Ford v. Sinklier et al

Filing 3

ORDER granting Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this 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). Clerk directed to issue a summons as to Plaintiff's Complaint for Defendants Sinklier and Emmoto. US Marshal shall effect service of Complaint and summons. Signed by Judge Cynthia Bashant on 4/19/2017. (Order electronically transmitted to Secretary of CDCR) (IFP Package prepared and forwarded to Plaintiff) (All non-registered users served via U.S. Mail Service) (jah)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 DARREN VINCENT FORD, CDCR #K-17549, ORDER: Plaintiff, 13 14 Case No. 17-cv-00307-BAS-PCL v. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS (ECF No. 2) 15 16 17 G. SINKLIER, Correctional Officer; EMMOTO, Sergeant, AND Defendants. 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 Plaintiff Darren Vincent Ford, proceeding pro se, is currently incarcerated at 23 California State Prison – Sacramento (“CSP-SAC”) in Represa, California, and has filed a 24 civil rights Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) 25 Plaintiff alleges Correctional Officer G. Sinklier violated his Eighth and Fourteenth 26 Amendment rights while he was incarcerated at Richard J. Donovan Correctional Facility 27 (“RJD”) in December 2015, and January 2016, by searching his cell, destroying his 28 property, threatening him with rape, and exposing his criminal history as a sex offender in 1 17cv0307 1 the presence of his fellow inmates in retaliation for Plaintiff having filed inmate grievances 2 against Officer Sinklier. (ECF No. 1 at 3-4.) Plaintiff further claims to have repeatedly 3 reported Officer Sinklier’s threats and actions to Sergeant Emmoto, but Sergeant Emmoto 4 allegedly acted with “deliberate indifference” to Plaintiff’s plight and did “nothing about 5 it.” (Id. at 4.)1 6 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the 7 time of filing, but instead has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 8 to 28 U.S.C. § 1915(a). (ECF No. 2.) 9 I. IFP Motion 10 All parties instituting any civil action, suit or proceeding in a district court of the 11 United States, except an application for writ of habeas corpus, must pay a filing fee of 12 $400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 13 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 14 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 15 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 16 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 17 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 18 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 19 20 21 22 23 24 Plaintiff also includes “Mr. Daniel Paramo, Warden,” as a Defendant in the caption to his Complaint (ECF No. 1 at 1), but he has crossed out all other references to Paramo in the body of his pleading and has written “N/A” under Paramo’s name. (Id. at 2, 5.) Moreover, Plaintiff includes no factual allegations related to Paramo in his Complaint, and he states no plausible claim for relief against the Warden. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Therefore, the Court presumes Paramo is not an intended party. 1 25 2 26 27 28 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 17cv0307 1 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 2 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 3 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6- 4 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 5 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 6 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 7 in the account for the past six months, or (b) the average monthly balance in the account 8 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 9 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner 10 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 11 any month in which his account exceeds $10, and forwards those payments to the Court 12 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. 13 In support of his IFP Motion, Plaintiff has submitted certified copies of his California 14 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report 15 showing his trust account activity at the time of filing. See ECF No. 2 at 4-7; 28 U.S.C. § 16 1915(a)(2); Civ. L.R. 3.2; Andrews, 398 F.3d at 1119. These statements show Plaintiff 17 owes more than $10,000 in restitution and fines, but has had no monthly deposits to his 18 account, has carried no balance over the six month period preceding the filing of his 19 Complaint, and had an available balance of zero at CSP-SAC as of January 12, 2017 (ECF 20 No. 2 at 6). That said, Plaintiff may proceed IFP notwithstanding his inability to pay the 21 initial portion of the filing fee. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event 22 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or 23 criminal judgment for the reason that the prisoner has no assets and no means by which to 24 pay the initial partial filing fee”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding 25 that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s 26 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when 27 payment is ordered”). 28 // 3 17cv0307 1 Therefore, the Court grants Plaintiff’s Motion to Proceed IFP, declines to exact any 2 initial filing fee because his trust account statement shows he “has no means to pay it,” 3 Bruce, 136 S. Ct. at 629, and directs the Secretary of the CDCR to collect the entire $350 4 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of 5 the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 6 § 1915(b)(1). See id. 7 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 8 Because Plaintiff is a prisoner proceeding IFP, his complaint requires a pre-answer 9 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the 10 Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is 11 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 12 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 13 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 14 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 15 targets of frivolous or malicious suits need not bear the expense of responding.’” 16 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (internal citation omitted). 17 “The standard for determining whether a plaintiff has failed to state a claim upon 18 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 19 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 20 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 21 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 22 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 23 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 24 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 25 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 26 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 27 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 28 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 4 17cv0307 1 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 2 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 3 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 4 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 5 The Court finds the allegations in Plaintiff’s Complaint are sufficient to survive the 6 “low threshold” for proceeding past the sua sponte screening required by 28 U.S.C. 7 §§ 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012). 8 “California’s . . . prisoners may be murderers, rapists, drug dealers, and child molesters, 9 but California is responsible for protecting even those sorts of people from murder by other 10 prisoners. Indeed, the Eighth Amendment requires that prison officials ‘must take 11 reasonable measures to guarantee the safety of the inmates.’” United States v. Williams, 12 842 F.3d 1143, 1153 (9th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994) 13 (“[P]rison officials have a duty [under the Eighth Amendment] ... to protect prisoners from 14 violence at the hands of other prisoners.”)); Valandingham v. Bojorquez, 866 F.2d 1135, 15 1139 (9th Cir. 1989) (holding labeling prisoner a “snitch” in the presence of other inmates 16 is sufficient to state a claim of deliberate indifference to an inmate’s safety); Crane v. 17 Gonzales, No. CV-F-03-6339 OWW WMW P, 2008 WL 2168927, at *2 (E.D. Cal. May 18 23, 2008) (concluding calling a prisoner a “child molester” in the presence of fellow 19 inmates stated an Eighth Amendment claim), report and recommendation adopted at 2008 20 WL 2676780 (E.D. Cal. June 30, 2008). Further, an allegation of retaliation against a 21 prisoner’s First Amendment right to file a prison grievance is sufficient to support a claim 22 under § 1983. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (enumerating 23 elements for First Amendment retaliation claim); Bruce v. Ylst, 351 F.3d 1283, 1288 (9th 24 Cir. 2003). Thus, the Court concludes Plaintiff’s claim that Officer Sinklier violated his 25 constitutional rights by destroying his property and exposing his criminal history as a sex 26 offender in front of other inmates in retaliation for Plaintiff filing inmate grievances against 27 him is sufficient to survive screening under 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The 28 Court similarly concludes Plaintiff’s claim that Sergeant Emmoto violated his 5 17cv0307 1 constitutional rights by acting with deliberate indifference to Plaintiff’s plight and his 2 repeated reports of Officer Sinklier’s threats and misconduct is sufficient to survive 3 screening. 4 Therefore, the Court will direct the U.S. Marshal to effect service of summons and 5 Plaintiff’s Complaint upon Defendants Sinklier and Emmoto on Plaintiff’s behalf. See 28 6 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 7 III. Conclusion and Order 8 For the reasons explained, the Court: 9 1. 10 11 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 12 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 13 payments from his account in an amount equal to twenty percent (20%) of the preceding 14 month’s income and forwarding those payments to the Clerk of the Court each time the 15 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). All payments must 16 be clearly identified by the name and number assigned to this action; 17 18 19 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; 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 20 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for Defendants 21 Sinklier and Emmoto. In addition, the Clerk will provide Plaintiff with a certified copy of 22 this Order, a certified copy of his Complaint, and the summons so that he may serve these 23 Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s as 24 completely and accurately as possible, include an address where each named Defendant 25 may be found and/or subject to service, and return them to the U.S. Marshal according to 26 the instructions the Clerk provides in the letter accompanying his IFP package; 27 28 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons upon Defendants Sinklier and Emmoto as directed by Plaintiff on the USM Form 285s 6 17cv0307 1 provided to him. All costs of that service will be advanced by the United States. See 28 2 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3); 3 6. ORDERS Defendants Sinklier and Emmoto, once they have been served, to 4 reply to Plaintiff’s Complaint within the time provided by the applicable provisions of 5 Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (indicating that while 6 a defendant may occasionally be permitted to “waive the right to reply to any action 7 brought by a prisoner confined in any jail, prison, or other correctional facility under 8 section 1983,” once the court has conducted its sua sponte screening pursuant to 28 U.S.C. 9 § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the 10 face on the pleading alone that the plaintiff has a “reasonable opportunity to prevail on the 11 merits,” the defendant is required to respond); and 12 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 13 serve upon Defendants Sinklier and Emmoto, or if appearance has been entered by counsel, 14 upon Defendants’ counsel, a copy of every further pleading, motion, or other document 15 submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 16 include with every original document he seeks to file with the Clerk of the Court, a 17 certificate stating the manner in which a true and correct copy of that document has been 18 was served on Defendants or their counsel, and the date of that service. See Civ. L.R. 5.2. 19 Any document received by the Court which has not been properly filed with the Clerk or 20 which fails to include a Certificate of Service upon Defendants, or their counsel, may be 21 disregarded. 22 IT IS SO ORDERED. 23 24 25 26 DATED: April 19, 2017 Hon. Cynthia Bashant United States District Judge 27 28 7 17cv0307

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