Hoyt v. Kernan

Filing 11

ORDER granting 10 Motion for Leave to Proceed in forma pauperis. US Marshal shall effect service of complaint. (Order electronically transmitted to Secretary of CDCR). Signed by Judge Marilyn L. Huff on 5/16/2018. (jdt)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHNAE HOYT, Case No.: 3:18-cv-0716-H-BLM Plaintiff, 12 13 14 ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION SECRETARY SCOTT KERNAN, in his official capacity; et al., 15 16 17 [Doc. No. 10] Defendants. 18 19 20 On May 16, 2018, Plaintiff Johnae Hoyt (“Plaintiff”), a state inmate currently housed 21 at Salinas Valley State Prison (“SVSP”) 1 located in Soledad, California, and represented 22 by counsel, filed an amended complaint in this matter. (Doc. No. 9.) On May 16, 2018, 23 Plaintiff filed a motion for leave to proceed in forma pauperis (“IFP”). (Doc. No. 10.) 24 All parties instituting any civil action, suit or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay 27 28 1 See https://inmatelocator.cdcr.ca.gov/Results.aspx (website last visited Mar. 16, 2018) 1 3:18-cv-0716-H-BLM 1 the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). 2 However, if the plaintiff is a prisoner at the time of filing, he may be granted leave to 3 proceed IFP, but he nevertheless remains obligated to pay the entire fee in “increments,” 4 see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his 5 action is ultimately dismissed, see 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 6 F.3d 844, 847 (9th Cir. 2002). A “prisoner” is defined as “any person” who at the time of 7 filing is “incarcerated or detained in any facility who is accused of, convicted of, sentenced 8 for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of 9 parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h). 10 In order to comply with the Prison Litigation Reform Act (“PLRA”), prisoners 11 seeking leave to proceed IFP must also submit a “certified copy of the[ir] trust fund account 12 statement (or institutional equivalent) . . . for the 6-month period immediately preceding 13 the filing of the complaint . . . .” 28 U.S.C. § 1915(a)(2). From the certified trust account 14 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 15 in the account for the past six months, or (b) the average monthly balance in the account 16 for the past six months, whichever is greater, unless the prisoner has no assets. 28 U.S.C. 17 § 1915(b)(1), (4); see Taylor, 281 F.3d at 850. Thereafter, the institution having custody of 18 the prisoner collects subsequent payments, assessed at 20% of the preceding month’s 19 income, in any month in which the prisoner’s account exceeds $10, and forwards them to 20 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 21 Here, Plaintiff has submitted a certified copy of his trust account statement for the 22 six month period preceding the filing of the amended complaint, which shows that Plaintiff 23 has no assets. (Doc. No. 10.) Thus, for good cause shown, the Court GRANTS Plaintiff’s 24 motion for leave to proceed IFP. 25 The Court directs the Clerk to issue a summons as to Plaintiff’s amended complaint, 26 (Doc. No. 9), upon Defendants and forward it to Plaintiff along with a blank U.S. Marshal 27 Form 285. Additionally, the Court directs the Clerk to provide Plaintiff with a certified 28 copy of this Order and a certified copy of his amended complaint and the summons for 2 3:18-cv-0716-H-BLM 1 purposes of serving Defendants. Upon receipt of this “IFP Package,” the Court directs 2 Plaintiff to complete the Form 285 as completely and accurately as possible and to return 3 them to the United States Marshal according to the instructions provided by the Clerk in 4 the letter accompanying the IFP Package. 5 Thereafter, the Court orders the U.S. Marshal to serve a copy of the amended 6 complaint and summons upon Defendants as directed by Plaintiff on the Form 285. All 7 costs of service are to be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. 8 Civ. P. 4(c)(3). After proper service, the Court orders Defendants to respond to Plaintiff’s 9 amended complaint within the time provided by the applicable provisions of Federal Rule 10 11 12 13 14 of Civil Procedure 12. IT IS SO ORDERED. DATED: May 16, 2018 MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 3:18-cv-0716-H-BLM

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