Johnson v. De La Trinidad et al

Filing 11

ORDER (1) Granting Motion To Proceed In Forma Pauperis (Dkt # 2 ) And (2) Directing U.S. Marshal To Effect Service Of Complaint And Summons: Plaintiff's Motion to Appoint Counsel (Dkt # 9 ) is denied without prejudice. The Secretary CDCR, or h is designee, is ordered to collect from Plaintiff's trust account the $350 filing fee owed in this case by collecting monthly payments from the account in an amount equal to 20% of the preceding month's income 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). Signed by Judge William Q. Hayes on 8/29/2017. (IFP package prepared for mailing to plaintiff. Order electronically transmitted to Secretary of CDCR. Per Order, a copy also was mailed to Secretary of CDCR.) (mdc)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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SEDRIC EUGENE JOHNSON,
CDCR #AZ-2648,

ORDER:

Plaintiff,

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Case No.: 3:17-cv-0731-WQH-MDD

vs.

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2]

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A. DE LA TRINIDAD; R. FLORES; J.
SOTO; D. LAMONT;

AND

Defendants.

2) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE OF
COMPLAINT AND SUMMONS
PURSUANT TO 28 U.S.C. § 1915(d)
AND Fed. R. Civ. P. 4(c)(3)

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Sedric Eugene Johnson (“Plaintiff”), currently incarcerated at Kern Valley State

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Prison, and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C.

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§ 1983 (ECF No. 1). Plaintiff did not prepay the civil filing fee required by 28 U.S.C.

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§ 1914(a) when he filed his Complaint; instead, he filed a Motion to Proceed In Forma

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Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2), and later filed a Motion

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for Appointment of Counsel (ECF No. 9).

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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). However,

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prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in

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“increments” or “installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v.

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Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their action is

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ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d

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844, 847 (9th Cir. 2002).

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Section 1915(a)(2) also 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) & (b)(4). The institution having custody of the

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

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income, in any month in which his account exceeds $10, and forwards those payments to

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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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the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct.

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at 629.

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

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Report demonstrating his trust account activity and balances for the six-months preceding

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the filing of his Complaint. See ECF No. 2 at 4, 6-7; 28 U.S.C. § 1915(a)(2); S.D. CAL.

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CIVLR 3.2; Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s prison

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certificate, but it shows that he has a current available balance of zero. 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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Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve”

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preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to

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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) and

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assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350

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balance of the filing fees mandated will be collected by the California Department of

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Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court

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pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

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II.

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Motion for Appointment of Counsel
Plaintiff seeks appointed counsel in this matter on the grounds that he is indigent

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and “lacks the credentials to advocate myself to the Courts [sic] standards[.]” (ECF No.

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9 at 3). However, there is no constitutional right to counsel in a civil case. Lassiter v.

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Dep’t of Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th

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Cir. 2009). And while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion

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to “request” that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp.

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of America, 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion may be exercised only

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under “exceptional circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991). A finding of exceptional circumstances requires the Court “to consider
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whether there is a ‘likelihood of success on the merits’ and whether ‘the prisoner is

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unable to articulate his claims in light of the complexity of the legal issues involved.’”

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Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Cano v. Taylor,

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739 F.3d 1214, 1218 (9th Cir. 2014)).
The Court denies Plaintiff’s request without prejudice. Nothing in Plaintiff’s

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Complaint or in his Motion to Appoint Counsel suggests he is incapable of articulating

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the factual basis for his discrimination claims, which appear “relatively straightforward.”

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Id. In fact, the Court finds, based on its screening of Plaintiff’s Complaint under the

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standards of review discussed below, that Plaintiff has pleaded sufficient factual content

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to state plausible claims. However, at this initial stage of the pleadings, Plaintiff has not

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yet shown a likelihood of success on the merits. Id. Therefore, the Court finds no

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exceptional circumstances and DENIES his Motion to Appoint Counsel (ECF No. 9) on

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that basis. See, e.g., Cano, 739 F.3d at 1218 (affirming denial of counsel where prisoner

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could articulate his claims in light of the complexity of the issues involved, but did not

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show likelihood of succeed on the merits).

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III.

Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

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A.

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

Standard of Review

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pre-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, 907 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. at 679. The “mere possibility of misconduct”

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or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id. at 678-79; see also Moss v. U.S. Secret Serv., 572 F.3d 962,

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969 (9th Cir. 2009).

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Finally, in deciding whether Plaintiff has stated a plausible claim for relief, the

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Court may consider exhibits attached to his Complaint. See FED. R. CIV. P. 10(c) (“A

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copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all

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purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555

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n.19 (9th Cir. 1989) (“[M]aterial which is properly submitted as part of the complaint

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may be considered” in ruling on a Rule 12(b)(6) motion to dismiss.)).
Plaintiff’s Allegations

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B.

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Plaintiff claims that on August 30, 2016, Centinela State Prison (“CEN”)

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Correctional Officer De La Trinidad used unnecessary and unreasonable force against

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him. (ECF No. 1 at 5.) Plaintiff also claims Correctional Officer Soto observed the

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incident but failed to intervene. Id. Finally, Plaintiff claims Correctional Officer Flores
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applied handcuffs “in a cruel and unusual manner” and Defendant Lamont failed to

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properly “document” and “treat” his injuries. Id.

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Plaintiff seeks injunctive relief, as well as compensatory and punitive damages. Id.
at 7.
Based on these allegations, the Court finds Plaintiff’s Complaint sufficient to

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survive the “low threshold” for proceeding past the sua sponte screening required by 28

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U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at

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678; Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (When prison officials stand accused

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

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is “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.”); Robins v. Meecham, 60 F.3d 1436, 1442

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(9th Cir.1995) (holding that “a prison official can violate a prisoner’s Eighth Amendment

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rights by failing to intervene”); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976) (prison

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officials are liable if they act with deliberate indifferent to a prisoner’s serious medical

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needs); id. at 104 (deliberate indifference “is manifested by prison [officials] intentionally

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denying or delaying access to medical care.”).

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Therefore, the Court will direct the U.S. Marshal to effect service of summons

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

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shall issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P.

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4(c)(3) (“[T]he court may order that service be made by a United States marshal or

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deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28

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U.S.C. § 1915[.]”).

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III.

Conclusion and Order

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For the reasons explained, the Court:

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1.

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DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 9) without

prejudice.
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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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3.

ORDERS the Secretary of the CDCR, or his designee, to collect from

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Plaintiff’s trust account the $350 filing fee owed in this case by collecting monthly

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payments from the account in an amount equal to twenty percent (20%) of the preceding

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month’s income and forward payments to the Clerk of the Court each time the amount in

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the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

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SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED

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TO THIS ACTION.

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4.

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

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No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each

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

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certified copies of his Complaint, and the summons so that he may serve Defendants.

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Upon receipt of this “IFP Package,” Plaintiff must complete the USM Form 285s as

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

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

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according to the instructions the Clerk provides in the letter accompanying his 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 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 they have been served, to reply to Plaintiff’s

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Complaint within the time provided by the applicable provisions of Federal Rule of Civil

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Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be

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permitted to “waive the right to reply to any action brought by a prisoner confined in any

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jail, prison, or other correctional facility under section 1983,” once the Court has

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conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b),
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and thus, has made a preliminary determination based on the face on the pleading alone

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that Plaintiff has a “reasonable opportunity to prevail on the merits,” defendant is

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required to respond).

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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 the Defendants, or their counsel, may

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be disregarded.

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IT IS SO ORDERED.
Dated: August 29, 2017

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