Wilson v. Gardiner et al

Filing 3

ORDER (1) Granting 2 Motion for Leave to Proceed in forma pauperis and (2) Directing US Marshal shall effect service. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee o wed 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). (Order electronically transmitted and mailed to Secretary of CDCR). Signed by Judge Janis L. Sammartino on 6/28/2017. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID WILSON,
CDCR #AZ-8092,

Case No.: 3:17-cv-0469-JLS-MDD
ORDER (1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
AND (2) DIRECTING U.S. MARSHAL
TO EFFECT SERVICE PURSUANT
TO 28 U.S.C. § 1915(D) AND
FED. R. CIV. P. 4(C)(3)

Plaintiff,

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vs.

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CORPORAL GARDINER, San Diego
County Sheriff’s Deputy; JOE DOE #1,
San Diego County Deputy Sheriff;
SERGEANT POITER, Deputy Sergeant;
JOE DOES #2-4,

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(ECF No. 2)

Defendants.

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David Wilson (“Plaintiff”) is currently incarcerated at the California Medical

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Facility (“CMF”) in Vacaville, California. He is proceeding pro se, and has filed a civil

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

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

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

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

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3:17-cv-0469-JLS-MDD

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BACKGROUND

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Plaintiff claims he suffers from a “psychiatric disability” for which he is currently

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receiving care “within the [California Department of of Corrections and Rehabilitation]

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[(‘]CDCR[’)].” (Compl. 5.) Earlier, while he was “an inmate under [the] care and control

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of the San Diego County Sheriff’s Department,” and housed at the San Diego Central Jail

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(“SDCJ”) on April 5, 2016, however, Plaintiff alleges Defendants Gardiner and Joe Doe

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#1, both San Diego County Sheriff’s Department deputies assigned to SDCJ, used

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excessive force against him with “callous and malicious intent” to both harm and humiliate

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him. (Id. at 3–14.) Specifically, Plaintiff claims Gardiner became “infuriated” after Plaintiff

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asked for soup, at which point Gardiner grabbed, punched, pushed, kicked, and struck him

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“in the eye, neck, and upper torso,” and then escorted him “through the Jail with a severely

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torn shirt and no pants on,” and into a “filthy” medical cell. (Id. at 7–9.)

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After two hours in the cell, “half naked in distress,” Plaintiff claims he asked

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Defendant Deputy Joe Doe #1 for clothes and supplies, and stated “I[’d] rather be dead

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than live like this.” (Id. at 9–10.) Joe Doe #1 then ordered him to “cuff up”—claiming

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Plaintiff had threatened suicide—“pointed the jagged edge of the . . . cuffs in [his] right

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hand,” and “immediately” pepper sprayed him twice, after he asked for a sergeant. (Id. at

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10–11.)

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Plaintiff further contends Defendant Poiter, a San Diego County Sergeant on

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“second watch,” arrived a “moment later,” commented on the amount of pepper spray

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dispensed, but “failed to properly document the incidents.” (Id. at 4, 11.) Plaintiff was then

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“taken straight to suicide watch,” “left in a rubber cell naked and burning,” and released

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“within 24 hours” after being assessed “by the psych doctor” as non-suicidal. (Id. at 12.)

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IFP MOTION
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. 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).1 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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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

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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 balance

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in the account for the past six months, whichever is greater, unless the prisoner has no

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assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody

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of the prisoner then collects subsequent payments, assessed at 20% of the preceding

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month’s income, in any month in which his account exceeds $10, and forwards those

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

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136 S. Ct. at 629.

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In support of his IFP motion, Plaintiff has submitted a CDCR Inmate Statement, and

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a Prison Certificate authorized by an accounting specialist at CMF attesting to his balances

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and deposits over the six-month period preceding the filing of his Complaint. See ECF No.

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2 at 4, 6; 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2; Andrews, 398 F.3d at 1119. These

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statements show that Plaintiff has carried no monthly average and has had no money

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deposited to his account for the six-month period preceding the filing of this action.

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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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Consequently, his available balance at the time of filing was zero. (See ECF No. 2 at 4);

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see also 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited

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from bringing a civil action or appealing a civil action or criminal judgment for the reason

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that the 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) acts

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

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to pay . . . due to the lack of funds available to him when payment is ordered”).

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

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to “exact” any initial filing fee because his trust account statement shows he “has no means

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to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of CDCR to collect the entire

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$350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk

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of 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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SCREENING PURSUANT TO 28 U.S.C. §§ 1915(E)(2)(B) AND 1915A(B)

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Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a sua

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sponte, pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under

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these statutes, the Court must dismiss a prisoner’s IFP complaint, or any portion of it, which

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is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

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immune. See e.g., 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 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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As currently pled, the Court finds that Plaintiff’s Complaint contains factual

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

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screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), because it alleges excessive

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force claims which are plausible on their face.2 See Wilhelm, 680 F.3d at 1123. See Iqbal,

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556 U.S. at 678; Kingsley v. Hendrickson, __ U.S. __, 135 S. Ct. 2466, 2473 (2015) (“[T]he

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Due Process Clause protects a pretrial detainee from the use of excessive force that

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amounts to punishment.”) (citing Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)).

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Under Kingsley, a pretrial detainee, unlike a convicted prisoner, need not prove that the

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defendant subjectively knew that the force applied was excessive; the state-of-mind inquiry

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is “solely . . . objective.” Id. at 2473; Austin v. Baker, 616 F. App’x 365, 366 (9th Cir.

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2015); cf. Hudson v. McMillian, 503 U.S. 1, 6–7 (1992) (when prison officials stand

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

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Plaintiff is cautioned, however, that “the sua sponte screening and dismissal procedure is cumulative of,
and not a substitute for, any subsequent Rule 12(b)(6) motion that [any individual defendant] may choose
to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007).
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inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline,

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or maliciously and sadistically to cause harm”).

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Accordingly, the Court will direct the U.S. Marshal to effect service upon the named

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Defendants Gardiner and Poiter on Plaintiff’s behalf.3 See 28 U.S.C. § 1915(d) (“The

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officers of the court shall issue and serve all process, and perform all duties in [IFP]

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cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United

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States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in forma

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pauperis under 28 U.S.C. § 1915.”).
CONCLUSION AND ORDER

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Given the foregoing, 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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Plaintiff must, of course, identify the Defendants he references only as “Joe Doe #1, San Diego County
Sheriff Deputy” and “Joe Does #2–4,” whose names are presently unknown but whom Plaintiff claims
“refused to stop the excessive force, or failed to properly document” it. (ECF No. 1 at 5). Plaintiff must
identify these Defendants by their true names and substitute those individual persons in place of each
unnamed Doe by amending his Complaint to identify each of those parties before the United States
Marshal will be able to execute service upon any of them. See Aviles v. Village of Bedford Park, 160
F.R.D. 565, 567 (1995) (Doe defendants must be identified and served within [90] days of the
commencement of the action against them); Fed. R. Civ. P. 15(c)(1)(C) & 4(m). Generally, Doe pleading
is disfavored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). It is in most instances impossible
for the United States Marshal to serve a party identified only as a Doe. See Walker v. Sumner, 14 F.3d
1415, 1422 (9th Cir. 1994) (in order to properly effect service under Rule 4 in an IFP case, the plaintiff is
required to “furnish the information necessary to identify the defendant.”). However, the Court will not
dismiss Plaintiff’s claims against the Doe Defendants at this time because where the identity of an alleged
party is not known prior to filing of an action, Ninth Circuit authority permits Plaintiff the opportunity to
pursue appropriate discovery to identify the unknown Does, unless it is clear that discovery would not
uncover their identity, or the Complaint should be dismissed for other reasons. See Wakefield v. Thompson,
177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie, 629 F.2d at 642).
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amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

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SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

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THIS ACTION;

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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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GARDINER and POITER. In addition, the Clerk will provide Plaintiff with a certified

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

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

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285s as completely and accurately as possible, include an address where each named

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Defendant may be found and/or subject to service, and return them to the United States

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Marshal according to the instructions the Clerk provides in the letter accompanying the IFP

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package;

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ORDERS the U.S. Marshal to serve a copy of the Complaint and summons

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upon the Defendants Gardiner and Poiter 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 Gardiner and Poiter, 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) (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,” the

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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 Gardiner and Poiter, 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 S.D. Cal. Civ.

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L.R. 5.2. Any document received by the Court which has not been properly filed with the

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

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disregarded.
IT IS SO ORDERED.
Dated: June 28, 2017

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