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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UNITED STATES DISTRJCT COURT

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SOUTHERN DISTRJCT OF CALIFORNIA

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Case No.: 3:17-cv-01454-BEN-BGS

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ARTHUR LEE SMART
V-55495,

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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.

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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)

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Arthur Lee Smart ("Plaintiff'), currently incarcerated at California State Prison -

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LAC located in Lancaster, California, and proceeding pro se, has filed a civil rights

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complaint ("Comp!.") pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff did not prepay

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the civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to

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Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).

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Ill

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Ill
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3:17-cv-01454-BEN-BGS

1 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en bane)(§ 1915(e)(2)); Rhodes v.
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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

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the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are

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not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Determining

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whether a complaint states a plausible claim for relief [is] ... a context-specific task that

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requires the reviewing court to draw on its judicial experience and common sense." Id.

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The "mere possibility of misconduct" falls short of meeting this plausibility standard.

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Id.; see also Moss v. US. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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"When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement to relief"

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Iqbal, 556 U.S. at 679; see also Resnickv. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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("[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to

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the plaintiff."); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that§

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1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)").

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However, while the court "ha[s] an obligation where the petitioner is prose,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt," Heb be v. Pliler, 627 F .3d 338, 342 & n. 7 (9th Cir.

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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not

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"supply essential elements of claims that were not initially pled." Ivey v. Board of

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Regents of the University ofAlaska, 673 F.2d 266, 268 (9th Cir. 1982).

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As currently pleaded, the Court finds the allegations in Plaintiffs Complaint are

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sufficient to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and

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1915A(b). Accordingly, the Court will direct the U.S. Marshal to effect service on
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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
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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 informa pauperis under 28 U.S.C. § 1915.").

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III.

Conclusion and Order

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Good cause appearing, IT IS HEREBY ORDERED that:

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1.

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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

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prison trust account the $350 filing fee owed in this case by collecting monthly payments

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

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

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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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3.

The Clerk of the Court is directed to serve a copy of this Order on Scott

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Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box

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942883, Sacramento, California, 94283-0001.

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IT IS FURTHER ORDERED that:

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The Clerk is DIRECTED to issue a summons as to Plaintiff's Complaint

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(ECF No. 1) upon Defendants and forward it to Plaintiff along with blank U.S. Marshal

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Form 285s for each named Defendant. In addition, the Clerk is directed provide Plaintiff

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with a certified copy of this Order and a certified copy of his Complaint (ECF No. 1) and

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the summons so that he may serve each named Defendant. Upon receipt of this "IFP

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Package," Plaintiff is directed to complete the Form 285s as completely and accurately as

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possible, and to return them to the United States Marshal according to the instructions

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provided by the Clerk in the letter accompanying his IFP package.
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3:17-cv-01454-BEN-BGS

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5.

Upon receipt, the U.S. Marshal is ORDERED to serve a copy of the

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Complaint and summons upon the named Defendants as directed by Plaintiff on the USM

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Form 285s. All costs of service will be advanced by the United States. See 28 U.S.C.

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§ 1915(d); Fed.R.Civ.P. 4(c)(3).

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6.

Defendants are thereafter ORDERED to reply to Plaintiff's Complaint

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

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

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''waive the right to reply to any action brought by a prisoner confined in any jail, prison,

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or other correctional facility under section 1983," once the Court has conducted its sua

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

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a 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," the defendant is required to respond).

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7.

Plaintiff must serve upon the Defendants or, if appearance has been entered

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by counsel, upon Defendants' counsel, a copy of every further pleading or other

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document submitted for consideration by the Court. Plaintiff must include with the

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original paper to be filed with the Clerk of the Court, a certificate stating the manner in

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which a true and correct copy of the document was served on the Defendants, or counsel

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for Defendants, and the date of that service. Any paper received by the Court which has

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not been properly filed with the Clerk, or which fails to include a Certificate of Service,

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may be disregarded.

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DATED: August(, 2017
United States District Judge

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3: l 7-cv-01454-BEN-BGS