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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ORDER:

Plaintiff,

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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.

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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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Jami Johnson (“Plaintiff”), currently incarcerated at California State Prison,

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located in Corcoran, California, and proceeding pro se, has filed a civil-rights complaint

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

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Plaintiff claims Defendants, all correctional officials at Richard J. Donovan

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Correctional Facility (“RJD”) in San Diego, California, used excessive force against him

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and retaliated against him while he was incarcerated there in 2016.

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Plaintiff did not pay the $400 civil filing fee required to commence a civil action

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

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Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 3.)

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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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$400.1 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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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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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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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 an Accountant Specialist at

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Corcoran. See ECF No. 3 at 4-7; 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 $91.47 and average monthly deposits of $121.10 to his account over the 6-

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

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balance of $2.01 at the time of filing. See ECF No. 3 at 7. Thus, the Court assesses

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Plaintiff’s initial partial filing fee to be $24.22 pursuant to 28 U.S.C. § 1915(b)(1), but

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acknowledges he may be unable to pay any 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.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 3),

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declines to exact the initial $24.22 initial filing fee because his prison certificate indicates

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

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the California Department of Corrections and Rehabilitation (“CDCR”), or his designee,

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

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and forward them to the Clerk of the Court pursuant to the installment payment

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

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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-

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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).2 See Wilhelm, 680 F.3d at 1123;

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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.”); Rhodes v. Robinson, 408 F.3d 559, 567-68

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(9th Cir. 2005) (First Amendment retaliation claim requires prisoner to allege: “(1) . . . a

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state actor took some adverse action against [him] (2) because of (3) that prisoner’s

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protected conduct, and that such action (4) chilled the inmate’s exercise of his First

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Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.”).

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

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

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serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 4(c)(3) (“[T]he

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court may order that service be made by a United States marshal or deputy marshal . . . if

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the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).

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IV.

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. 3);

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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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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).

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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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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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4.

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. In addition, the Clerk will provide Plaintiff with a certified copy of this

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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

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

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

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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 as directed by Plaintiff on the USM Form 285s provided to him. All

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costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); FED.

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R. CIV. P. 4(c)(3);

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ORDERS Defendants, once served, to reply to Plaintiff’s Complaint within

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the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a).

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See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive

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the right to reply to any action brought by a prisoner confined in any jail, prison, or other

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correctional facility under section 1983,” once the Court has conducted its sua sponte

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screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a

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preliminary determination based on the face on the pleading alone that Plaintiff has a

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“reasonable opportunity to prevail on the merits,” defendant is required to respond); and

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7.

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

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serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’

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counsel, a copy of every further pleading, motion, or other document submitted for the

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Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every

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original document he seeks to file with the Clerk of the Court, a certificate stating the

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manner in which a true and correct copy of that document has been was served on

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Defendants or their counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. Any

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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, may be disregarded.

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IT IS SO ORDERED.

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Dated: April 17, 2017
Hon. Cynthia Bashant
United States District Judge

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