Castillo v. Renteria et al

Filing 7

ORDER: (1) Granting Motion to Proceed In Forma Pauperis [ECF No. 6 and (2) Directing United States Marshal Service to Effect Service of Complaint. Signed by Judge Cathy Ann Bencivengo on 1/17/2018. (All non-registered users served via U.S. Mail Service)(Scott Kernan served) (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LEANDRO LEONEL GONZALEZ
CASTILLO,
CDCR #V-74928,

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Case No.: 3:17-cv-2104-CAB-WVG
ORDER:

Plaintiff,

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1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 6]

vs.

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A. RENTERIA; L. ROMERO; R.
SEGOVIA,

AND
2) DIRECTING UNITED STATES
MARSHAL SERVICE TO EFFECT
SERVICE OF COMPLAINT

Defendants.

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Leandro Leonel Gonzalez Castillo (“Plaintiff”), proceeding pro se, is currently

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incarcerated at Mule Creek State Prison located in Ione, California, has filed a civil rights

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Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff did not prepay the civil

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filing fee required by 28 U.S.C. § 1914(a) at the time of filing, but instead has filed a

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Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No.

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6).

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3:17-cv-2104-CAB-WVG

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I.

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IFP Motion
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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$400.1 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). However,

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prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in

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“increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629

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(2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of

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whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v.

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Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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

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

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

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

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

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

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

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

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

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

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

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Bruce, 136 S. Ct. at 629.

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

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Report. See ECF No. 6 at 5-6; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews,

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398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement, but it shows

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that he has a current available balance of zero. See 28 U.S.C. § 1915(b)(4) (providing

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that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing

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a civil action or criminal judgment for the reason that the prisoner has no assets and no

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means by which to pay the initial partial filing fee.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 6) and

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assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350

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balance of the filing fees mandated will be collected by the California Department of

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Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court

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pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

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II.

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Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the

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PLRA also obligates the Court to review complaints filed by all persons proceeding IFP

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and by those, like Plaintiff, who are “incarcerated or detained in any facility [and]

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accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the

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terms or conditions of parole, probation, pretrial release, or diversionary program,” “as

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soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under

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these statutes, the Court must sua sponte dismiss complaints, or any portions thereof,

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which are frivolous, malicious, fail to state a claim, or which seek damages from

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defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v.

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Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v.

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Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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All complaints must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining

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whether a complaint states a plausible claim for relief [is] . . . a context-specific task that

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requires the reviewing court to draw on its judicial experience and common sense.” Id.

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The “mere possibility of misconduct” falls short of meeting this plausibility standard.

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Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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(“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to

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the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that §

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1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).
However, while the court “ha[s] an obligation where the petitioner is pro se,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not

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“supply essential elements of claims that were not initially pled.” Ivey v. Board of

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Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
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) and

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1915A(b). Accordingly, the Court will direct the U.S. Marshal to effect service on

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

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

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

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

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3:17-cv-2104-CAB-WVG

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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) (ECF No.

6) is GRANTED.
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The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s

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prison trust account the $350 filing fee owed in this case by collecting monthly payments

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from the account in an amount equal to twenty percent (20%) of the preceding month’s

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income and forward payments to the Clerk of the Court each time the amount in the

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account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

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SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED

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TO THIS ACTION.

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3.

The Clerk of the Court is directed to serve a copy of this Order on Scott

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Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box

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942883, Sacramento, California, 94283-0001.

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IT IS FURTHER ORDERED that:

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

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(ECF 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 provide Plaintiff

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with a certified copy of this Order and a certified copy of his Complaint (ECF No. 1) and

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the summons so that he may serve each named Defendant. Upon receipt of this “IFP

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Package,” Plaintiff is directed to complete the Form 285s as completely and accurately as

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possible, and to return them to the United States Marshal according to the instructions

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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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3:17-cv-2104-CAB-WVG

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6.

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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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.
Dated: January 17, 2018

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