Gil v. Sanchez et al

Filing 3

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. US Marshal shall effect service of complaint. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in th is 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 to Secretary of CDCR) (IFP Package prepared). Signed by Judge Cathy Ann Bencivengo on 5/15/2017. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (jjg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Case No.: 3:17-cv-0698-CAB-JMA RUBEN GIL CDCR #T-95819, 13 14 15 16 17 ORDER: Plaintiff, 1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) (ECF No. 2) v. CAPTAIN SANCHEZ; LIEUTENANT WILLIAMS, Defendants. AND 18 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) 19 20 21 22 23 Ruben Gil (“Plaintiff”), currently incarcerated at R.J. Donovan Correctional 24 Facility located in San Diego, California, and proceeding pro se, has filed a civil rights 25 complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff did not prepay 26 the civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to 27 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 1 3:17-cv-0698-CAB-JMA I:\Everyone\_EFILE-PROSE\CAB\17cv0698-grt IFP & serve.docm 1 I. 2 Plaintiff’s Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, if 7 a prisoner, like Plaintiff, is granted leave to proceed IFP, he remains obligated to pay the 8 entire fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 9 regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & 10 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 11 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 12 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of the 13 trust fund account statement (or institutional equivalent) for the prisoner for the six- 14 month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly 18 balance in the account for the past six months, whichever is greater, unless the prisoner 19 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 20 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 21 preceding month’s income, in any month in which the prisoner’s account exceeds $10, 22 and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 23 § 1915(b)(2). 24 25 26 27 1 In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, 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) (eff. May 1, 2013). However, the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id. 2 3:17-cv-0698-CAB-JMA I:\Everyone\_EFILE-PROSE\CAB\17cv0698-grt IFP & serve.docm 1 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 2 account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. Andrews, 3 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement, but it 4 shows that he has a current available balance of 0.04. See 28 U.S.C. § 1915(b)(4) 5 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action 6 or appealing a civil action or criminal judgment for the reason that the prisoner has no 7 assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 8 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of 9 a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 10 available to him when payment is ordered.”). 11 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 12 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 13 balance of the filing fees mandated will be collected by the California Department of 14 Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court 15 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 16 II. 17 Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the 18 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP 19 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] 20 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 21 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as 22 soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under 23 these statutes, the Court must sua sponte dismiss complaints, or any portions thereof, 24 which are frivolous, malicious, fail to state a claim, or which seek damages from 25 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. 26 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. 27 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 3 3:17-cv-0698-CAB-JMA I:\Everyone\_EFILE-PROSE\CAB\17cv0698-grt IFP & serve.docm 1 All complaints must contain “a short and plain statement of the claim showing that 2 the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are 3 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 4 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 5 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 6 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 7 requires the reviewing court to draw on its judicial experience and common sense.” Id. 8 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 9 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 10 “When there are well-pleaded factual allegations, a court should assume their 11 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 12 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 13 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 14 allegations of material fact and must construe those facts in the light most favorable to 15 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 16 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 17 However, while the court “ha[s] an obligation where the petitioner is pro se, 18 particularly in civil rights cases, to construe the pleadings liberally and to afford the 19 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 20 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 21 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 22 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 23 As currently pleaded, the Court finds Eighth Amendment allegations in Plaintiff’s 24 Complaint which are sufficient to survive the sua sponte screening required by 28 U.S.C. 25 §§ 1915(e)(2) and 1915A(b). Accordingly, the Court will direct the U.S. Marshal to 26 effect service on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court 27 shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed.R.Civ.P. 4 3:17-cv-0698-CAB-JMA I:\Everyone\_EFILE-PROSE\CAB\17cv0698-grt IFP & serve.docm 1 4(c)(3) (“[T]he court may order that service be made by a United States marshal or 2 deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 3 U.S.C. § 1915.”). 4 III. Conclusion and Order 5 Good cause appearing, IT IS HEREBY ORDERED that: 6 1. 7 8 9 Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2) is GRANTED. 2. The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly payments 10 from the account in an amount equal to twenty percent (20%) of the preceding month’s 11 income and forward payments to the Clerk of the Court each time the amount in the 12 account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 13 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 14 TO THIS ACTION. 15 3. The Clerk of the Court is directed to serve a copy of this Order on Scott 16 Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 17 942883, Sacramento, California, 94283-0001. 18 IT IS FURTHER ORDERED that: 19 4. The Clerk is DIRECTED to issue a summons as to Plaintiff’s Complaint 20 (ECF No. 1) upon Defendants and forward it to Plaintiff along with blank U.S. Marshal 21 Form 285s for each named Defendant. In addition, the Clerk is directed provide Plaintiff 22 with a certified copy of this Order and a certified copy of his Complaint (ECF No. 1) and 23 the summons so that he may serve each named Defendant. Upon receipt of this “IFP 24 Package,” Plaintiff is directed to complete the Form 285s as completely and accurately as 25 possible, and to return them to the United States Marshal according to the instructions 26 provided by the Clerk in the letter accompanying his IFP package. 27 5 3:17-cv-0698-CAB-JMA I:\Everyone\_EFILE-PROSE\CAB\17cv0698-grt IFP & serve.docm 1 5. Upon receipt, the U.S. Marshal is ORDERED to serve a copy of the 2 Complaint and summons upon the named Defendants as directed by Plaintiff on the USM 3 Form 285s. All costs of service will be advanced by the United States. See 28 U.S.C. 4 § 1915(d); Fed.R.Civ.P. 4(c)(3). 5 6. Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint 6 within the time provided by the applicable provisions of Federal Rule of Civil Procedure 7 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to 8 “waive the right to reply to any action brought by a prisoner confined in any jail, prison, 9 or other correctional facility under section 1983,” once the Court has conducted its sua 10 sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made 11 a preliminary determination based on the face on the pleading alone that Plaintiff has a 12 “reasonable opportunity to prevail on the merits,” the defendant is required to respond). 13 7. Plaintiff must serve upon the Defendants or, if appearance has been entered 14 by counsel, upon Defendants’ counsel, a copy of every further pleading or other 15 document submitted for consideration by the Court. Plaintiff must include with the 16 original paper to be filed with the Clerk of the Court, a certificate stating the manner in 17 which a true and correct copy of the document was served on the Defendants, or counsel 18 for Defendants, and the date of that service. Any paper received by the Court which has 19 not been properly filed with the Clerk, or which fails to include a Certificate of Service, 20 may be disregarded. 21 Dated: May 15, 2017 22 23 24 25 26 27 6 3:17-cv-0698-CAB-JMA I:\Everyone\_EFILE-PROSE\CAB\17cv0698-grt IFP & serve.docm

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