Shields v. Kahn et al

Filing 5

ORDER 1) Granting 2 Motion to Proceed In Forma Pauperis Pursuant to 28 U.S.C. § 1915(a); 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). The Secretary of the CDCR, or his designee, is to collect from Plaintiff's trust account the $76.55 initial filing fee assessed, if those funds are available at the time this Order is executed, and to forward whatever balance remains of the full $35 0 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding month's income to the Clerk of the Court each time the amount in Plaintiff's account exceeds $10 pursuant to 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR) (Certified Copy to USM/CDCR)(IFP Packet Mailed). Signed by Judge Janis L. Sammartino on 3/14/2018. (All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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PATRICK SHIELDS,
CDCR #AY-3237,

Case No.: 3:17-CV-02597-JLS (MDD)

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ORDER:

Plaintiff,
vs.

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
PURSUANT TO 28 U.S.C. § 1915(a),
(ECF No. 2); 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)

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Chaplain KAHN; R. BROWN,
Community Resources Manager;
E. GARZA, Captain;
D. PARAMO, Warden,
Defendants.

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Plaintiff Patrick Shields, currently incarcerated at Richard J. Donovan Correctional

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Facility (“RJD”) in San Diego, California, and proceeding pro se, filed this civil rights

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action pursuant to 42 U.S.C. § 1983, on December 29, 2017. (See “Compl.,” ECF No. 1.)

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Plaintiff claims several prison officials at Richard J. Donovan Correctional Facility

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(“RJD”), in San Diego, California, violated his right to free exercise of religion and equal

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protection of the laws by failing to permit his participation in Ramadan in May 2017. (See

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id. at 2–4.) Plaintiff seeks declaratory and injunctive relief preventing other inmates, as

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opposed to the Muslim Chaplain, from facilitating, dictating, or controlling Islamic

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services at RJD, as well damages “to be determined.” (Id. at 3, 7.)
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Plaintiff did not prepay the filing fee required by 28 U.S.C. § 1914(a) to commence

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a civil action at the time he filed suit; instead, he has filed a Motion to Proceed In Forma

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Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2.)

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I.

Motion to Proceed IFP

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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 U.S.C.

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§ 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

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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 balance

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in the account for the past six months, whichever is greater, unless the prisoner has no

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

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

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

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

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136 S. Ct. at 629.

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

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Statement Report, (see ECF No. 3, at 2–4), together with a prison certificate completed by
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an accounting official at RJD attesting to his trust account activity. (Id. at 1); see also 28

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U.S.C. § 1915(a)(2); Civ. L.R. 3.2; Andrews, 398 F.3d at 1119. These statements show

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that Plaintiff had an average monthly balance of $382.78, and average monthly deposits of

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$177.91 to his account over the 6-month period immediately preceding the filing of his

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Complaint, as well as an available balance of $120.96 at the time of filing. Based on this

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financial information, the Court GRANTS Plaintiff’s Motion to Proceed IFP, (ECF No.

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2), and assesses his initial partial filing fee to be $76.55 pursuant to 28 U.S.C. § 1915(b)(1).

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However, the Court will direct the Secretary of the CDCR, or his designee, to collect

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

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

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prisoner be prohibited from bringing a civil action or appealing a civil action or criminal

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

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

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

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case 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) and 1915A(b)

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Notwithstanding Plaintiff’s IFP status or the payment of any filing fees, the PLRA

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also requires the Court to review complaints filed by all persons proceeding IFP and by

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

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

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

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

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statutes, the Court must sua sponte dismiss any complaint, or any portion of a complaint,

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

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are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 F.3d

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1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d
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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 whether

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

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the reviewing court to draw on its judicial experience and common sense.” Id. The “mere

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possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

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Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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“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 the

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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)”).

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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. Bd. of Regents

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

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As currently pleaded, the Court finds Plaintiff’s Complaint contains free exercise of

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religion and equal protection claims sufficient to survive the “low threshold” for

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proceeding past the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and

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1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012); Hartmann v. Cal.

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Dept. of Corr. and Rehab., 707 F.3d 1114, 1122–24 (9th Cir. 2013) (discussing pleading
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requirements for prisoner’s free exercise of religion and equal protection claims).

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

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

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

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(“[T]he court may order that service be made by a United States marshal or deputy marshal

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

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III.

Conclusion and Orders

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Good cause appearing, the Court:

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1.

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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a),

(ECF No. 2).
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ORDERS the Secretary of the CDCR, or his designee, to collect from

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Plaintiff’s trust account the $76.55 initial filing fee assessed, if those funds are available at

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the time this Order is executed, and to 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 CLEARLY

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IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 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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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 a 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 the Defendants.

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

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and accurately as possible, include an address where each named Defendant may be

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served, see Civ. L. R. 4.1.c, and return them to the United States Marshal according to the

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instructions the Clerk provides in the letter accompanying his IFP package.

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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 costs

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

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P. 4(c)(3).

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ORDERS Defendants, once served, to reply to Plaintiff’s Complaint within

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the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a).

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See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive

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the right to reply to any action brought by a prisoner confined in any jail, prison, or other

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correctional facility under section 1983,” once the Court has conducted its sua sponte

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screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a

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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,” defendant is 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 Defendants’ counsel, and the date of that service. See Civ. R. L. 5.2. Any

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

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

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IT IS SO ORDERED.
Dated: March 14, 2018

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