Hughey v. Kernan

Filing 4

ORDER: (1) Granting 2 Motion to Proceed In Forma Pauperis and (2) Directing U.S. Marshal to Effect Service Pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). The Secretary CDCR, or his designee, is ordered to collect from prison tr ust 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 payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). Signed by Judge William Q. Hayes on 05/21/2018. (Plaintiff served via U.S. Mail Service)(Secretary of CDCR served electronically and via U.S. Mail Service) (Certified Copy to USM) (ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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FREDDIE HUGHEY,
CDCR #E-95781,

Case No.: 3:18-cv-00313-WQH-BGS
ORDER

Plaintiff,

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vs.

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

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SCOTT KERNAN, Secretary,
AND

Defendant.

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

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HAYES, Judge:
Freddie Hughey (“Plaintiff”), proceeding pro se and incarcerated at Richard J.
Donovan Correctional Facility (“RJD”) in San Diego, California, has filed a civil rights
Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1).
Plaintiff claims that the Secretary of the California Department of Corrections and
Rehabilitation (“CDCR”) has violated his rights to due process and equal protection of the
laws by promulgating and enforcing provisions of Title 15 of the California Code of
Regulations to exclude him from eligibility for early parole consideration as a “non-violent
offender” as provided by California’s Public Safety and Rehabilitation Act of 2016. Id.
at 2–7.
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3:18-cv-00313-WQH-BGS

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Plaintiff did not prepay the $400 civil filing fee required by 28 U.S.C. § 1914(a) at

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the time of filing; instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).

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I.

Motion to Proceed In Forma Pauperis

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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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$400.1 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); Rodriguez v.

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

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IFP remains obligated to pay the entire fee in “installments,” Bruce v. Samuels, 136 S. Ct.

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627, 629 (2016), 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.”

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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 the prisoner’s 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).

28 U.S.C.

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In addition to the $350 statutory fee, civil litigants must pay an 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 copy of his CDCR Inmate

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Statement Report and a Prison Certificate completed by an accounting officer at RJD.

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(ECF No. 3 at 1–3). These statements show that Plaintiff has carried no average monthly

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balance, has had no monthly deposits to his account over the 6-month period immediately

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preceding the filing of his Complaint, and, consequently, had no available balance at the

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time of filing. (ECF No. 3 at 1, 3). Based on this accounting, no initial partial filing fee is

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assessed. 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 for

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

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filing fee”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-

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valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to

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pay . . . due to the lack of funds available to him when payment is ordered”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2),

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declines to exact any initial filing fee, and directs the Secretary of the CDCR, or his

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designee, to instead collect the entire $350 balance of the filing fees required by 28 U.S.C.

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§ 1914 and forward them to the Clerk of the Court pursuant to the installment payment

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provisions set forth in 28 U.S.C. § 1915(b)(1). See id.

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II.

Sua Sponte Screening Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b)

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

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

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

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

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

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28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

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

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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 F.3d

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

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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 “contain sufficient factual matter, accepted

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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (internal quotation marks omitted). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Determining whether a

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

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

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possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed-me

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accusation[s]” fall short of meeting this plausibility standard. Id.

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The Court finds that Plaintiff’s Complaint contains “sufficient factual matter,

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accepted as true,” to allege due process and equal protection claims that are “plausible on

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[their] face,” Iqbal, 556 U.S. at 678, and therefore sufficient to survive the “low threshold”

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for proceeding past the screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).2 See

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Wilhelm, 680 F.3d at 1123. Therefore, the Court will order the U.S. Marshal to effect

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service upon Defendant on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of

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the court shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R.

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

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marshal . . . if the plaintiff is authorized to proceed in forma pauperis . . .”).

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Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and
not a substitute for, any subsequent Rule 12(b)(6) motion that [the defendant] may choose to bring.”
Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007).
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3:18-cv-00313-WQH-BGS

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III.

Conclusion and Orders

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For the reasons discussed, the Court:

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1)

GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2);

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2)

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

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Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly

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payments from his account in an amount equal to twenty percent (20%) of the preceding

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month’s income and forwarding those payments to the Clerk of the Court each time the

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amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

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SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

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THIS ACTION;

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3)

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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 No.

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1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for the Defendant.

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

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copy of his Complaint, and the summons so that he may serve the Defendant. Upon receipt

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of this “IFP Package,” Plaintiff must complete the Form 285 as completely and accurately

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as possible, include an address where the Defendant may be served, see S.D. Cal. CivLR

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4.1.c, and return it to the United States Marshal according to the instructions the Clerk

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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 the Defendant 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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ORDERS the Defendant, 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 brougt 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), defendant is required to

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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 the Defendant, or, if appearance has been entered by counsel, upon Defendant’s

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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 served on the Defendant

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or his counsel and the date of that service. See S.D. Cal. CivLR 5.2. Any document

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

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include a Certificate of Service upon the Defendant, may be disregarded.

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Dated: May 21, 2018

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3:18-cv-00313-WQH-BGS