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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 PATRICK KELLY, CDCR #AM-6145, Case No.: 3:17-cv-1998-LAB-NLS ORDER: Plaintiff, 13 vs. 14 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2]; AND 15 16 17 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. 18 19 20 21 Patrick Kelly (“Plaintiff”) incarcerated at Calipatria State Prison (“CAL”) located 22 in Calipatria, California, is proceeding pro se in this case with a civil rights Complaint 23 filed pursuant to 42 U.S.C. § 1983 (ECF No. 1). 24 Plaintiff has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a); 25 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 26 U.S.C. § 1915(a) (ECF No. 2). 27 /// 28 /// 1 3:17-cv-1998-LAB-NLS 1 2 I. Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 9 Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 10 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 11 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified 13 copy of the trust fund account statement (or institutional equivalent) for ... the 6-month 14 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 15 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 16 statement, the Court assesses an initial payment of 20% of (a) the average monthly 17 deposits in the account for the past six months, or (b) the average monthly balance in the 18 account for the past six months, whichever is greater, unless the prisoner has no assets. 28 19 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the 20 prisoner then collects subsequent payments, assessed at 20% of the preceding month’s 21 income, in any month in which his account exceeds $10, and forwards those payments to 22 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 23 In support of his Motion to Proceed IFP, Plaintiff has submitted a copy of his 24 prison certificate completed by an accounting official at CAL attesting as to his trust 25 account activity. (ECF No. 2 at 4.); see 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; 26 Andrews, 398 F.3d at 1119. This certificate shows that Plaintiff had an average monthly 27 balance of $127.15, and average monthly deposits of $131.67 to his account over the 6- 28 month period immediately preceding the filing of his Complaint. (Id.) 2 3:17-cv-1998-LAB-NLS 1 Based on this financial information, the Court GRANTS Plaintiff’s Motion to 2 Proceed IFP (ECF No. 2), and assesses his initial partial filing fee to be $26.33 pursuant 3 to 28 U.S.C. § 1915(b)(1). However, the Court will direct the Secretary of the California 4 Department of Corrections and Rehabilitation (“CDCR”), or his designee, to collect this 5 initial fee only if sufficient funds are available in Plaintiff’s account at the time this Order 6 is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 7 prohibited from bringing a civil action or appealing a civil action or criminal judgment 8 for the reason that the prisoner has no assets and no means by which to pay the initial 9 partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 10 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner's IFP case 11 based solely on a “failure to pay ... due to the lack of funds available to him when 12 payment is ordered.”). The remaining balance of the $350 total fee owed in this case must 13 be collected and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(1). 14 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A 15 A. 16 Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre- Standard of Review 17 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 18 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 19 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 20 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 21 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 22 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 23 the targets of frivolous or malicious suits need not bear the expense of responding.’” 24 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 25 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 26 “The standard for determining whether a plaintiff has failed to state a claim upon 27 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 28 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 3 3:17-cv-1998-LAB-NLS 1 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 2 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 3 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 4 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 5 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 6 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 7 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 8 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 9 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 10 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 11 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 12 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 13 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 14 (9th Cir. 2009). 15 Here, the Court finds Plaintiff’s Complaint contains First Amendment claims, as 16 well as claims brought pursuant to the Religious Land Use and Institutionalized Persons 17 Act (“RLUIPA”), sufficient to survive the “low threshold” for proceeding past the sua 18 sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm 680 19 F.3d at 1123. 20 Accordingly, the Court will direct the U.S. Marshal to effect service upon 21 Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court 22 shall issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 23 4(c)(3) (“[T]he court may order that service be made by a United States marshal or 24 deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 25 U.S.C. § 1915.”). 26 /// 27 /// 28 /// 4 3:17-cv-1998-LAB-NLS 1 III. Conclusion and Order 2 For the reasons discussed, the Court: 3 1) GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 2). 4 2) ORDERS the Secretary of the CDCR, or his designee, to collect from 5 Plaintiff’s trust account the $26.33 initial filing fee assessed, if those funds are available 6 at the time this Order is executed, and forward whatever balance remains of the full $350 7 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding 8 month’s income to the Clerk of the Court each time the amount in Plaintiff’s account 9 exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE 10 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 11 ACTION. 12 13 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. 14 4) DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 15 No. 1) and forward it to Plaintiff along with blank U.S. Marshal Form 285 for each 16 Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of this Order, 17 a certified copy of his Complaint and the summons so that he may serve Defendants. 18 Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285 as completely 19 and accurately as possible, include an address where Defendants may be found and/or 20 subject to service pursuant to S.D. CAL. CIVLR 4.1c, and return it to the United States 21 Marshal according to the instructions the Clerk provides in the letter accompanying his 22 IFP package; 23 5) ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 24 upon Defendants as directed by Plaintiff on the USM Form 285 provided to him. All 25 costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); FED. 26 R. CIV. P. 4(c)(3); 27 /// 28 /// 5 3:17-cv-1998-LAB-NLS 1 6) ORDERS Defendants, once they have been served, to reply to Plaintiff’s 2 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 3 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be 4 permitted to “waive the right to reply to any action brought by a prisoner confined in any 5 jail, prison, or other correctional facility under section 1983,” once the Court has 6 conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), 7 and thus, has made a preliminary determination based on the face on the pleading alone 8 that Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is 9 required to respond); and 10 7) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 11 serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’ 12 counsel, a copy of every further pleading, motion, or other document submitted for the 13 Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every 14 original document he seeks to file with the Clerk of the Court, a certificate stating the 15 manner in which a true and correct copy of that document has been was served on 16 Defendants or their counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. Any 17 document received by the Court which has not been properly filed with the Clerk or 18 which fails to include a Certificate of Service upon the Defendants may be disregarded. 19 IT IS SO ORDERED. 20 21 22 23 Dated: October 13, 2017 HON. LARRY ALAN BURNS United States District Judge 24 25 26 27 28 6 3:17-cv-1998-LAB-NLS

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