Kelly v. Warden et al

Filing 3

ORDER: 1) Granting Motion to Proceed In Forma Pauperis [ECF No. 2 ]; and 2) Directing U.S. Marshal to Effect Service Upon Defendants Pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). The Secretary CDCR, or his designee, is ordered t o collect from prison trust account the $350 balance of the filing fee owed in this 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 payme nts 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). Signed by Judge Larry Alan Burns on 10/13/2017. (All non-registered users served via U.S. Mail Service)(Copy sent to Secretary of CDCR) (Certified Copy to USM) (lrf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PATRICK KELLY,
CDCR #AM-6145,

Case No.: 3:17-cv-1998-LAB-NLS
ORDER:

Plaintiff,

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vs.

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1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2]; AND

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W.L. MONTGOMERY; B. HEDRICK;
R, BUCKEL; S. KERNAN; M. VOONG;
K.J. ALLEN

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

Defendants.

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Patrick Kelly (“Plaintiff”) incarcerated at Calipatria State Prison (“CAL”) located

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in Calipatria, California, is proceeding pro se in this case with a civil rights Complaint

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

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Plaintiff has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a);

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instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28

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U.S.C. § 1915(a) (ECF No. 2).

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3:17-cv-1998-LAB-NLS

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I.

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

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

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$400. See 28 U.S.C. § 1914(a). The 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 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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

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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

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Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185

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

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

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

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copy of the trust fund account statement (or institutional equivalent) for ... the 6-month

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period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);

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Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account

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

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

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account for the past six months, whichever is greater, unless the prisoner has no assets. 28

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U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the

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prisoner then collects subsequent payments, assessed at 20% of the preceding month’s

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income, in any month in which his account exceeds $10, and forwards those payments to

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

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In support of his Motion to Proceed IFP, Plaintiff has submitted a copy of his

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prison certificate completed by an accounting official at CAL attesting as to his trust

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account activity. (ECF No. 2 at 4.); see 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2;

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Andrews, 398 F.3d at 1119. This certificate shows that Plaintiff had an average monthly

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balance of $127.15, and average monthly deposits of $131.67 to his account over the 6-

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month period immediately preceding the filing of his Complaint. (Id.)
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3:17-cv-1998-LAB-NLS

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Based on this financial information, the Court GRANTS Plaintiff’s Motion to

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Proceed IFP (ECF No. 2), and assesses his initial partial filing fee to be $26.33 pursuant

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to 28 U.S.C. § 1915(b)(1). However, the Court will direct the Secretary of the California

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

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initial fee only if sufficient funds are available in Plaintiff’s account at the time this Order

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is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be

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prohibited from bringing a civil action or appealing a civil action or criminal judgment

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for the reason that the prisoner has no assets and no means by which to pay the initial

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partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28

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U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner's IFP case

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based solely on a “failure to pay ... due to the lack of funds available to him when

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payment is ordered.”). The remaining balance of the $350 total fee owed in this case must

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be collected and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(1).

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II.

Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A

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A.

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Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre-

Standard of Review

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

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

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

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

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

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

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

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

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

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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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3:17-cv-1998-LAB-NLS

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

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

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

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

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

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

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

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

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

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

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

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

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

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(9th Cir. 2009).

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Here, the Court finds Plaintiff’s Complaint contains First Amendment claims, as

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well as claims brought pursuant to the Religious Land Use and Institutionalized Persons

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Act (“RLUIPA”), sufficient to survive the “low threshold” for proceeding past the sua

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sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm 680

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F.3d at 1123.

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Accordingly, the Court will direct the U.S. Marshal to effect service upon

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

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shall issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P.

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4(c)(3) (“[T]he court may order that service be made by a United States marshal or

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deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28

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U.S.C. § 1915.”).

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3:17-cv-1998-LAB-NLS

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III.

Conclusion and Order

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For the reasons discussed, the Court:

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1)

GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 2).

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2)

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

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Plaintiff’s trust account the $26.33 initial filing fee assessed, if those funds are available

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at the time this Order is executed, and forward whatever balance remains of the full $350

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owed in monthly payments in an amount equal to twenty percent (20%) of the preceding

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month’s income to the Clerk of the Court each time the amount in Plaintiff’s account

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exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE

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CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS

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ACTION.

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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.

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4)

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

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

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

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

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

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and accurately as possible, include an address where Defendants may be found and/or

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subject to service pursuant to S.D. CAL. CIVLR 4.1c, and return it to the United States

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

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IFP package;

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5)

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

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

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

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

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3:17-cv-1998-LAB-NLS

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6)

ORDERS Defendants, once they have been served, to reply to Plaintiff’s

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

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

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permitted to “waive the right to reply to any action brought by a prisoner confined in any

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jail, prison, or other correctional facility under section 1983,” once the Court has

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conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b),

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and thus, has made a preliminary determination based on the face on the pleading alone

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that Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is

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required to respond); and

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

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

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

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

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

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

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Defendants or their counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. Any

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document received by the Court which has not been properly filed with the Clerk or

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which fails to include a Certificate of Service upon the Defendants may be disregarded.

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IT IS SO ORDERED.

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Dated: October 13, 2017
HON. LARRY ALAN BURNS
United States District Judge

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3:17-cv-1998-LAB-NLS