Gonzalez v. Gusman et al

Filing 4

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 4/18/17. (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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LEANDRO LEONEL GONZALEZ,
CDCR #V-74928,
vs.

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ORDER

Plaintiff,

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Case No.: 3:17-cv-00241-GPC-BGS

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

GUSMAN, Correctional Officer;
RODRIN, Correctional Officer,

AND

Defendants.

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

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LEANDRO LEONEL GONZALEZ (“Plaintiff”), currently incarcerated at Mule

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Creek State Prison (“MCSP”) in Ione, California, and proceeding pro se, has filed a civil

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

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Plaintiff was incarcerated at Salinas Valley State Prison (“SVSP”) at the time of filing,
but on April 12, 2017, he filed a Notice of Change of Address to MCSP (ECF No. 3).
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Plaintiff claims Defendants Gusman and Rodrin, both Correctional Officers at

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Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, violated his

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Eighth Amendment rights on April 6, 2015, by closing a cell door on his arm and

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refusing to provide him medical care afterward. (ECF No. 1 at 8-13, 23-24.) Plaintiff

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seeks a declaratory judgment and an unspecified amount of compensatory and punitive

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damages “to be determined at trial.” (Id. at 7.)2

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Plaintiff has not prepaid the $400 civil filing fee required to commence a civil

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action pursuant to 28 U.S.C. § 1914(a); instead he has filed a Motion to Proceed In

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Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).

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I.

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Motion to Proceed IFP
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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$400.3 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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The Court takes judicial notice that Plaintiff Leandro Leonel Gonzalez, CDCR #V-74928,
has another civil rights action currently pending before the Honorable John A. Houston in
Gonzalez v. Armenta, et al., S.D. Cal. Civil Case No. 3:16-cv-02494-JAH-JLB. See Bias
v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (court “‘may take notice of proceedings
in other courts, both within and without the federal judicial system, if those proceedings
have a direct relation to matters at issue.’” (quoting Bennett v. Medtronic, Inc., 285 F.3d
801, 803 n.2 (9th Cir. 2002)). Gonzalez v. Armenta, S.D. Cal. Civil Case No. 3:16-cv02494-JAH-JLB, however, does not allege the same claims, does not appear related, and
does not name the same correctional defendants as are involved in this subsequently filed
case. See id. (ECF No. 14 at 3-7).

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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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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 ultimately dismissed.

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See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.

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

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Statement Report as well as a prison certificate certified by a trust account official at

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SVSP. See ECF No. 2 at 5-6; 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 while Plaintiff had an average monthly

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balance of $2.35 and average monthly deposits of $1.87 to his account over the 6-month

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period immediately preceding the filing of his Complaint, he had an available balance of

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zero at the time of filing. See ECF No. 2 at 6. Thus, the Court assesses Plaintiff’s initial

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partial filing fee to be $0.47 pursuant to 28 U.S.C. § 1915(b)(1), but acknowledges he

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may be unable to pay even that minimal initial fee at this time. See 28 U.S.C.

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§ 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a

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civil action or appealing a civil action or criminal judgment for the reason that the
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prisoner has no assets and no means by which to pay the initial partial filing fee.”);

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Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4)

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acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a

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“failure to pay ... due to the lack of funds available to him when payment is ordered.”).
Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2),

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declines to exact any initial filing fee because his prison certificate indicates he may have

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

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Department of Corrections and Rehabilitation (“CDCR”), or his designee, to instead

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

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

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

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II.

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Screening of Complaint per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre-

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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. The “mere possibility of misconduct” or

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009).

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As currently pleaded, the Court finds Plaintiff’s Complaint contains allegations

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sufficient to survive the “low threshold” for proceeding past the sua sponte screening

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required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).4 See Wilhelm, 680 F.3d at 1123;

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Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative
of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may
choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007).
However, the Court finds it is not “clear from the face of the complaint,” whether Plaintiff
has exhausted all “available” administrative remedies pursuant to 42 U.S.C. § 1997e(a).
See Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc), cert denied, 135 S. Ct.
403 (2014); Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). In his Complaint,
Plaintiff claims under penalty of perjury both to have exhausted his administrative
remedies before filing suit, see ECF No. 1 at 6, 7, and to have had multiple CDC 602
appeals related to his claims “cancelled,” “rejected” and “screened out.” (Id. at 13-23.)
“[A]n inmate is required to exhaust those, but only those, grievance procedures that are
‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross v. Blake, 136
S. Ct. 1850, 1859 (2016) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)); id. at
1859-60 (noting unavailability where “prison administrators thwart inmates from taking
advantage of a grievance process through machination, misrepresentation, or
intimidation.”). Therefore, because exhaustion is an affirmative defense, Defendants “will
have to present probative evidence ... ‘to plead and prove’ ... that [Plaintiff] has failed to
exhaust” all available administrative remedies pursuant to FED. R. CIV. P. 56, should they
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Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (When prison officials stand accused of

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using excessive force in violation of the Eighth Amendment, the core judicial inquiry is

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“... whether force was applied in a good-faith effort to maintain or restore discipline, or

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maliciously and sadistically to cause harm.”); Estelle v. Gamble, 429 U.S. 97, 105-06

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(1976) (prison officials are liable if they act with deliberate indifferent to a prisoner’s

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serious medical needs); id. at 104 (deliberate indifference “is manifested by prison

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[officials] intentionally denying or delaying access to medical care.”).

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Therefore, the Court will order the U.S. Marshal to effect service upon Defendants

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Gusman and Rodrin on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the

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court shall issue and serve all process, and perform all duties in [IFP] cases.”); FED. R.

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CIV. P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal

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or 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 Orders

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Good cause appearing, 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);

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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

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monthly payments from his account in an amount equal to twenty percent (20%) of the

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preceding month’s income and forwarding those payments to the Clerk of the Court each

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

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PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

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ASSIGNED TO THIS ACTION;

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elect to defend on this basis. Albino, 747 F.3d at 1169 (quoting Jones v. Bock, 549 U.S.
199, 204 (2007)).
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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;
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DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF

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No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for

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Defendants GUSMAN and RODRIN. In addition, the Clerk will provide Plaintiff with a

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certified copy of this Order, a certified copy 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 Form 285s as completely and accurately as possible, include an address where each

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Defendant may be found, and return them to the United States Marshal according to the

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instructions the Clerk provides in the letter 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 GUSMAN and RODRIN 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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ORDERS Defendants GUSMAN and RODRIN, once served, to reply to

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Plaintiff’s Complaint within the time provided by the applicable provisions of Federal

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

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occasionally be permitted to “waive the right to reply to any action brought by a prisoner

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confined in any jail, prison, or other correctional facility under section 1983,” once the

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

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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); and

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

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serve upon Defendants GUSMAN and RODRIN, or, if appearance has been entered by

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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).

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Plaintiff must include with every original document he seeks to file with the Clerk of the
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Court, a certificate stating the manner in which a true and correct copy of that document

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

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

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with the Clerk, or which fails to include a Certificate of Service upon Defendants, may be

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disregarded.

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IT IS SO ORDERED.
Dated: April 18, 2017

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