Hammler v. Alvarez et al

Filing 8

ORDER granting 7 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). (Summons and IFP package prepared). Signed by Judge John A. Houston on 2/13/2018. (All non-registered users served via U.S. Mail Service)(jpp)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

ALLEN HAMMLER,
CDCR #F-73072,

15
16
17
18

ORDER:

Plaintiff,

13
14

Case No.: 3:17-cv-01533-JAH-WVG

vs.

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 7]

J. ALVAREZ, Correctional Officer;
SOTO, Correctional Officer;
J. NEVAREZ, Correctional Officer;
HOUGH, Correctional Officer,

AND

Defendants.

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

19
20
21
22

ALLEN HAMMLER (“Plaintiff”), currently incarcerated at Kern Valley State

23

Prison (“KVSP”) in Delano, California, and proceeding pro se, has filed this civil rights

24

action pursuant to 42 U.S.C. § 1983 (ECF No. 1).

25

Plaintiff claims Defendants Alvarez, Soto, Nevarez, and Hough, all Correctional

26

Officers at Richard J. Donovan Correctional Facility (‘RJD”) in San Diego, California,

27

used excessive force against him while he was incarcerated there on October 20, 2016, in

28

violation of the Eighth Amendment. See Compl., ECF No. 1 at 1-15, ¶¶ 1-28. Plaintiff
1
3:17-cv-01533-JAH-WVG

1

alleges to have exhausted available administrative remedies “up and through the Third

2

Level of Review” via CDC 602 Log No. RJD-B-16-04421, his Complaint is verified

3

under penalty of perjury, and he seeks $300,000 in general and punitive damages. Id. at

4

15-16, 18.1

5

Plaintiff has not paid the civil filing fee required by 28 U.S.C. § 1914(a); instead

6

he has filed a Motion to Proceed In Forma Pauperis pursuant to 28 U.S.C. § 1915(a)

7

(ECF No. 7).

8

I.

9

Motion to Proceed In Forma Pauperis
All parties instituting any civil action, suit or proceeding in a district court of the

10

United States, except an application for writ of habeas corpus, must pay a filing fee of

11

$400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

12

prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

13

§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

14

Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed

15

IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v.

16

Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182,

17

1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28

18
19
1

25

The Court takes judicial notice that Plaintiff has another civil rights action currently
pending before Judge Battaglia in Hammler v. Aviles, S.D. Cal. Civil Case No. 3:17-cv01185-AJB-WVG (“Aviles”). See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007)
(court “‘may take notice of proceedings in other courts, both within and without the federal
judicial system, if those proceedings have a direct relation to matters at issue.’”) (quoting
Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). While Aviles also
involves an alleged incident of excessive force at RJD, the two cases appear unrelated
insofar as they involve different correctional officer defendants and allege separate causes
of action arising more than several weeks apart. See Aviles, ECF No. 1 at 1, 3-9.

26

2

20
21
22
23
24

27
28

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-01533-JAH-WVG

1

U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

2

Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

3

“certified copy of the trust fund account statement (or institutional equivalent) for ... the

4

6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

5

§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

6

trust account statement, the Court assesses an initial payment of 20% of (a) the average

7

monthly deposits in the account for the past six months, or (b) the average monthly

8

balance in the account for the past six months, whichever is greater, unless the prisoner

9

has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

10

custody of the prisoner then collects subsequent payments, assessed at 20% of the

11

preceding month’s income, in any month in which his account exceeds $10, and forwards

12

those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);

13

Bruce, 136 S. Ct. at 629.

14

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

15

Statement Report as well as a Prison Certificate completed by an accounting officer at

16

KVSP. See ECF No. 7 at 4-8; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews,

17

398 F.3d at 1119. These statements show that Plaintiff has carried no average monthly

18

balance, has had no monthly deposits to his account over the 6-month period immediately

19

preceding the filing of his Complaint, and, consequently, had no available balance on the

20

books at the time of filing. See ECF No. 7 at 4, 7. Based on this accounting, no initial

21

partial filing fee is assessed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event

22

shall a prisoner be prohibited from bringing a civil action or appealing a civil action or

23

criminal judgment for the reason that the prisoner has no assets and no means by which to

24

pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850

25

(finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a

26

prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds available

27

to him when payment is ordered.”).

28

///
3
3:17-cv-01533-JAH-WVG

Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 7),

1
2

declines to exact any initial filing fee because his prison certificate indicates he has “no

3

means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California

4

Department of Corrections and Rehabilitation (“CDCR”), or his designee, to instead

5

collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and

6

forward them to the Clerk of the Court pursuant to the installment payment provisions set

7

forth in 28 U.S.C. § 1915(b)(1). See id.

8

II.

9

Sua Sponte Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b)
Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

10

answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

11

statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

12

it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

13

who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

14

(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

15

2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

16

the targets of frivolous or malicious suits need not bear the expense of responding.’”

17

Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

18

Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

19

“The standard for determining whether a plaintiff has failed to state a claim upon

20

which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

21

Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

22

F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

23

Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

24

applied in the context of failure to state a claim under Federal Rule of Civil Procedure

25

12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

26

as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

27

662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

28

///
4
3:17-cv-01533-JAH-WVG

1

Detailed factual allegations are not required, but “[t]hreadbare recitals of the

2

elements of a cause of action, supported by mere conclusory statements, do not suffice.”

3

Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

4

relief [is] ... a context-specific task that requires the reviewing court to draw on its

5

judicial experience and common sense.” Id. The “mere possibility of misconduct” or

6

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

7

this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

8

(9th Cir. 2009).
As currently pleaded, the Court finds Plaintiff’s Complaint contains “sufficient

9
10

factual matter, accepted as true,” to state excessive force claims for relief that are

11

“plausible on its face,” Iqbal, 556 U.S. at 678, and therefore, sufficient to survive the

12

“low threshold” for proceeding past the sua sponte screening required by 28 U.S.C.

13

§§ 1915(e)(2) and 1915A(b).3 See Wilhelm, 680 F.3d at 1123; Hudson v. McMillian, 503

14

U.S. 1, 6-7 (1992) (When prison officials stand accused of using excessive force in

15

violation of the Eighth Amendment, the core judicial inquiry is “... whether force was

16

applied in a good-faith effort to maintain or restore discipline, or maliciously and

17

sadistically to cause harm.”).

18

Therefore, the Court will order the U.S. Marshal to effect service upon Defendants

19

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

20

serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 4(c)(3) (“[T]he

21

court may order that service be made by a United States marshal or deputy marshal ... if

22

the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).

23

///

24

///

25
26
27
28

Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative
of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may
choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007).
3

5
3:17-cv-01533-JAH-WVG

1

III.

Conclusion and Orders

2

For the reasons discussed, the Court:

3

1)

GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 7);

4

2)

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

5

Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing

6

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

7

preceding month’s income and forwarding those payments to the Clerk of the Court each

8

time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

9

PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

10
11
12
13

ASSIGNED TO THIS ACTION;
3)

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;
4)

DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF

14

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

15

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

16

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

17

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

18

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

19

served, see S.D. CAL. CIVLR 4.1.c, and return them to the United States Marshal

20

according to the instructions the Clerk provides in the letter accompanying his IFP

21

package;

22

5)

ORDERS the U.S. Marshal to serve a copy of the Complaint and summons

23

upon Defendants as directed by Plaintiff on the USM Form 285 provided to him. All

24

costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); FED.

25

R. CIV. P. 4(c)(3);

26

6)

ORDERS Defendants, once served, to reply to Plaintiff’s Complaint within

27

the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a).

28

See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive
6
3:17-cv-01533-JAH-WVG

1

the right to reply to any action brought by a prisoner confined in any jail, prison, or other

2

correctional facility under section 1983,” once the Court has conducted its sua sponte

3

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

4

preliminary determination based on the face on the pleading alone that Plaintiff has a

5

“reasonable opportunity to prevail on the merits,” defendant is required to respond); and

6

7)

ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

7

serve upon Defendants or, if appearance has been entered by counsel, upon Defendants’

8

counsel, a copy of every further pleading, motion, or other document submitted for the

9

Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every

10

original document he seeks to file with the Clerk of the Court, a certificate stating the

11

manner in which a true and correct copy of that document has been was served on

12

Defendants or Defendants’ counsel, and the date of that service. See S.D. CAL. CIVLR

13

5.2. Any document received by the Court which has not been properly filed with the

14

Clerk, or which fails to include a Certificate of Service upon the Defendants, may be

15

disregarded.

16

IT IS SO ORDERED.

17
18

Dated: February 13, 2018

19
20
21
22

___________________________________
HON. JOHN A. HOUSTON
United States District Judge

23
24
25
26
27
28
7
3:17-cv-01533-JAH-WVG