Mitchell v. Carpio, No. 3:2016cv02814 - Document 4 (S.D. Cal. 2016)
Court Description: ORDER Granting 3 Plaintiff's Motion for Leave to Proceed In Forma Pauperis And Directing US Marshal to Effect Service of Summons And Complaint. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $35 0 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 account exceeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR). Signed by Judge William Q. Hayes on 12/1/2016. (All non-registered users served via U.S. Mail Service)(dxj)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Case No.: 3:16-cv-02814-WQH-NLS DESHAWN MITCHELL K-70241, 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. 3) v. LIEUTENANT M. CARPIO, Defendants. 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 Deshawn Mitchell (“Plaintiff”), currently incarcerated at California Correctional 24 Institution located in Tehachapi, California, and proceeding pro se, has filed a civil rights 25 complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). 26 27 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 1 3:16-cv-02814-WQH-NLS 1 U.S.C. § 1915(a) (ECF No. 3). 2 I. 3 Plaintiff’s Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 4 United States, except an application for writ of habeas corpus, must pay a filing fee of 5 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 6 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 7 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 8 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if a prisoner, like Plaintiff, is 9 granted leave to proceed IFP, he remains obligated to pay the entire fee in “increments,” 10 see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his 11 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 12 281 F.3d 844, 847 (9th Cir. 2002). 13 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 14 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of the 15 trust fund account statement (or institutional equivalent) for the prisoner for the six- 16 month period immediately preceding the filing of the complaint.” 28 U.S.C. 17 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 18 trust account statement, the Court assesses an initial payment of 20% of (a) the average 19 monthly deposits in the account for the past six months, or (b) the average monthly 20 balance in the account for the past six months, whichever is greater, unless the prisoner 21 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 22 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 23 preceding month’s income, in any month in which the prisoner’s account exceeds $10, 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 3:16-cv-02814-WQH-NLS 1 and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 2 § 1915(b)(2). 3 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 4 account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. Andrews, 5 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement, but it 6 shows that he has a current available balance of zero. See 28 U.S.C. § 1915(b)(4) 7 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action 8 or appealing a civil action or criminal judgment for the reason that the prisoner has no 9 assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 10 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of 11 a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 12 available to him when payment is ordered.”). 13 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 3) and 14 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 15 balance of the filing fees mandated will be collected by the California Department of 16 Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court 17 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 18 II. 19 Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the 20 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP 21 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] 22 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 23 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as 24 soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A. Under 25 these statutes, the Court must sua sponte dismiss complaints, or any portions thereof, 26 which are frivolous, malicious, fail to state a claim, or which seek damages from 27 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. 3 3:16-cv-02814-WQH-NLS 1 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing § 1915(e)(2)); 2 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 3 1915A(b)). 4 All complaints must contain “a short and plain statement of the claim showing that 5 the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are 6 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 7 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 8 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 9 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 10 requires the reviewing court to draw on its judicial experience and common sense.” Id. at 11 679. The “mere possibility of misconduct” falls short of meeting this plausibility 12 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 13 “When there are well-pleaded factual allegations, a court should assume their 14 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 15 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 16 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 17 allegations of material fact and must construe those facts in the light most favorable to 18 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 19 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 20 However, while the court “ha[s] an obligation where the petitioner is pro se, 21 particularly in civil rights cases, to construe the pleadings liberally and to afford the 22 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 23 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 24 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 25 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Plaintiff’s Factual Allegations 26 A. 27 Plaintiff was previously housed at Calipatria State Prison (“CAL”) from April 13, 4 3:16-cv-02814-WQH-NLS 1 2015 to June 28, 2016. (Compl. at 2.) During this time frame, Plaintiff claims he 2 repeatedly applied for job assignments within the prison. (Id. at 1- 9.) However, each 3 time he was denied the job assignment by Lieutenant Carpio with the explanation that 4 Plaintiff’s “work group/privilege group” prohibited these work assignments. (Id.) 5 Plaintiff, an African American, claims that Mexican American inmates with these same 6 work group/privilege group status were given these job assignments instead. (Id. at 5.) 7 Plaintiff claims that he informed Defendant Carpio that he was discriminating against all 8 African American inmates. (Id. at 7.) 9 As currently pleaded, the Court finds the Fourteenth Amendment equal protection 10 allegations in Plaintiff’s Complaint are sufficient to survive the sua sponte screening 11 required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Accordingly, the Court will direct 12 the U.S. Marshal to effect service on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The 13 officers of the court shall issue and serve all process, and perform all duties in [IFP] 14 cases.”); Fed.R.Civ.P. 4(c)(3) (“[T]he court may order that service be made by a United 15 States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in forma 16 pauperis under 28 U.S.C. § 1915.”). 17 III. Conclusion and Order 18 Good cause appearing, IT IS HEREBY ORDERED that: 19 1. 20 21 Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 3) is GRANTED. 2. The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s 22 prison trust account the $350 filing fee owed in this case by collecting monthly payments 23 from the account in an amount equal to twenty percent (20%) of the preceding month’s 24 income and forward payments to the Clerk of the Court each time the amount in the 25 account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 26 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 27 TO THIS ACTION. 5 3:16-cv-02814-WQH-NLS 1 2 3. The Clerk of the Court is directed to serve a copy of this Order on Scott 3 Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 4 942883, Sacramento, California, 94283-0001. 5 IT IS FURTHER ORDERED that: 6 4. The Clerk is DIRECTED to issue a summons as to Plaintiff’s Complaint 7 (ECF No. 1) upon Defendants and forward it to Plaintiff along with blank U.S. Marshal 8 Form 285s for each named Defendant. In addition, the Clerk is directed to provide 9 Plaintiff with a certified copy of this Order and a certified copy of his Complaint (ECF 10 No. 1) and the summons so that he may serve each named Defendant. Upon receipt of 11 this “IFP Package,” Plaintiff is directed to complete the Form 285s as completely and 12 accurately as possible, and to return them to the United States Marshal according to the 13 instructions provided by the Clerk in the letter accompanying his IFP package. 14 5. Upon receipt, the U.S. Marshal is ORDERED to serve a copy of the 15 Complaint and summons upon the named Defendants as directed by Plaintiff on the USM 16 Form 285s. All costs of service will be advanced by the United States. See 28 U.S.C. 17 § 1915(d); Fed.R.Civ.P. 4(c)(3). 18 6. Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint 19 within the time provided by the applicable provisions of Federal Rule of Civil Procedure 20 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to 21 “waive the right to reply to any action brought by a prisoner confined in any jail, prison, 22 or other correctional facility under section 1983,” once the Court has conducted its sua 23 sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made 24 a preliminary determination based on the face on the pleading alone that Plaintiff has a 25 “reasonable opportunity to prevail on the merits,” the defendant is required to respond). 26 27 7. Plaintiff must serve upon the Defendants or, if appearance has been entered by counsel, upon Defendants’ counsel, a copy of every further pleading or other 6 3:16-cv-02814-WQH-NLS 1 document submitted for consideration by the Court. Plaintiff must include with the 2 original paper to be filed with the Clerk of the Court, a certificate stating the manner in 3 which a true and correct copy of the document was served on the Defendants, or counsel 4 for Defendants, and the date of that service. Any paper received by the Court which has 5 not been properly filed with the Clerk, or which fails to include a Certificate of Service, 6 may be disregarded. 7 Dated: December 1, 2016 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 7 3:16-cv-02814-WQH-NLS
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