Cushinberry v. Vinson et al

Filing 3

ORDER: (1) Granting 2 Motion to Proceed In Forma Pauperis and (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). Signed by Judge Michael M. Anello on 09/07/2017. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM)(ajs)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 GARY R. CUSHINBERRY, Case No.: 17cv1794-MMA (KSC) Plaintiff, 9 10 v. 11 ORDER: SERGEANT PATRICK VINSON, et al., (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS (Doc. No. 2) Defendants. 12 13 AND 14 (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) 15 16 17 18 19 On September 5, 2017, Plaintiff Gary R. Cushinberry, a non-prisoner proceeding 20 21 pro se, submitted a complaint against Sergean Patrick Vinson and the City of San Diego 22 pursuant to 42 U.S.C. § 1983. Compl., Doc. No. 1. Plaintiff has also filed a motion to 23 proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). DISCUSSION 24 25 26 27 I. Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of 28 1 17cv1794-MMA (KSC) 1 $400.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 3 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To proceed in 4 forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 5 1965). A party need not be completely destitute to proceed in forma pauperis. Adkins v. 6 E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). But, “the same even- 7 handed care must be employed to assure that federal funds are not squandered to 8 underwrite, at public expense, either frivolous claims or the remonstrances of a suitor 9 who is financially able, in whole or in material part, to pull his own oar.” Temple v. 10 Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 11 Plaintiff states that he receives $193.00 in food stamps. Doc. No. 2 at 2. Plaintiff 12 is unemployed and has been unemployed for at least one year. Id. at 5; see Compl. at ¶ 9- 13 21. Plaintiff’s total monthly expenses amount to $193.00, which he uses to purchase 14 food with his food stamps. Plaintiff’s affidavit sufficiently shows he is unable to pay the 15 fees or post securities required to maintain this action. As such, the Court GRANTS 16 Plaintiff’s motion to proceed in forma pauperis. 17 II. Screening Pursuant to 28 U.S.C. § 1915 18 Because Plaintiff is proceeding IFP, his Complaint requires a pre-Answer 19 screening pursuant to 28 U.S.C. § 1915(e)(2)(B). In accordance with that section, the 20 Court must sua sponte dismiss a Plaintiff’s IFP complaint, or any portion of it, which is 21 “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or 22 “seeks monetary relief against a defendant who is immune from such relief.” See 28 23 U.S.C. § 1915(e)(2)(B)(i)-(III); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 24 (“[T]he provisions of 28 U.S.C. § 1915(e)92)(B) are not limited to prisoners.”). The 25 26 1 27 28 In addition to the $350.00 statutory fee, civil litigants must pay an additional administrative fee of $50.00. See 28 U.S.C. § 1914(b) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016)). The additional $50.00 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 17cv1794-MMA (KSC) 1 court is not only allowed to, but is required to screen IFP complaints. See Lopez v. Smith, 2 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (noting § 1915(e) “not only permits but 3 requires” the court to sua sponte dismiss an IFP complaint that fails to state a claim). 4 “The standard for determining whether a plaintiff has failed to state a claim upon 5 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 6 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 7 F.3d 1108, 1112 (9th Cir. 2012). A pleading must contain “a short and plain statement of 8 the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Rule 9 8 can serve as an independent basis for dismissal of claims. McHenry v. Renne, 84 F.3d 10 1172, 1179 (9th Cir. 1996). Rule 8(d) requires that plaintiffs file “simple, concise, and 11 direct” pleadings. Id. Pleadings must “give the defendant fair notice of what the . . . 12 claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 13 544, 555 (2007) (quotation marks and citation omitted). A pleading lacking “simplicity, 14 conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform 15 the essential functions of a complaint.” McHenry, 84 F.3d at 1180. A plaintiff must 16 plead “enough facts to state a claim to relief that is plausible on its face.” Fed. R. Civ. P. 17 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard 18 demands more than a formulaic recitation of the elements of a cause of action, or naked 19 assertions devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 20 (2009). Instead, the complaint “must contain sufficient allegations of underlying facts to 21 give fair notice and to enable the opposing party to defend itself effectively.” Starr v. 22 Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 23 To state a claim under § 1983, a plaintiff must allege that a right secured by the 24 Constitution has been violated, and the deprivation was committed by a person acting 25 under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). States and state officers 26 sued in their official capacity are not “persons” for the purposes of a § 1983 action, and 27 generally, they may not be sued under the statute. Will v. Michigan Dep’t of State Police, 28 491 U.S. 58, 71 (1989). Section 1983 does allow suits against state officers in their 3 17cv1794-MMA (KSC) 1 individual capacities. Hafer v. Melo, 502 U.S. 21, 31 (1991). 2 In reviewing complaints, courts must assume the truth of all factual allegations and 3 must construe them in the light most favorable to the plaintiff. Cahill v. Liberty Mut. Ins. 4 Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The court need not take legal conclusions as 5 true merely because they are cast in the form of factual allegations. Roberts v. 6 Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Where dismissal is appropriate, a court 7 should grant leave to amend unless the plaintiff could not possibly cure the defects in the 8 pleading. Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009); Lopez v. 9 Smith, 203 F.3d 1122, 1127–29 (9th Cir. 2000). As currently pleaded, the Court finds allegations in Plaintiff’s complaint which are 10 11 sufficient to survive the sua sponte screening required by 28 U.S.C. § 1915(e)(2). 12 Accordingly, the Court will direct the U.S. Marshal to effect service on Plaintiff’s behalf. 13 See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and 14 perform all duties in [IFP] cases.”); Fed.R.Civ.P. 4(c)(3) (“[T]he court may order that 15 service be made by a United States marshal or deputy marshal . . . if the plaintiff is 16 authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 17 III. Conclusion and Order 18 Good cause appearing, IT IS HEREBY ORDERED that: 19 1. 20 Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2) is GRANTED. 21 IT IS FURTHER ORDERED that: 22 2. The Clerk is DIRECTED to issue a summons as to Plaintiff’s Complaint 23 (Doc. No. 1) upon Defendants and forward it to Plaintiff along with blank U.S. Marshal 24 Form 285s for each named Defendant. In addition, the Clerk is directed to provide 25 Plaintiff with a certified copy of this Order and a certified copy of his Complaint (Doc. 26 No. 1) and the summons so that he may serve each named Defendant. Upon receipt of 27 this “IFP Package,” Plaintiff is directed to complete the Form 285s as completely and 28 accurately as possible, and to return them to the United States Marshal according to the 4 17cv1794-MMA (KSC) 1 2 instructions provided by the Clerk in the letter accompanying his IFP package. 3. Upon receipt, the U.S. Marshal is ORDERED to serve a copy of the 3 Complaint and summons upon the named Defendants as directed by Plaintiff on the USM 4 Form 285s. All costs of service will be advanced by the United States. See 28 U.S.C. 5 § 1915(d); Fed.R.Civ.P. 4(c)(3). 6 4. Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint 7 within the time provided by the applicable provisions of Federal Rule of Civil Procedure 8 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to 9 “waive the right to reply to any action brought by a prisoner confined in any jail, prison, 10 or other correctional facility under section 1983,” once the Court has conducted its sua 11 sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made 12 a preliminary determination based on the face on the pleading alone that Plaintiff has a 13 “reasonable opportunity to prevail on the merits,” the defendant is required to respond). 14 5. Plaintiff must serve upon the Defendants or, if appearance has been entered 15 by counsel, upon Defendants’ counsel, a copy of every further pleading or other 16 document submitted for consideration by the Court. Plaintiff must include with the 17 original paper to be filed with the Clerk of the Court, a certificate stating the manner in 18 which a true and correct copy of the document was served on the Defendants, or counsel 19 for Defendants, and the date of that service. Any paper received by the Court which has 20 not been properly filed with the Clerk, or which fails to include a Certificate of Service, 21 may be disregarded. 22 IT IS SO ORDERED. 23 24 Dated: September 7, 2017 25 26 27 28 5 17cv1794-MMA (KSC)

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