Arthur Lee Smart v. E. Ortiz et al

Filing 8

ORDER: (1) Granting Plaintiff's Motion to Proceed in Forma Pauperis; and (2) Directing U.S. Marshal to Effect Service of Summons and Complaint. 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 from the account in an amount equal to twenty percent (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 U.S.C. § 1915(b)(2). Signed by Judge Roger T. Benitez on 8/9/2017.(Order electronically transmitted to Secretary of CDCR)(All non-registered users served via U.S. Mail Service)(knb)

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c 1' ·L' t:.= r lo 1 ~ # ~i AUG -9 PH 2 2: SS 3 4 5 6 7 8 UNITED STATES DISTRJCT COURT 9 SOUTHERN DISTRJCT OF CALIFORNIA 10 Case No.: 3:17-cv-01454-BEN-BGS 11 12 ARTHUR LEE SMART V-55495, 13 14 15 16 ORDER: Plaintiff, 1) GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a); and v. E. ORTIZ; J. BENAVIDEZ; R. DIZON; P. BRACAMONTE, Defendants. 17 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) 18 19 20 21 Arthur Lee Smart ("Plaintiff'), currently incarcerated at California State Prison - 22 LAC located in Lancaster, California, and proceeding pro se, has filed a civil rights 23 complaint ("Comp!.") pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff did not prepay 24 the civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to 25 Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 26 Ill 27 Ill 1 3:17-cv-01454-BEN-BGS 1 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en bane)(§ 1915(e)(2)); Rhodes v. 2 3 Robinson, 621F.3d1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). All complaints must contain "a short and plain statement of the claim showing that 4 the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are 5 not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by 6 mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 7 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Determining 8 whether a complaint states a plausible claim for relief [is] ... a context-specific task that 9 requires the reviewing court to draw on its judicial experience and common sense." Id. 10 The "mere possibility of misconduct" falls short of meeting this plausibility standard. 11 Id.; see also Moss v. US. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 12 "When there are well-pleaded factual allegations, a court should assume their 13 veracity, and then determine whether they plausibly give rise to an entitlement to relief" 14 Iqbal, 556 U.S. at 679; see also Resnickv. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 15 ("[W]hen determining whether a complaint states a claim, a court must accept as true all 16 allegations of material fact and must construe those facts in the light most favorable to 17 the plaintiff."); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that§ 18 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). 19 However, while the court "ha[s] an obligation where the petitioner is prose, 20 particularly in civil rights cases, to construe the pleadings liberally and to afford the 21 petitioner the benefit of any doubt," Heb be v. Pliler, 627 F .3d 338, 342 & n. 7 (9th Cir. 22 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 23 "supply essential elements of claims that were not initially pled." Ivey v. Board of 24 Regents of the University ofAlaska, 673 F.2d 266, 268 (9th Cir. 1982). 25 As currently pleaded, the Court finds the allegations in Plaintiffs Complaint are 26 sufficient to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 27 1915A(b). Accordingly, the Court will direct the U.S. Marshal to effect service on 4 3:17-cv-01454-BEN-BGS 1 Plaintiff's behalf. See 28 U.S.C. § 1915(d) ("The officers of the court shall issue and 2 serve all process, and perform all duties in [IFP] cases."); Fed.R.Civ.P. 4(c)(3) ("[T]he 3 court may order that service be made by a United States marshal or deputy marshal ... if 4 the plaintiff is authorized to proceed informa pauperis under 28 U.S.C. § 1915."). 5 III. Conclusion and Order 6 Good cause appearing, IT IS HEREBY ORDERED that: 7 1. 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 10 prison trust account the $350 filing fee owed in this case by collecting monthly payments 11 from the account in an amount equal to twenty percent (20%) of the preceding month's 12 income and forward payments to the Clerk of the Court each time the amount in the 13 account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 14 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 15 TO THIS ACTION. 16 3. The Clerk of the Court is directed to serve a copy of this Order on Scott 17 Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 18 942883, Sacramento, California, 94283-0001. 19 IT IS FURTHER ORDERED that: 20 4. The Clerk is DIRECTED to issue a summons as to Plaintiff's Complaint 21 (ECF No. 1) upon Defendants and forward it to Plaintiff along with blank U.S. Marshal 22 Form 285s for each named Defendant. In addition, the Clerk is directed provide Plaintiff 23 with a certified copy of this Order and a certified copy of his Complaint (ECF No. 1) and 24 the summons so that he may serve each named Defendant. Upon receipt of this "IFP 25 Package," Plaintiff is directed to complete the Form 285s as completely and accurately as 26 possible, and to return them to the United States Marshal according to the instructions 27 provided by the Clerk in the letter accompanying his IFP package. 5 3:17-cv-01454-BEN-BGS 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 22 23 DATED: August(, 2017 United States District Judge 24 25 26 27 6 3: l 7-cv-01454-BEN-BGS

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