Williams v. Paramo et al

Filing 3

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. US Marshal shall effect service of complaint. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in th is 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 payments 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 Cathy Ann Bencivengo on 2/7/2018. (All non-registered users served via U.S. Mail Service)(jjg)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 KENNETH WILLIAMS, CDCR #J-17517, ORDER: Plaintiff, 13 14 Case No.: 3:17-cv-02475-CAB-NLS vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) [ECF No. 2] 15 16 17 18 19 D. PARAMO, Warden; R. BROWN, Community Resource Manager; E. GARZA, Captain; IMAM KAHN, Chaplain, 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) Defendants. 20 21 22 23 KENNETH WILLIAMS (“Plaintiff”), currently incarcerated at the California 24 Medical Facility (“CMF”) in Vacaville, California, and proceeding pro se, has filed this 25 civil rights action pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. 26 Plaintiff claims several prison officials at Richard J. Donovan Correctional Facility 27 (“RJD”), in San Diego, California, violated his right to free exercise of religion and equal 28 protection of the laws by failing to permit him to participate in Ramadan in May 2017, 1 3:17-cv-02475-CAB-NLS 1 while he was incarcerated at RJD. See id. at 2-4. Plaintiff seeks injunctive relief 2 preventing “prisoners” from facilitating Islamic services,1 as well as general and punitive 3 damages “to be determined.” Id. at 7. 4 Plaintiff did not prepay the filing fee required by 28 U.S.C. § 1914(a) to commence 5 a civil action at the time he filed suit; instead, he has filed a Motion to Proceed In Forma 6 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. 7 I. 8 Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 9 United States, except an application for writ of habeas corpus, must pay a filing fee of 10 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 11 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 12 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 13 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 14 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 15 Bruce v. Samuels, __ S. Ct. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 16 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately 17 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 18 Cir. 2002). 19 /// 20 21 22 23 24 25 26 27 28 1 While Plaintiff does not specify the scope of the injunctive relief he seeks, see ECF No. 1 at 7, any request for injunctive or other equitable relief related to RJD’s policies or practices have been rendered moot by his transfer to CMF. See Pride v. Correa, 719 F.3d 1130, 1138 (9th Cir. 2013) (“When an inmate challenges prison conditions at a particular correctional facility, but has been transferred from the facility and has no reasonable expectation of returning, his claim [for injunctive relief] is moot.”) (citing Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991)). In such circumstances, claims for injunctive relief are moot because the prisoner “‘no longer is subjected to [the allegedly unconstitutional] policies.’” Id. (quoting Johnson, 948 F.3d at 519); see also Dilley v. Gunn, 64 F.3d 1365, 1372 (9th Cir. 1995). 2 3:17-cv-02475-CAB-NLS 1 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 2 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 3 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 4 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 5 trust account statement, the Court assesses an initial payment of 20% of (a) the average 6 monthly deposits in the account for the past six months, or (b) the average monthly 7 balance in the account for the past six months, whichever is greater, unless the prisoner 8 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 9 custody of the prisoner then collects subsequent payments, assessed at 20% of the 10 preceding month’s income, in any month in which his account exceeds $10, and forwards 11 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 12 Bruce, 136 S. Ct. at 629. 13 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 14 Statement Report, see ECF No. 2 at 6-7, together with a prison certificate completed by 15 an accounting official at CMF attesting to his trust account activity. Id. at 5; see also 28 16 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These statements 17 show that Plaintiff had an average monthly balance of $9.02, and average monthly 18 deposits of $9.38 to his account over the 6-month period immediately preceding the filing 19 of his Complaint, but an available balance of zero at the time of filing. Based on this 20 financial information, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 21 2), and assesses his initial partial filing fee to be $1.87 pursuant to 28 U.S.C. 22 § 1915(b)(1). 23 However, the Court will direct the Secretary of the CDCR, or his designee, to 24 collect this initial fee only if sufficient funds are available in Plaintiff’s account at the 25 time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event 26 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or 27 criminal judgment for the reason that the prisoner has no assets and no means by which to 28 pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 3 3:17-cv-02475-CAB-NLS 1 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a 2 prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds available 3 to him when payment is ordered.”). The remaining balance of the $350 total fee owed in 4 this case must be collected and forwarded to the Clerk of the Court pursuant to 28 U.S.C. 5 § 1915(b)(1). 6 II. 7 Screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) Notwithstanding Plaintiff’s IFP status or the payment of any filing fees, the PLRA 8 also requires the Court to review complaints filed by all persons proceeding IFP and by 9 those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, 10 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 11 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 12 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 13 statutes, the Court must sua sponte dismiss any complaint, or any portion of a complaint, 14 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 15 who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 16 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 17 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 18 All complaints must contain “a short and plain statement of the claim showing that 19 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are 20 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 21 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 22 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether 23 a complaint states a plausible claim for relief [is] ... a context-specific task that requires 24 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere 25 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 26 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 27 28 “When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 4 3:17-cv-02475-CAB-NLS 1 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 2 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 3 allegations of material fact and must construe those facts in the light most favorable to 4 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 5 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 6 However, while the court “ha[s] an obligation where the petitioner is pro se, 7 particularly in civil rights cases, to construe the pleadings liberally and to afford the 8 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 9 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 10 “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of 11 the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). As currently pleaded, the Court finds Plaintiff’s Complaint contains free exercise 12 13 of religion and equal protection claims sufficient to survive the “low threshold” for 14 proceeding past the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 15 1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012); Hartmann v. 16 Cal. Dept. of Corr. and Rehab., 707 F.3d 1114, 1122-24 (9th Cir. 2013) (discussing 17 pleading requirements for prisoner’s free exercise of religion and equal protection 18 claims). 19 Accordingly, the Court will direct the U.S. Marshal to effect service upon the 20 Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall 21 issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 22 4(c)(3) (“[T]he court may order that service be made by a United States marshal or 23 deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 24 U.S.C. § 1915.”). 25 III. Conclusion and Orders 26 Good cause appearing, the Court: 27 1. 28 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 5 3:17-cv-02475-CAB-NLS 1 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 2 Plaintiff’s trust account the $1.87 initial filing fee assessed, if those funds are available at 3 the time this Order is executed, and to forward whatever balance remains of the full $350 4 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding 5 month’s income to the Clerk of the Court each time the amount in Plaintiff’s account 6 exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE 7 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 8 ACTION. 9 10 11 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. 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 12 No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each 13 Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of this Order, 14 a certified copy of his Complaint, and the summons so that he may serve the Defendants. 15 Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s as completely 16 and accurately as possible, include an address where each named Defendant may be 17 served, see S.D. Cal. CivLR 4.1.c, and return them to the United States Marshal 18 according to the instructions the Clerk provides in the letter accompanying his IFP 19 package; 20 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 21 upon Defendants as directed by Plaintiff on the USM Form 285 provided to him. All 22 costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. 23 R. Civ. P. 4(c)(3); 24 6. ORDERS Defendants, once served, to reply to Plaintiff’s Complaint within 25 the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). 26 See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive 27 the right to reply to any action brought by a prisoner confined in any jail, prison, or other 28 correctional facility under section 1983,” once the Court has conducted its sua sponte 6 3:17-cv-02475-CAB-NLS 1 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a 2 preliminary determination based on the face on the pleading alone that Plaintiff has a 3 “reasonable opportunity to prevail on the merits,” defendant is required to respond); and 4 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 5 serve upon Defendants or, if appearance has been entered by counsel, upon Defendants’ 6 counsel, a copy of every further pleading, motion, or other document submitted for the 7 Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 8 original document he seeks to file with the Clerk of the Court, a certificate stating the 9 manner in which a true and correct copy of that document has been was served on 10 Defendants or Defendants’ counsel, and the date of that service. See S.D. Cal. CivLR 5.2. 11 Any document received by the Court which has not been properly filed with the Clerk, or 12 which fails to include a Certificate of Service upon the Defendants, may be disregarded. 13 14 IT IS SO ORDERED. Dated: February 7, 2018 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 3:17-cv-02475-CAB-NLS

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