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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GARY R. CUSHINBERRY,

Case No.: 17cv1794-MMA (KSC)
Plaintiff,

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v.

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ORDER:

SERGEANT PATRICK VINSON, et al.,

(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
(Doc. No. 2)

Defendants.

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AND

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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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On September 5, 2017, Plaintiff Gary R. Cushinberry, a non-prisoner proceeding

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pro se, submitted a complaint against Sergean Patrick Vinson and the City of San Diego

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pursuant to 42 U.S.C. § 1983. Compl., Doc. No. 1. Plaintiff has also filed a motion to

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proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).
DISCUSSION

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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

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17cv1794-MMA (KSC)

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$400.1 See 28 U.S.C. § 1914(a). An 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 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). “To proceed in

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forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.

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1965). A party need not be completely destitute to proceed in forma pauperis. Adkins v.

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E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). But, “the same even-

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handed care must be employed to assure that federal funds are not squandered to

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underwrite, at public expense, either frivolous claims or the remonstrances of a suitor

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who is financially able, in whole or in material part, to pull his own oar.” Temple v.

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Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).

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Plaintiff states that he receives $193.00 in food stamps. Doc. No. 2 at 2. Plaintiff

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is unemployed and has been unemployed for at least one year. Id. at 5; see Compl. at ¶ 9-

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21. Plaintiff’s total monthly expenses amount to $193.00, which he uses to purchase

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food with his food stamps. Plaintiff’s affidavit sufficiently shows he is unable to pay the

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fees or post securities required to maintain this action. As such, the Court GRANTS

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Plaintiff’s motion to proceed in forma pauperis.

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II.

Screening Pursuant to 28 U.S.C. § 1915

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Because Plaintiff is proceeding IFP, his Complaint requires a pre-Answer

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screening pursuant to 28 U.S.C. § 1915(e)(2)(B). In accordance with that section, the

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Court must sua sponte dismiss a Plaintiff’s IFP complaint, or any portion of it, which is

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“frivolous or malicious,” “fails to state a claim on which relief may be granted,” or

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“seeks monetary relief against a defendant who is immune from such relief.” See 28

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U.S.C. § 1915(e)(2)(B)(i)-(III); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)

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(“[T]he provisions of 28 U.S.C. § 1915(e)92)(B) are not limited to prisoners.”). The

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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.
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court is not only allowed to, but is required to screen IFP complaints. See Lopez v. Smith,

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203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (noting § 1915(e) “not only permits but

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requires” the court to sua sponte dismiss an IFP complaint that fails to state a claim).

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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). A pleading must contain “a short and plain statement of

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the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Rule

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8 can serve as an independent basis for dismissal of claims. McHenry v. Renne, 84 F.3d

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1172, 1179 (9th Cir. 1996). Rule 8(d) requires that plaintiffs file “simple, concise, and

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direct” pleadings. Id. Pleadings must “give the defendant fair notice of what the . . .

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claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555 (2007) (quotation marks and citation omitted). A pleading lacking “simplicity,

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conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform

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the essential functions of a complaint.” McHenry, 84 F.3d at 1180. A plaintiff must

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plead “enough facts to state a claim to relief that is plausible on its face.” Fed. R. Civ. P.

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12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard

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demands more than a formulaic recitation of the elements of a cause of action, or naked

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assertions devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009). Instead, the complaint “must contain sufficient allegations of underlying facts to

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give fair notice and to enable the opposing party to defend itself effectively.” Starr v.

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Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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To state a claim under § 1983, a plaintiff must allege that a right secured by the

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Constitution has been violated, and the deprivation was committed by a person acting

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under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). States and state officers

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sued in their official capacity are not “persons” for the purposes of a § 1983 action, and

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generally, they may not be sued under the statute. Will v. Michigan Dep’t of State Police,

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491 U.S. 58, 71 (1989). Section 1983 does allow suits against state officers in their
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individual capacities. Hafer v. Melo, 502 U.S. 21, 31 (1991).

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In reviewing complaints, courts must assume the truth of all factual allegations and

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must construe them in the light most favorable to the plaintiff. Cahill v. Liberty Mut. Ins.

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Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The court need not take legal conclusions as

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true merely because they are cast in the form of factual allegations. Roberts v.

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Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Where dismissal is appropriate, a court

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should grant leave to amend unless the plaintiff could not possibly cure the defects in the

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pleading. Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009); Lopez v.

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Smith, 203 F.3d 1122, 1127–29 (9th Cir. 2000).
As currently pleaded, the Court finds allegations in Plaintiff’s complaint which are

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

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Accordingly, the Court will direct the U.S. Marshal to effect service on Plaintiff’s behalf.

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See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and

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perform all duties in [IFP] cases.”); Fed.R.Civ.P. 4(c)(3) (“[T]he court may order that

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service be made by a United States marshal or deputy marshal . . . if the plaintiff is

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authorized to proceed in forma 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) (Doc. No.

2) is GRANTED.

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IT IS FURTHER ORDERED that:

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2.

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

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(Doc. 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 to provide

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Plaintiff with a certified copy of this Order and a certified copy of his Complaint (Doc.

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No. 1) and the summons so that he may serve each named Defendant. Upon receipt of

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this “IFP Package,” Plaintiff is directed to complete the Form 285s as completely and

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accurately as possible, and to return them to the United States Marshal according to the
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instructions provided by the Clerk in the letter accompanying his IFP package.
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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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4.

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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5.

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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IT IS SO ORDERED.

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Dated: September 7, 2017

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