Johnson v. Pamplin et al

Filing 4

ORDER granting Plaintiff's 3 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 to issue a summons as to Plaintiff's Complaint. US Marshal shall effect service of Complaint. Signed by Judge Cynthia Bashant on 4/17/2017. (Order electronically transmitted to Secretary of CDCR) (IFP Package prepared and mailed 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 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 15 16 17 ORDER: Plaintiff, 13 14 Case No.: 3:17-cv-0560-BAS-BLM JAMI JOHNSON, CDCR #H-20376, vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 3] D. PAMPLIN; G. VALDOVINAS; A. MASSIA; M. MORALES; J. HEDDY; O. MORALES; M. ACUNA; J. WILBORN; W. SMITH AND Defendants. 18 2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE PURSUANT TO 28 U.S.C. § 1915(d) AND Fed. R. Civ. P. 4(c)(3) 19 20 21 22 Jami Johnson (“Plaintiff”), currently incarcerated at California State Prison, 23 located in Corcoran, California, and proceeding pro se, has filed a civil-rights complaint 24 pursuant to 42 U.S.C. § 1983 (ECF No. 1). 25 Plaintiff claims Defendants, all correctional officials at Richard J. Donovan 26 Correctional Facility (“RJD”) in San Diego, California, used excessive force against him 27 and retaliated against him while he was incarcerated there in 2016. 28 /// 1 17cv560 1 Plaintiff did not pay the $400 civil filing fee required to commence a civil action 2 pursuant to 28 U.S.C. § 1914(a) but instead has filed a Motion to Proceed In Forma 3 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 3.) 4 I. 5 Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 10 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 11 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 12 Bruce v. Samuels, — U.S. —, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 13 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 14 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 15 2002). 16 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 17 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 18 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 19 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 20 trust account statement, the Court assesses an initial payment of 20% of (a) the average 21 monthly deposits in the account for the past six months, or (b) the average monthly 22 balance in the account for the past six months, whichever is greater, unless the prisoner 23 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 24 25                                                 26 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. 27 28 1 2 17cv560 1 custody of the prisoner then collects subsequent payments, assessed at 20% of the 2 preceding month’s income, in any month in which his account exceeds $10, and forwards 3 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 4 Bruce, 136 S. Ct. at 629. 5 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 6 Statement Report as well as a prison certificate certified by an Accountant Specialist at 7 Corcoran. See ECF No. 3 at 4-7; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 8 398 F.3d at 1119. These statements show that while Plaintiff had an average monthly 9 balance of $91.47 and average monthly deposits of $121.10 to his account over the 6- 10 month period immediately preceding the filing of his Complaint, he had an available 11 balance of $2.01 at the time of filing. See ECF No. 3 at 7. Thus, the Court assesses 12 Plaintiff’s initial partial filing fee to be $24.22 pursuant to 28 U.S.C. § 1915(b)(1), but 13 acknowledges he may be unable to pay any initial fee at this time. See 28 U.S.C. 14 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 15 civil action or appealing a civil action or criminal judgment for the reason that the 16 prisoner has no assets and no means by which to pay the initial partial filing fee.”); 17 Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) 18 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a 19 “failure to pay . . . due to the lack of funds available to him when payment is ordered.”). 20 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 3), 21 declines to exact the initial $24.22 initial filing fee because his prison certificate indicates 22 he may have “no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of 23 the California Department of Corrections and Rehabilitation (“CDCR”), or his designee, 24 to instead collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 25 and forward them to the Clerk of the Court pursuant to the installment payment 26 provisions set forth in 28 U.S.C. § 1915(b)(1). See id. 27 /// 28 /// 3 17cv560 1 2 III. 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- 3 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 4 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 5 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 6 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 7 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 8 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 9 the targets of frivolous or malicious suits need not bear the expense of responding.’” 10 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 11 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 12 “The standard for determining whether a plaintiff has failed to state a claim upon 13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 15 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 16 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 17 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 18 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 19 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 20 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 21 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 22 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 23 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 24 relief [is] ... a context-specific task that requires the reviewing court to draw on its 25 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 26 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 27 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 28 (9th Cir. 2009). 4 17cv560 1 As currently pleaded, the Court finds Plaintiff’s Complaint contains allegations 2 sufficient to survive the “low threshold” for proceeding past the sua sponte screening 3 required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).2 See Wilhelm, 680 F.3d at 1123; 4 Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (When prison officials stand accused of 5 using excessive force in violation of the Eighth Amendment, the core judicial inquiry is 6 “whether force was applied in a good-faith effort to maintain or restore discipline, or 7 maliciously and sadistically to cause harm.”); Rhodes v. Robinson, 408 F.3d 559, 567-68 8 (9th Cir. 2005) (First Amendment retaliation claim requires prisoner to allege: “(1) . . . a 9 state actor took some adverse action against [him] (2) because of (3) that prisoner’s 10 protected conduct, and that such action (4) chilled the inmate’s exercise of his First 11 Amendment rights, and (5) the action did not reasonably advance a legitimate 12 correctional goal.”). 13 Therefore, the Court will order the U.S. Marshal to effect service upon Defendants 14 on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and 15 serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 4(c)(3) (“[T]he 16 court may order that service be made by a United States marshal or deputy marshal . . . if 17 the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 18 IV. Conclusion and Orders 19 Good cause appearing, the Court: 20 1. 21 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 3); 22 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 23 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 24 monthly payments from his account in an amount equal to twenty percent (20%) of the 25 26 27 28                                                 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). 2 5 17cv560 1 preceding month’s income and forwarding those payments to the Clerk of the Court each 2 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 3 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 4 ASSIGNED TO THIS ACTION; 5 6 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; 7 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 8 No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for 9 Defendants. In addition, the Clerk will provide Plaintiff with a certified copy of this 10 Order, a certified copy of his Complaint and the summons so that he may serve these 11 Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s 12 as completely and accurately as possible, include an address where each Defendant may 13 be found, and return them to the United States Marshal according to the instructions the 14 Clerk provides in the letter accompanying his IFP package; 15 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 16 upon Defendants as directed by Plaintiff on the USM Form 285s provided to him. All 17 costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); FED. 18 R. CIV. P. 4(c)(3); 19 6. ORDERS Defendants, once served, to reply to Plaintiff’s Complaint within 20 the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). 21 See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive 22 the right to reply to any action brought by a prisoner confined in any jail, prison, or other 23 correctional facility under section 1983,” once the Court has conducted its sua sponte 24 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a 25 preliminary determination based on the face on the pleading alone that Plaintiff has a 26 “reasonable opportunity to prevail on the merits,” defendant is required to respond); and 27 /// 28 /// 6 17cv560 1 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 2 serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’ 3 counsel, a copy of every further pleading, motion, or other document submitted for the 4 Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every 5 original document he seeks to file with the Clerk of the Court, a certificate stating the 6 manner in which a true and correct copy of that document has been was served on 7 Defendants or their counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. Any 8 document received by the Court which has not been properly filed with the Clerk, or 9 which fails to include a Certificate of Service upon Defendants, may be disregarded. 10 IT IS SO ORDERED. 11 12 13 14 Dated: April 17, 2017 Hon. Cynthia Bashant United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 17cv560

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