Russell v. Lopez et al, No. 3:2015cv02280 - Document 7 (S.D. Cal. 2015)
Court Description: ORDER Granting 4 Plaintiff's Motion for Leave to Proceed in forma pauperis; and Directing U.S. Marshal to Effect Service of Summons and Complaint. The Secretary of the CDCR, or his designee, shall collect from Plaintiff's prison trust a ccount the $350 filing fee owed in this case by collecting monthly payments from the account in an amount equal to twenty percent (20%) of the preceding month's income and forward payments to the Clerk of the Court each time the amou nt in the account exceeds $10. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey A. Beard. The Clerk is DIRECTED to issue a summons as to Plaintiff's Complaint. The Clerk is directed provide Plaintiff with a cer tified copy of this Order and a certified copy of his Complaint (ECF No. 1) and the summons so that he may serve each named Defendant. The U.S. Marshal is ORDERED to serve a copy of the Complaint and summons upon the named Defendants.. Signed by Judge Cynthia Bashant on 12/29/15. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (J. Beard served; Certified copies and IFP package mailed to Plaintiff. dlg)
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Russell v. Lopez et al Doc. 7 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 Case No.: 15-cv-2280 11 12 Karl Russell G-41933, 13 14 15 ORDER: Plaintiff, (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) (ECF No. 4); AND v. Richard Lopez; Bill Strong, 16 Defendants. 17 (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) 18 19 20 21 22 Karl Russell (“Plaintiff”), currently incarcerated at Richard J. Donovan Correctional 23 Facility located in San Diego, California, and proceeding pro se, has filed a civil rights 24 complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). 25 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead, 26 he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 27 1915(a) (ECF No. 4). 1 15-cv-2280 Dockets.Justia.com 1 II. 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); Taylor v. Delatoore, 281 F.3d 11 844, 847 (9th Cir. 2002). 12 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), 13 a prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund 14 account statement (or institutional equivalent) for the prisoner for the six-month period 15 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 16 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 17 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 18 for the past six months, or (b) the average monthly balance in the account for the past six 19 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 20 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects 21 subsequent payments, assessed at 20% of the preceding month’s income, in any month in 22 which the prisoner’s account exceeds $10, and forwards those payments to the Court until 23 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 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 15-cv-2280 1 In support of his IFP Motion, Plaintiff has now submitted a certified copy of his trust 2 account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. Andrews, 3 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement, but it shows 4 that he has a current available balance of zero. See 28 U.S.C. § 1915(b)(4) (providing that 5 “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil 6 action or criminal judgment for the reason that the prisoner has no assets and no means by 7 which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 8 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 9 solely on a “failure to pay . . . due to the lack of funds available to him when payment is 10 ordered.”). 11 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 4) and 12 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 13 balance of the filing fees mandated will be collected by the California Department of 14 Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court pursuant 15 to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 16 III. 17 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the 18 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP 19 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 20 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 21 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 22 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 23 statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are 24 frivolous, malicious, fail to state a claim, or which seek damages from defendants who are 25 immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 F.3d 1122, 26 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 27 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A 3 15-cv-2280 1 All complaints must contain “a short and plain statement of the claim showing that 2 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 3 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 4 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 5 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether 6 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 7 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere 8 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 9 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 10 “When there are well-pleaded factual allegations, a court should assume their 11 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 12 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 13 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 14 allegations of material fact and must construe those facts in the light most favorable to the 15 plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 16 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 17 However, while the court “ha[s] an obligation where the petitioner is pro se, 18 particularly in civil rights cases, to construe the pleadings liberally and to afford the 19 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 20 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply 21 essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the 22 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 23 As currently pleaded, the Court finds allegations in Plaintiff’s Complaint which are 24 sufficient to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 25 1915A(b). Accordingly, the Court will direct the U.S. Marshal to effect service on 26 Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve 27 all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court 4 15-cv-2280 1 may order that service be made by a United States marshal or deputy marshal . . . if the 2 plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 3 III. Conclusion and Order 4 Good cause appearing, IT IS HEREBY ORDERED that: 5 1. 6 7 Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 4) is GRANTED. 2. The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s 8 prison trust account the $350 filing fee owed in this case by collecting monthly payments 9 from the account in an amount equal to twenty percent (20%) of the preceding month’s 10 income and forward payments to the Clerk of the Court each time the amount in the account 11 exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE 12 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 13 ACTION. 14 3. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey A. 15 Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 16 942883, Sacramento, California, 94283-0001. 17 IT IS FURTHER ORDERED that: 18 4. The Clerk is DIRECTED to issue a summons as to Plaintiff’s Complaint 19 (ECF No. 1) upon Defendants and forward it to Plaintiff along with blank U.S. Marshal 20 Form 285s for each named Defendant. In addition, the Clerk is directed provide Plaintiff 21 with a certified copy of this Order and a certified copy of his Complaint (ECF No. 1) and 22 the summons so that he may serve each named Defendant. Upon receipt of this “IFP 23 Package,” Plaintiff is directed to complete the Form 285s as completely and accurately as 24 possible, and to return them to the United States Marshal according to the instructions 25 provided by the Clerk in the letter accompanying his IFP package. 26 27 5. Upon receipt, the U.S. Marshal is ORDERED to serve a copy of the Complaint and summons upon the named Defendants as directed by Plaintiff on the USM 5 15-cv-2280 1 Form 285s. All costs of service will be advanced by the United States. See 28 U.S.C. § 2 1915(d); Fed. R. Civ. P. 4(c)(3). 3 6. Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint within 4 the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). 5 See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive 6 the right to reply to any action brought by a prisoner confined in any jail, prison, or other 7 correctional facility under section 1983,” once the Court has conducted its sua sponte 8 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a 9 preliminary determination based on the face on the pleading alone that Plaintiff has a 10 11 “reasonable opportunity to prevail on the merits,” the defendant is required to respond). 7. Plaintiff must serve upon the Defendants or, if appearance has been entered 12 by counsel, upon Defendants’ counsel, a copy of every further pleading or other document 13 submitted for consideration by the Court. Plaintiff must include with the original paper to 14 be filed with the Clerk of the Court, a certificate stating the manner in which a true and 15 correct copy of the document was served on the Defendants, or counsel for Defendants, 16 and the date of that service. Any paper received by the Court which has not been properly 17 filed with the Clerk, or which fails to include a Certificate of Service, may be disregarded. 18 19 20 21 Dated: December 29, 2015 Hon. Cynthia Bashant United States District Judge 22 23 24 25 26 27 6 15-cv-2280
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