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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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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DARREN VINCENT FORD,
CDCR #K-17549,

ORDER:

Plaintiff,

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Case No. 17-cv-00307-BAS-PCL

v.

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

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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)

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Plaintiff Darren Vincent Ford, proceeding pro se, is currently incarcerated at

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California State Prison – Sacramento (“CSP-SAC”) in Represa, California, and 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 alleges Correctional Officer G. Sinklier violated his Eighth and Fourteenth

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Amendment rights while he was incarcerated at Richard J. Donovan Correctional Facility

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(“RJD”) in December 2015, and January 2016, by searching his cell, destroying his

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property, threatening him with rape, and exposing his criminal history as a sex offender in
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the presence of his fellow inmates in retaliation for Plaintiff having filed inmate grievances

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against Officer Sinklier. (ECF No. 1 at 3-4.) Plaintiff further claims to have repeatedly

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reported Officer Sinklier’s threats and actions to Sergeant Emmoto, but Sergeant Emmoto

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allegedly acted with “deliberate indifference” to Plaintiff’s plight and did “nothing about

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it.” (Id. at 4.)1

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

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time of filing, but instead has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant

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to 28 U.S.C. § 1915(a). (ECF No. 2.)

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I.

IFP Motion

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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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$400.2 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 ultimately dismissed.

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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.
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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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See 28 U.S.C. § 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 support of his IFP Motion, Plaintiff has submitted certified copies of his California

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Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report

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showing his trust account activity at the time of filing. See ECF No. 2 at 4-7; 28 U.S.C. §

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1915(a)(2); Civ. L.R. 3.2; Andrews, 398 F.3d at 1119. These statements show Plaintiff

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owes more than $10,000 in restitution and fines, but has had no monthly deposits to his

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account, has carried no balance over the six month period preceding the filing of his

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Complaint, and had an available balance of zero at CSP-SAC as of January 12, 2017 (ECF

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No. 2 at 6). That said, Plaintiff may proceed IFP notwithstanding his inability to pay the

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initial portion of the filing fee. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event

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shall a prisoner be prohibited from bringing a civil action or appealing a civil action or

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criminal judgment for the reason that the prisoner has no assets and no means by which to

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pay the initial partial filing fee”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding

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

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IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when

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payment is ordered”).

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//
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Therefore, the Court grants Plaintiff’s Motion to Proceed IFP, declines to exact any

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initial filing fee because his trust account statement shows he “has no means to pay it,”

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Bruce, 136 S. Ct. at 629, and directs the Secretary of the CDCR to collect the entire $350

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balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of

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the Court pursuant to the installment payment provisions set forth in 28 U.S.C.

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§ 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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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

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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).

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The Court finds the allegations in Plaintiff’s Complaint are sufficient to survive the

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“low threshold” for proceeding past the sua sponte screening required by 28 U.S.C.

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§§ 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012).

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“California’s . . . prisoners may be murderers, rapists, drug dealers, and child molesters,

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but California is responsible for protecting even those sorts of people from murder by other

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prisoners. Indeed, the Eighth Amendment requires that prison officials ‘must take

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reasonable measures to guarantee the safety of the inmates.’” United States v. Williams,

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842 F.3d 1143, 1153 (9th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)

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(“[P]rison officials have a duty [under the Eighth Amendment] ... to protect prisoners from

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violence at the hands of other prisoners.”)); Valandingham v. Bojorquez, 866 F.2d 1135,

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1139 (9th Cir. 1989) (holding labeling prisoner a “snitch” in the presence of other inmates

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is sufficient to state a claim of deliberate indifference to an inmate’s safety); Crane v.

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Gonzales, No. CV-F-03-6339 OWW WMW P, 2008 WL 2168927, at *2 (E.D. Cal. May

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23, 2008) (concluding calling a prisoner a “child molester” in the presence of fellow

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inmates stated an Eighth Amendment claim), report and recommendation adopted at 2008

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WL 2676780 (E.D. Cal. June 30, 2008). Further, an allegation of retaliation against a

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prisoner’s First Amendment right to file a prison grievance is sufficient to support a claim

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under § 1983. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (enumerating

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elements for First Amendment retaliation claim); Bruce v. Ylst, 351 F.3d 1283, 1288 (9th

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Cir. 2003). Thus, the Court concludes Plaintiff’s claim that Officer Sinklier violated his

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constitutional rights by destroying his property and exposing his criminal history as a sex

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offender in front of other inmates in retaliation for Plaintiff filing inmate grievances against

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him is sufficient to survive screening under 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The

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Court similarly concludes Plaintiff’s claim that Sergeant Emmoto violated his
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constitutional rights by acting with deliberate indifference to Plaintiff’s plight and his

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repeated reports of Officer Sinklier’s threats and misconduct is sufficient to survive

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screening.

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Therefore, the Court will direct the U.S. Marshal to effect service of summons and

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Plaintiff’s Complaint upon Defendants Sinklier and Emmoto on Plaintiff’s behalf. See 28

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U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).

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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);
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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 must

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be clearly identified by the name and number assigned to this action;

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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 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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Sinklier and Emmoto. In addition, the Clerk will provide Plaintiff with a certified copy of

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this Order, a certified copy of his Complaint, and the summons so that he may serve these

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Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s as

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completely and accurately as possible, include an address where each named Defendant

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may be found and/or subject to service, and return them to the U.S. Marshal according to

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the 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

upon Defendants Sinklier and Emmoto as directed by Plaintiff on the USM Form 285s
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provided to him. All costs of that service will be advanced by the United States. See 28

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U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3);

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ORDERS Defendants Sinklier and Emmoto, once they have been served, to

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

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

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

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brought by a prisoner confined in any jail, prison, or other correctional facility under

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section 1983,” once the court has conducted its sua sponte screening pursuant to 28 U.S.C.

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§ 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the

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face on the pleading alone that the plaintiff has a “reasonable opportunity to prevail on the

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merits,” the 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 Sinklier and Emmoto, or if appearance has been entered by counsel,

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

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submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must

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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 Civ. L.R. 5.2.

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Any document received by the Court which has not been properly filed with the Clerk or

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which fails to include a Certificate of Service upon Defendants, or their counsel, may be

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disregarded.

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IT IS SO ORDERED.

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DATED: April 19, 2017
Hon. Cynthia Bashant
United States District Judge

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