Vega v. California Department of Corrections and Rehabilitation et al, No. 3:2013cv00556 - Document 13 (S.D. Cal. 2013)
Court Description: ORDER Granting 8 Motion for Leave to Proceed in forma pauperis; and Directing US Marshal to effect service of Second Amended Complaint. 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 acc ount exceeds $10 in accordance with 28 USC 1915(b)(2). Signed by Judge Michael M. Anello on 9/9/2013. (Pro Per Package Prepared)(Order electronically transmitted to Secretary of CDCR - Jeffrey Beard) (All non-registered users served via U.S. Mail Service)(leh)
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Vega v. California Department of Corrections and Rehabilitation et al Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 DAVID VEGA, CDCR #v-25287, Plaintiff, 13 (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE AND GARNISHING BALANCE FROM PRISONER’S TRUST ACCOUNT PURSUANT TO 28 U.S.C. § 1915(a) 14 15 16 vs. 17 18 19 20 21 CALIFORNIA DEP’T OF CORRECTIONS AND REHABILITATION; S. KO; VON LINTIG; MICHAEL FRAZE; TOVARES; GOMES, R.N.; JOHN AND JANE DOES, 22 23 Civil 13cv0556 MMA (RBB) No. ORDER: Defendants. 24 [Doc. No. 8] AND (2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF SECOND AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d) 25 26 David Edward Vega (“Plaintiff”), a prisoner currently incarcerated at California 27 Men’s Colony located in San Luis Obispo, California, proceeding pro se, has filed a civil 28 rights Complaint pursuant to 42 U.S.C. § 1983. 1 13cv0556 MMA (RBB) Dockets.Justia.com 1 Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); 2 instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 3 § 1915(a) (Doc. No. 5). 4 screening, the Court permitted Plaintiff to file a First Amended Complaint, as well as a 5 Second Amended Complaint which is the operative pleading. 6 I. Before the Court could conduct the required sua sponte MOTION TO PROCEED IFP 7 All parties instituting any civil action, suit or proceeding in a district court of the 8 United States, except an application for writ of habeas corpus, must pay a filing fee of 9 $350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 10 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 11 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a 12 prisoner granted leave to proceed IFP remains obligated to pay the entire fee in 13 installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 14 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 15 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 16 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of the 17 trust fund account statement (or institutional equivalent) for the prisoner for the six-month 18 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 19 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 20 statement, the Court must assess an initial payment of 20% of (a) the average monthly 21 deposits in the account for the past six months, or (b) the average monthly balance in the 22 account for the past six months, whichever is greater, unless the prisoner has no assets. 23 See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the 24 prisoner must collect subsequent payments, assessed at 20% of the preceding month’s 25 income, in any month in which the prisoner’s account exceeds $10, and forward those 26 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 27 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 28 account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Andrews, 2 13cv0556 MMA (RBB) 1 398 F.3d at 1119. Plaintiff’s trust account statement shows a current available balance of 2 zero. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 3 prohibited from bringing a civil action or appealing a civil action or criminal judgment for 4 the reason that the prisoner has no assets and no means by which to pay [an] initial partial 5 filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety- 6 valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay 7 ... due to the lack of funds available.”). 8 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 5), and 9 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 10 balance of the filing fees mandated shall be collected and forwarded to the Clerk of the 11 Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 12 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 13 The PLRA also obligates the Court to review complaints filed by all persons 14 proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained in any 15 facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of 16 criminal law or the terms or conditions of parole, probation, pretrial release, or 17 diversionary program,” “as soon as practicable after docketing.” See 28 U.S.C. §§ 18 1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court must sua sponte 19 dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state 20 a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 21 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en 22 banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 23 (discussing 28 U.S.C. § 1915A(b)). 24 “[W]hen determining whether a complaint states a claim, a court must accept as true 25 all allegations of material fact and must construe those facts in the light most favorable to 26 the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Barren v. 27 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) “parallels the 28 language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, courts “have an 3 13cv0556 MMA (RBB) 1 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the 2 pleadings liberally and to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 3 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 4 (9th Cir. 1985)). The court may not, however, “supply essential elements of claims that 5 were not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 6 266, 268 (9th Cir. 1982). “Vague and conclusory allegations of official participation in 7 civil rights violations are not sufficient to withstand a motion to dismiss.” 8 As currently pleaded, the Court finds Plaintiff’s allegations sufficient to survive the 9 sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).1 See Lopez, 203 10 F.3d at 1126-27. Accordingly, the Court finds Plaintiff is entitled to U.S. Marshal service 11 on his behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve 12 all process, and perform all duties in [IFP] cases.”); FED.R.CIV.P. 4(c)(3) (“[T]he court 13 may order that service be made by a United States marshal or deputy marshal ... if the 14 plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 15 III. CONCLUSION AND ORDER 16 Good cause appearing, 17 1. 18 19 The Court GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). 2. The Secretary of the California Department of Corrections and Rehabilitation, 20 or his designee, shall collect from Plaintiff’s prison trust account the $350 filing fee owed 21 in this case by collecting monthly payments from the account in an amount equal to 22 twenty percent (20%) of the preceding month’s income and forward payments to the Clerk 23 of the Court each time the amount in the account exceeds $10 in accordance with 28 24 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE 25 NAME AND NUMBER ASSIGNED TO THIS ACTION. 26 27 1 28 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12[] motion that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 4 13cv0556 MMA (RBB) 1 3. The Court DIRECTS the Clerk of the Court to serve a copy of this Order on 2 Jeffrey A. Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. 3 Box 942883, Sacramento, California, 94283-0001. 4 IT IS FURTHER ORDERED that: 5 4. The Clerk shall issue a summons as to Plaintiff’s Second Amended 6 Complaint (Doc. No. 10) upon Defendants and shall and forward it to Plaintiff along with 7 a blank U.S. Marshal Form 285 for each Defendant. In addition, the Clerk shall provide 8 Plaintiff with a certified copy of this Order, a certified copy of his Second Amended 9 Complaint (Doc. No. 10), and the summons so that he may serve each named Defendant. 10 Upon receipt of this “IFP Package,” Plaintiff is directed to complete the Form 285s as 11 completely and accurately as possible, and to return them to the United States Marshal 12 according to the instructions provided by the Clerk in the letter accompanying his IFP 13 package. Upon receipt, the U.S. Marshal shall serve a copy of the Second Amended 14 Complaint and summons upon each Defendant as directed by Plaintiff on the USM Form 15 285s. All costs of service shall be advanced by the United States. See 28 U.S.C. 16 § 1915(d); FED.R.CIV.P. 4(c)(3). 17 5. Defendants are thereafter ORDERED to reply to Plaintiff’s Second 18 Amended Complaint within the time provided by the applicable provisions of Federal 19 Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may 20 occasionally be permitted to “waive the right to reply to any action brought by a prisoner 21 confined in any jail, prison, or other correctional facility under section 1983,” once the 22 Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and 23 § 1915A(b), and thus, has made a preliminary determination based on the face on the 24 pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,” the 25 defendant is required to respond). 26 6. Plaintiff shall serve upon the Defendants or, if appearance has been entered 27 by counsel, upon Defendants’ counsel, a copy of every further pleading or other document 28 submitted for consideration of the Court. Plaintiff shall include with the original paper to 5 13cv0556 MMA (RBB) 1 be filed with the Clerk of the Court a certificate stating the manner in which a true and 2 correct copy of any document was served on Defendants, or counsel for Defendants, and 3 the date of service. Any paper received by the Court which has not been filed with the 4 Clerk or which fails to include a Certificate of Service will be disregarded. 5 IT IS SO ORDERED. 6 DATED: September 9, 2013 7 8 Hon. Michael M. Anello United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 13cv0556 MMA (RBB)
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