Gallegos v. Seeley

Filing 3

ORDER (1) granting 2 Plaintiff's Motion to Proceed in forma pauperis pursuant to 28 USC 1915(a) and (2) Directing US Marshal to effect service of summons and complaint pursuant to 28 USC 1915(d) and Fed.R.Civ.P. 4(c)(3). The Court assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fees mandated will be collected by the California Department of Corrections and Rehabilitation (CDCR) and forwarded to the Clerk of the Co urt pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). (Order electronically transmitted to Secretary of CDCR). (Summons and IFP package prepared). Signed by Judge John A. Houston on 7/11/2018. (All non-registered users served via U.S. Mail Service)(jpp)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9
10
11
12

Case No.: 3:18-cv-01322-JAH-BGS
ALEJANDRO GALLEGOS
T-63165,

13
14
15
16

ORDER:
Plaintiff,

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

v.
K. SEELEY, M.D.,
Defendant.

17

AND

18

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)

19
20
21
22
23

Alejandro Gallegos (“Plaintiff”), currently incarcerated at California Institution for

24

Men located in Chino, California, and proceeding pro se, has filed a civil rights complaint

25

(“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff did not prepay the civil

26

filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a to Proceed In Forma

27

Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).
1
3:18-cv-01322-JAH-BGS
I:\Everyone\_EFILE-PROSE\JAH\18cv1322-grt & serve.docm

1

I.

Plaintiff’s Motion to Proceed IFP

2

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

3

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

4

$400. See 28 U.S.C. § 1914(a). 1 An action may proceed despite a plaintiff’s failure to

5

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

6

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

7

Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if a prisoner, like Plaintiff, is granted

8

leave to proceed IFP, he remains obligated to pay the entire fee in “increments,” see

9

Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action

10

is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2).

11

Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”),

12

a prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund

13

account statement (or institutional equivalent) for the prisoner for the six-month period

14

immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.

15

King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the

16

Court assesses an initial payment of 20% of (a) the average monthly deposits in the account

17

for the past six months, or (b) the average monthly balance in the account for the past six

18

months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1);

19

28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects

20

subsequent payments, assessed at 20% of the preceding month’s income, in any month in

21

which the prisoner’s account exceeds $10, and forwards those payments to the Court until

22

the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust

23
24
25
26
27

1

In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, 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) (eff. May 1, 2013). However, the additional $50 administrative fee
is waived if the plaintiff is granted leave to proceed IFP. Id.
2
3:18-cv-01322-JAH-BGS
I:\Everyone\_EFILE-PROSE\JAH\18cv1322-grt & serve.docm

1

account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. Andrews,

2

398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement, but it shows

3

that he has a current available balance of zero. See 28 U.S.C. § 1915(b)(4) (providing that

4

“[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil

5

action or criminal judgment for the reason that the prisoner has no assets and no means by

6

which to pay the initial partial filing fee.”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th

7

Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing

8

dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of

9

funds available to him when payment is ordered.”).

10

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

11

assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350

12

balance of the filing fees mandated will be collected by the California Department of

13

Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court pursuant

14

to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

15

II.

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

16

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

17

PLRA also obligates the Court to review complaints filed by all persons proceeding IFP

18

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

19

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

20

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

21

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

22

statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are

23

frivolous, malicious, fail to state a claim, or which seek damages from defendants who are

24

immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 F.3d 1122,

25

1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004

26

(9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

27

All complaints must contain “a short and plain statement of the claim showing that
3
3:18-cv-01322-JAH-BGS
I:\Everyone\_EFILE-PROSE\JAH\18cv1322-grt & serve.docm

1

the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not

2

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

3

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

4

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a

5

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

6

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

7

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

8

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

9

“When there are well-pleaded factual allegations, a court should assume their

10

veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

11

Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

12

(“[W]hen determining whether a complaint states a claim, a court must accept as true all

13

allegations of material fact and must construe those facts in the light most favorable to

14

the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that §

15

1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).

16

However, while the court “ha[s] an obligation where the petitioner is pro se,

17

particularly in civil rights cases, to construe the pleadings liberally and to afford the

18

petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

19

2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply

20

essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the

21

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

22

As currently pleaded, the Court finds allegations in Plaintiff’s Complaint which are

23

sufficient to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and

24

1915A(b). Accordingly, the Court will direct the U.S. Marshal to effect service on

25

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

26

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

27

order that service be made by a United States marshal or deputy marshal . . . if the plaintiff
4
3:18-cv-01322-JAH-BGS
I:\Everyone\_EFILE-PROSE\JAH\18cv1322-grt & serve.docm

1

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

2

III.

Conclusion and Order

3

Good cause appearing, IT IS HEREBY ORDERED that:

4

1.

5

Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No.

2) is GRANTED.
2.

6

The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s

7

prison trust account the $350 filing fee owed in this case by collecting monthly payments

8

from the account in an amount equal to twenty percent (20%) of the preceding month’s

9

income and forward payments to the Clerk of the Court each time the amount in the account

10

exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE

11

CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS

12

ACTION.
3.

13

The Clerk of the Court is directed to serve a copy of this Order on Scott

14

Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box

15

942883, Sacramento, California, 94283-0001.

16

IT IS FURTHER ORDERED that:

17

4.

The Clerk is DIRECTED to issue a summons as to Plaintiff’s Complaint

18

(ECF No. 1) upon Defendant and forward it to Plaintiff along with blank U.S. Marshal

19

Form 285s for each named Defendant. In addition, the Clerk is directed provide Plaintiff

20

with a certified copy of this Order and a certified copy of his Complaint (ECF No. 1) and

21

the summons so that he may serve each named Defendant. Upon receipt of this “IFP

22

Package,” Plaintiff is directed to complete the Form 285s as completely and accurately as

23

possible, and to return them to the United States Marshal according to the instructions

24

provided by the Clerk in the letter accompanying his IFP package.

25

///

26

///

27

///
5
3:18-cv-01322-JAH-BGS
I:\Everyone\_EFILE-PROSE\JAH\18cv1322-grt & serve.docm

1

5.

Upon receipt, the U.S. Marshal is ORDERED to serve a copy of the

2

Complaint and summons upon the named Defendant as directed by Plaintiff on the USM

3

Form 285s. All costs of service will be advanced by the United States. See 28 U.S.C.

4

§ 1915(d); Fed.R.Civ.P. 4(c)(3).

5

6.

Plaintiff must serve upon the Defendant or, if appearance has been entered by

6

counsel, upon Defendant’s counsel, a copy of every further pleading or other document

7

submitted for consideration by the Court. Plaintiff must include with the original paper to

8

be filed with the Clerk of the Court, a certificate stating the manner in which a true and

9

correct copy of the document was served on the Defendant, or counsel for Defendant, and

10

the date of that service. Any paper received by the Court which has not been properly filed

11

with the Clerk, or which fails to include a Certificate of Service, may be disregarded.

12
13

Dated: July 11, 2018
Hon. John A. Houston
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27

6
3:18-cv-01322-JAH-BGS
I:\Everyone\_EFILE-PROSE\JAH\18cv1322-grt & serve.docm