Sims v. Walker et al

Filing 6

ORDER 1) Granting 2 Motion for Leave to Proceed in forma pauperis and 2) Directing US Marshal to Effect service of complaint and Summons Pursuant to 28 U.S.C. 1915(d) and Fed. R. Civ. P. 4(c)(3). The Secretary CDCR, or his designee, is ordered t o 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 payme nts 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) (copy of this Order served on Scott Kernan, Secretary, CDCR) Signed by Judge Cathy Ann Bencivengo on 6/29/2017. (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 DARIUS SIMS, CDCR #T-51521, Case No.: 3:17-cv-0722-CAB-JLB 13 14 ORDER: Plaintiff, vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2] 15 16 17 18 R. WALKER; J.K. CHAU; D.J. CLAYTON; R. BARECHI; D. STRAYHORN; AND 2) DIRECTING U.S. MARSHAL TO EFFCECT SERVICE OF COMPLAINT AND SUMMONS PURSUANT TO 28 U.S.C. § 1915(d) AND Fed. R. Civ. P. 4(c)(3) Defendants. 19 20 21 22 23 Darius Sims (“Plaintiff”), currently incarcerated at Richard J. Donovan 24 Correctional Facility (“RJD”), and proceeding pro se, has filed a civil rights complaint 25 pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff did not prepay the civil filing fee 26 required by 28 U.S.C. § 1914(a) when he filed his Complaint; instead, he filed a Motion 27 to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2), 28 followed by exhibits in support of his Complaint (ECF No. 5). 1 3:17-cv-0722-CAB-JLB 1 I. 2 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 $400.1 See 28 U.S.C. § 1914(a). The 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, 7 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in 8 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 9 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 10 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 11 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 14 6-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 having 20 custody of the prisoner then collects subsequent payments, assessed at 20% of the 21 preceding month’s income, in any month in which his account exceeds $10, and forwards 22 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 23 Bruce, 136 S. Ct. at 629. 24 25 26 27 28 1 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. 2 3:17-cv-0722-CAB-JLB 1 In support of his IFP Motion, Plaintiff has submitted a CDCR Inmate Statement 2 Report demonstrating his trust account activity and balances for the six-months preceding 3 the filing of his Complaint. See ECF No. 3 at 1-2; 28 U.S.C. § 1915(a)(2); S.D. CAL. 4 CIVLR 3.2; Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s prison 5 certificate, but it shows that he has a current available balance of zero. See 28 U.S.C. 6 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 7 civil action or appealing a civil action or criminal judgment for the reason that the 8 prisoner has no assets and no means by which to pay the initial partial filing fee.”); 9 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 10 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to 11 the lack of funds available to him when payment is ordered.”). 12 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 13 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 14 balance of the filing fees mandated will be collected by the California Department of 15 Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court 16 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 17 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 18 A. 19 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a Standard of Review 20 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 21 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 22 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 23 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 24 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 25 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 26 the targets of frivolous or malicious suits need not bear the expense of responding.’” 27 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 28 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 3 3:17-cv-0722-CAB-JLB 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 4 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 5 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 7 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 8 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 9 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 11 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 12 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 13 relief [is] ... a context-specific task that requires the reviewing court to draw on its 14 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 15 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 16 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 17 (9th Cir. 2009). 18 Finally, in deciding whether Plaintiff has stated a plausible claim for relief, the 19 Court may consider exhibits attached to his Complaint. See FED. R. CIV. P. 10(c) (“A 20 copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all 21 purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 22 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 23 426 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may 24 be considered” in ruling on a Rule 12(b)(6) motion to dismiss.)). 25 //// 26 //// 27 //// 28 4 3:17-cv-0722-CAB-JLB Here, the Court finds Plaintiff’s Complaint sufficient to survive the “low 1 2 threshold” for proceeding past the sua sponte screening required by 28 U.S.C. 3 §§ 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 4 2012; Iqbal, 556 U.S. at 678; Estelle v. Gamble, 429 U.S. 97, 105-06 (1976) (prison 5 officials are liable if they act with deliberate indifferent to a prisoner’s serious medical 6 needs); id. at 104 (deliberate indifference “is manifested by prison [officials] intentionally 7 denying or delaying access to medical care.”). 8 Therefore, the Court will direct the U.S. Marshal to effect service of summons 9 Plaintiff’s Complaint on his behalf. See 28 U.S.C. § 1915(d) (“The officers of the court 10 shall issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 11 4(c)(3) (“[T]he court may order that service be made by a United States marshal or 12 deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 13 U.S.C. § 1915.”). 14 III. Conclusion and Order 15 For the reasons explained, the Court: 16 1. 17 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 18 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 19 Plaintiff’s trust account the $350 filing fee owed in this case by collecting monthly 20 payments from the account in an amount equal to twenty percent (20%) of the preceding 21 month’s income and forward payments to the Clerk of the Court each time the amount in 22 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 23 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 24 TO THIS ACTION. 25 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott 26 Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 27 //// 28 //// 5 3:17-cv-0722-CAB-JLB 1 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 2 No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each 3 Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of this Order, 4 certified copies of his Complaint and Exhibits (ECF No. 1, 5), and the summons so that 5 he may serve Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete 6 the USM Form 285s as completely and accurately as possible, include an address where 7 each named Defendant may be found and/or subject to service, and return them to the 8 United States Marshal according to the instructions the Clerk provides in the letter 9 accompanying his IFP package. 10 5. ORDERS the U.S. Marshal to serve a copy of the Complaint, Exhibits 11 (ECF No. 5) and summons upon the Defendants as directed by Plaintiff on the USM 12 Form 285s provided to him. All costs of that service will be advanced by the United 13 States. See 28 U.S.C. § 1915(d); FED. R. CIV. P. 4(c)(3). 14 6. ORDERS Defendants, once they have been served, to reply to Plaintiff’s 15 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 16 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be 17 permitted to “waive the right to reply to any action brought by a prisoner confined in any 18 jail, prison, or other correctional facility under section 1983,” once the Court has 19 conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), 20 and thus, has made a preliminary determination based on the face on the pleading alone 21 that Plaintiff has a “reasonable opportunity to prevail on the merits,” defendant is 22 required to respond). 23 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 24 serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’ 25 counsel, a copy of every further pleading, motion, or other document submitted for the 26 Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every 27 original document he seeks to file with the Clerk of the Court, a certificate stating the 28 manner in which a true and correct copy of that document has been was served on 6 3:17-cv-0722-CAB-JLB 1 Defendants or their counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. Any 2 document received by the Court which has not been properly filed with the Clerk or 3 which fails to include a Certificate of Service upon the Defendants, or their counsel, may 4 be disregarded. 5 6 IT IS SO ORDERED. Dated: June 29, 2017 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 3:17-cv-0722-CAB-JLB

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