McCullock v. Brown et al

Filing 13

ORDER: The Court: Grants McCullock's Motion to Proceed IFP (ECF No. 5 ). Directs the Secretary CDCR, or his designee, is ordered to 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 payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b )(2). Directs the Clerk to issue a summons as to FAC and IFP package. Orders U.S. Marshal to effect service. Signed by Judge William Q. Hayes on 07/12/2018. (Order served to Secretary of CDCR electronically and via U.S. Mail Service) (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (ajs)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9
10
11

ROBERT McCULLOCK,
CDCR #V-32812,

Case No.: 3:18-cv-00548-WQH-JLB
ORDER

Plaintiff,

12
vs.

13
14
15
16

ROBERT BROWN; FABRICE
HADJADJ; J. DAVIES; P.
COVELLO,
Defendants.

17
18

HAYES, Judge:

19

Robert McCullock, proceeding pro se and incarcerated at Richard J. Donovan

20

Correctional Facility (“RJD”) in San Diego, California, has filed a civil rights Complaint

21

pursuant to 42 U.S.C. § 1983 (ECF No. 1). Before the Court could conduct the required

22

sua sponte screening, McCullock filed a First Amended Complaint (ECF No. 4) (the

23

“FAC”) which is now the operative pleading.

24

McCullock claims RJD officials violated his right to free exercise of his Buddhist

25

faith under the First Amendment, imposed a substantial burden on the exercise of that faith

26

in violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and

27

denied him equal protection of the law under the Fourteenth Amendment “from 2016

28

through 2018.” Id. at 22–34.
1
3:18-cv-00548-WQH-JLB

1

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

2

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

3

pursuant to 28 U.S.C. § 1915(a). See ECF No. 5.

4

I.

Motion to Proceed In Forma Pauperis

5

All parties instituting any civil action, suit, or proceeding in a district court of the

6

United States, except an application for writ of habeas corpus, must pay a filing fee of

7

$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

8

prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

9

§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

10

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

11

IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v.

12

Samuels, 136 S. Ct. 627, 629 (2016), regardless of whether his action is ultimately

13

dismissed, see 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th

14

Cir. 2002).

15

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

16

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

17

6-month period immediately preceding the filing of the complaint.”

18

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

19

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

20

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

21

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

22

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

23

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

24

preceding month’s income, in any month in which the prisoner’s account exceeds $10, and

28 U.S.C.

25
26
1

27
28

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.
2
3:18-cv-00548-WQH-JLB

1

forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C.

2

§ 1915(b)(2); Bruce, 136 S. Ct. at 629.

3

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

4

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

5

See ECF No. 6 at 1–3. These statements show that McCullock has carried no average

6

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

7

immediately preceding the filing of his Complaint, and had no available balance on the

8

books at the time of filing. See ECF No. 6 at 1. Based on this accounting, no initial partial

9

filing fee is assessed. See 28 U.S.C. § 1915(b)(4) (“In no event shall a prisoner be

10

prohibited from bringing a civil action or appealing a civil action or criminal judgment for

11

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

12

filing fee.”).

13

Therefore, the Court grants McCullock’s Motion to Proceed IFP (ECF No. 5),

14

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

15

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

16

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

17

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

18

II.

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

19

Because McCullock is a prisoner and is proceeding IFP, his pleading requires a pre-

20

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

21

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

22

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

23

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

24

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

25

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

26

targets of frivolous or malicious suits need not bear the expense of responding.’”

27

Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

28

Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
3
3:18-cv-00548-WQH-JLB

1

“The standard for determining whether a plaintiff has failed to state a claim upon

2

which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

3

Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

4

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

5

2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

6

applied in the context of failure to state a claim under Federal Rule of Civil Procedure

7

12(b)(6)”). Federal Rule of Civil Procedure (“Rule”) 12(b)(6) requires a complaint

8

“contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible

9

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

10

Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a

11

cause of action, supported by mere conclusory statements, do not suffice.”

12

“Determining whether a complaint states a plausible claim for relief [is] . . . a context-

13

specific task that requires the reviewing court to draw on its judicial experience and

14

common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-

15

unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.

Id.

16

The Court finds that the FAC contains “sufficient factual matter, accepted as true,”

17

to allege First Amendment free exercise, RLUIPA, and Fourteenth Amendment equal

18

protection claims for relief that are “plausible on [their] face,” and therefore, sufficient to

19

survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).2 Id;

20

see Walker v. Beard, 789 F.3d 1125, 1134, 1138 (9th Cir. 2015) (discussing pleading

21

standards for prisoner’s free exercise and equal protection claims under the First and

22

Fourteenth Amendments and RLUIPA).

23

Therefore, the Court will order the U.S. Marshal to effect service upon Defendants

24

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

25
26
27
28

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 [a defendant] may choose to bring.” Teahan
v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007).
2

4
3:18-cv-00548-WQH-JLB

1

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

2

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

3

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

4

III.

Conclusion and Orders

5

For the reasons discussed, the Court:

6

1)

GRANTS McCullock’s Motion to Proceed IFP (ECF No. 5);

7

2)

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

8

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

9

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

10

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

11

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

12

PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

13

ASSIGNED TO THIS ACTION;

14
15
16

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 the FAC and forward it to

17

McCullock along with a blank U.S. Marshal Form 285 for each named Defendant. In

18

addition, the Clerk shall provide McCullock with a certified copy of this Order, a certified

19

copy of the FAC, and the summons so that he may serve Defendants. Upon receipt of this

20

“IFP Package,” McCullock must complete each Form 285 as completely and accurately as

21

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

22

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

23

provides in the letter accompanying his IFP package;

24

5)

ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon

25

Defendants as directed by McCullock on the USM Form 285s provided to him. All costs

26

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

27

Civ. P. 4(c)(3);

28

6)

ORDERS Defendants, once served, to reply to the FAC within the time
5
3:18-cv-00548-WQH-JLB

1

provided by the applicable provisions of Rule 12(a). See 42 U.S.C. § 1997e(g)(2) (While

2

a defendant may occasionally be permitted to “waive the right to reply to any action

3

brought by a prisoner confined in any jail, prison, or other correctional facility under

4

section 1983,” once the Court has conducted its sua sponte screening pursuant to 28 U.S.C.

5

§ 1915(e)(2) and § 1915A(b), defendant is required to respond.); and

6

7)

ORDERS McCullock, after service has been effected by the U.S. Marshal, to

7

serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’

8

counsel, a copy of every further pleading, motion, or other document submitted for the

9

Court’s consideration pursuant to Rule 5(b). McCullock must include with every original

10

document the he seeks to file with the Clerk of the Court a certificate stating the manner in

11

which a true and correct copy of that document has been served on Defendants or their

12

counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. Any document received

13

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

14

Certificate of Service upon Defendants, may be disregarded.

15
16

IT IS SO ORDERED.
Dated: July 12, 2018

17
18
19
20
21
22
23
24
25
26
27
28
6
3:18-cv-00548-WQH-JLB