essential elements of claims that were not initially pled.” Ivey v. Board of

22

Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

23

As currently pleaded, the Court finds allegations in Plaintiff’s Complaint which are

24

sufficient to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and

25

1915A(b). Accordingly, the Court will direct the U.S. Marshal to effect service on

26

Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and

27

serve all process, and perform all duties in [IFP] cases.”); Fed.R.Civ.P. 4(c)(3) (“[T]he
4
3:17-cv-00206-WQH-AGS

1

court may order that service be made by a United States marshal or deputy marshal . . . if

2

the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).

3

III.

Conclusion and Order

4

Good cause appearing, IT IS HEREBY ORDERED that:

5

1.

6

Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No.

2) is GRANTED.

7

2.

The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s

8

prison trust account the $350 filing fee owed in this case by collecting monthly payments

9

from the account in an amount equal to twenty percent (20%) of the preceding month’s

10

income and forward payments to the Clerk of the Court each time the amount in the

11

account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

12

SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED

13

TO THIS ACTION.

14

3.

The Clerk of the Court is directed to serve a copy of this Order on Scott

15

Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box

16

942883, Sacramento, California, 94283-0001.

17

IT IS FURTHER ORDERED that:

18

4.

The Clerk is DIRECTED to issue a summons as to Plaintiff’s Complaint

19

(ECF No. 1) upon Defendants and forward it to Plaintiff along with blank U.S. Marshal

20

Form 285s for each named Defendant. In addition, the Clerk is directed provide Plaintiff

21

with a certified copy of this Order and a certified copy of his Complaint (ECF No. 1) and

22

the summons so that he may serve each named Defendant. Upon receipt of this “IFP

23

Package,” Plaintiff is directed to complete the Form 285s as completely and accurately as

24

possible, and to return them to the United States Marshal according to the instructions

25

provided by the Clerk in the letter accompanying his IFP package.

26

///

27

///
5
3:17-cv-00206-WQH-AGS

1

5.

Upon receipt, the U.S. Marshal is ORDERED to serve a copy of the

2

Complaint and summons upon the named Defendants as directed by Plaintiff on the USM

3

Form 285s. All costs of service will be advanced by the United States. See 28 U.S.C.

4

§ 1915(d); Fed.R.Civ.P. 4(c)(3).

5

6.

Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint

6

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

7

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

8

“waive the right to reply to any action brought by a prisoner confined in any jail, prison,

9

or other correctional facility under section 1983,” once the Court has conducted its sua

10

sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made

11

a preliminary determination based on the face on the pleading alone that Plaintiff has a

12

“reasonable opportunity to prevail on the merits,” the defendant is required to respond).

13

7.

Plaintiff must serve upon the Defendants or, if appearance has been entered

14

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

15

document submitted for consideration by the Court. Plaintiff must include with the

16

original paper to be filed with the Clerk of the Court, a certificate stating the manner in

17

which a true and correct copy of the document was served on the Defendants, or counsel

18

for Defendants, and the date of that service. Any paper received by the Court which has

19

not been properly filed with the Clerk, or which fails to include a Certificate of Service,

20

may be disregarded.

21

Dated: February 9, 2017

22
23
24
25
26
27
6
3:17-cv-00206-WQH-AGS