McCullock v. Tharratt et al, No. 3:2016cv00457 - Document 6 (S.D. Cal. 2016)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis, denying 3 Motion to Appoint Counsel, and granting 5 Motion for Issuance of Sumons. US Marshal shall effect service of 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 paym ents to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR). Signed by Judge Larry Alan Burns on 5/18/16. (All non-registered users served via U.S. Mail Service)(IFP package prepared)(kas)
Download PDF
<![CDATA[
McCullock v. Tharratt et al Doc. 6 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ROBERT McCULLOCK, CDCR #V-32182, Case No.: 3:16-cv-0457-LAB-DHB 13 14 ORDER: Plaintiff, vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) [ECF No. 2]; 15 16 17 R. STEVEN THARRATT, et al., Defendants. 2) DENYING MOTION TO APPOINT COUNSEL [ECF No. 3]; 18 19 AND 20 2) GRANTING MOTION FOR ISSUANCE OF SUMMONS AND 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) [ECF No. 5] 21 22 23 24 25 26 ROBERT McCULLOCK (“Plaintiff”), currently incarcerated at Richard J. 27 Donovan Correctional Facility (“RJD”) and proceeding pro se, has filed a civil rights 28 action pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has also filed a Motion to 1 3:16-cv-0457-LAB-DHB Dockets.Justia.com 1 Proceed In Forma Pauperis (“IFP”) (ECF No. 2), a Motion to Appoint Counsel (ECF No. 2 3), and a Motion for Issuance of Summons (ECF No. 5). 3 I. 4 Plaintiff’s Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 8 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 9 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 10 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 11 Bruce v. Samuels, __ U. S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 12 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 13 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 14 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.” 28 U.S.C. 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 in 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 22 has 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 25 26 27 28 1 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. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:16-cv-0457-LAB-DHB 1 preceding month’s income, in any month in which his account exceeds $10, and forwards 2 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 3 Bruce, 136 S. Ct. at 629. 4 In support of his IFP motion, Plaintiff has submitted certified copies of his prison 5 trust account statements, and a prison certificate, verified by an accounting officer at 6 RJD, pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. See ECF No. 2 at 4, 7 6-7; Andrews, 398 F.3d at 1119. This financial information shows that Plaintiff has had 8 no monthly deposits, carried no balance in his trust account during the 6-month period 9 preceding the filing of this action, and had an available balance of zero at the time of 10 filing. Therefore, the Court assesses no initial partial filing fee pursuant to 28 U.S.C. 11 § 1915(b)(1) because it appears Plaintiff is unable to pay any initial fee. See 28 U.S.C. 12 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 13 civil action or appealing a civil action or criminal judgment for the reason that the 14 prisoner has no assets and no means by which to pay the initial partial filing fee.”); 15 Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) 16 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a 17 “failure to pay . . . due to the lack of funds available to him when payment is ordered.”). 18 Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), 19 declines to “exact” any initial filing fee because his prison certificate shows he “has no 20 means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California 21 Department of Corrections and Rehabilitation (“CDCR”), or his designee, to collect the 22 entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and to forward them 23 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 24 U.S.C. § 1915(b)(1). See id. 25 II. 26 Motion to Appoint Counsel Plaintiff has also filed a Motion for Appointment of Counsel (ECF No. 3). Plaintiff 27 claims he is indigent, imprisoned, and will require assistance investigating and 28 “elicit[ing] the facts from witnesses and experts.” See id. at 1-3. 3 3:16-cv-0457-LAB-DHB 1 There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of Social 2 Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district 3 courts have some limited discretion to “request” that an attorney represent an indigent 4 civil litigant. Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). 5 However, this discretion may be exercised only under “exceptional circumstances.” Id.; 6 see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional 7 circumstances requires “an evaluation of the likelihood of the plaintiff’s success on the 8 merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the 9 complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn 10 v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). The Court DENIES Plaintiff’s Motion (ECF No. 3) without prejudice because, as 11 12 discussed below, it appears Plaintiff is capable of articulating the factual basis for his 13 claims, and the likelihood of his success on the merits is not at all yet clear at this 14 preliminary stage of the proceedings. Id. Therefore, neither the interests of justice nor any 15 exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 16 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. 17 III. 18 Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A Notwithstanding Plaintiff’s IFP status or the payment of any filing fees, the PLRA 19 also requires the Court to review complaints filed by all persons proceeding IFP and by 20 those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, 21 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 22 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 23 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 24 statutes, the Court must sua sponte dismiss any complaint, or any portion of a complaint, 25 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 26 who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 27 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 28 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 4 3:16-cv-0457-LAB-DHB 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 15 the 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 21 “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of 22 the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 23 Plaintiff alleges various medical officials employed by both California 24 Correctional Health Care Services and RJD acted with deliberate indifference to his 25 serious medical needs by failing to notify him and take action after an outside specialist 26 recommended he undergo a skin cancer biopsy in early 2015 (ECF No. 1 at 10-15). As 27 currently pled, the Court finds Plaintiff’s Complaint contains Eighth Amendment claims 28 sufficient to survive the “low threshold” for proceeding past the sua sponte screening 5 3:16-cv-0457-LAB-DHB 1 required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman, 680 F.3d 2 1113, 1123 (9th Cir. 2012). Deliberate indifference to the serious medical needs of an 3 inmate constitutes “cruel and unusual punishment” under the Eighth Amendment. See 4 Estelle v. Gamble, 429 U.S. 97, 104-06 (1976). “To demonstrate deliberate indifference, 5 ‘plaintiffs must show that [prison officials] were (a) subjectively aware of the serious 6 medical need and (b) failed to adequately respond.’” Rosati v. Igbinoso, 791 F.3d 1037, 7 1039 (9th Cir. 2015) (quoting Conn v. City of Reno, 591 F.3d 1081, 1096 (9th Cir. 2010), 8 vacated, 563 U.S. 915 (2011), reinstated in relevant part, 658 F.3d 897 (9th Cir. 2011)). 9 Accordingly, the Court will GRANT Plaintiff’s Motion for Issuance of Summons 10 (ECF No. 5) and direct the U.S. Marshal to effect service upon the Defendants on 11 Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and 12 serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 4(c)(3) (“[T]he 13 court may order that service be made by a United States marshal or deputy marshal . . . if 14 the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 15 III. Conclusion and Orders 16 Good cause appearing, the Court: 17 1. 18 19 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 20 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 21 monthly payments from his account in an amount equal to twenty percent (20%) of the 22 preceding month’s income and forwarding those payments to the Clerk of the Court each 23 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 24 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 25 ASSIGNED TO THIS ACTION. 26 27 28 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. DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 3); 6 3:16-cv-0457-LAB-DHB 1 5. GRANTS Plaintiff’s Motion for Issuance of Summons (ECF No. 5) and 2 DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 1) upon 3 Defendants and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each 4 Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of this Order, 5 a certified copy of his Complaint (ECF No. 1), and the summons so that he may serve the 6 Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s 7 as completely and accurately as possible, and return them to the United States Marshal 8 according to the instructions the Clerk provides in the letter accompanying his IFP 9 package; 10 6. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 11 upon Defendants as directed by Plaintiff on the USM Form 285s provided to him. All 12 costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); FED. 13 R. CIV. P. 4(c)(3); 14 7. ORDERS Defendants to reply to Plaintiff’s Complaint within the time 15 provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42 16 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the 17 right to reply to any action brought by a prisoner confined in any jail, prison, or other 18 correctional facility under section 1983,” once the Court has conducted its sua sponte 19 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a 20 preliminary determination based on the face on the pleading alone that Plaintiff has a 21 “reasonable opportunity to prevail on the merits,” the defendant is required to respond); 22 and 23 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 24 serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’ 25 counsel, a copy of every further pleading, motion, or other document submitted for the 26 Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every 27 original document he seeks to file with the Clerk of the Court, a certificate stating the 28 manner in which a true and correct copy of that document has been was served on 7 3:16-cv-0457-LAB-DHB 1 Defendants or their counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. Any 2 document received by the Court which has not been properly filed with the Clerk or 3 which fails to include a Certificate of Service upon Defendants may be disregarded. 4 IT IS SO ORDERED. 5 6 7 8 Dated: May 18, 2016 HON. LARRY ALAN BURNS United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 3:16-cv-0457-LAB-DHB
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
