(PC) Humes v. State of California et al, No. 2:2018cv00244 - Document 7 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/13/18 GRANTING 2 , 4 plaintiff's request for leave to proceed in forma pauperis, DENYING 5 plaintiff's motion to dismiss filing fees and DENYING 6 plaintiff's motion for funds. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shall be collected in accordance with the court's order to the Sacramento County Sheriff filed concurrently herewith. Service is appropriate for defendant Becerra. The clerk of the court shall send plaintiff 1 USM-285 form, instruction sheet, summons and a copy of the complaint to be completed and returned within 30 days. The clerk of the court is direc ted to assign a District Court Judge to this case. Also, RECOMMENDING that all defendants other than defendant Becerra in his official capacity as the Attorney General of the State of California be dismissed. All claims other than plaintiff's claim arising under the Due Process Clause of the 14th amendment for injunctive relief be dismissed. Assigned and referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JON HUMES, 12 13 14 15 No. 2:18-cv-0244 CKD P Plaintiff, v. ORDER AND STATE OF CALIFORNIA, et al., FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a Sacramento County Jail prisoner proceeding pro se and seeking relief 18 pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 19 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 1 The court is required to screen complaints brought by prisoners seeking relief against a 2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 3 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 4 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 6 After having conducted the required screening, the court finds that plaintiff may proceed 7 on a claim arising under the Due Process Clause of the Fourteenth Amendment for injunctive 8 relief against Xavier Becerra, in his official capacity as the Attorney General of the State of 9 California, regarding plaintiff’s claim that he is wrongfully listed on a sex offender registry. 10 Accordingly, the court will order plaintiff to provide the court with information so that process 11 may be served on defendant Becerra. 12 In all other respects, the complaint fails to state a claim upon which relief can be granted. 13 With respect to any claim for monetary damages, plaintiff fails to allege any defendant was 14 actually involved in any violation of his civil rights. See Taylor v. List, 880 F.2d 1040, 1045 (9th 15 Cir. 1989) (liability under section 1983 arises only upon a showing of personal participation by 16 the defendant ). As for defendant the State of California and the “Sex + Arson Registry” which 17 plaintiff identifies as a division of the California Department of Justice, the Eleventh Amendment 18 serves as a jurisdictional bar to suits brought by private parties against states and state agencies. 19 Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam). 20 Finally, the court notes that plaintiff has filed a motion asking that the court waive the 21 filing fee for this case and provide plaintiff with $500 per month to “facilitate discovery and other 22 advances.” Both requests will be denied as prisoners are required to pay filing fees in full for 23 civil actions they file, see 28 U.S.C. § 1915(b)(1), and the court generally has no authority to 24 provide funds to pro se litigants for discovery or other litigation expenses. 25 In accordance with the above, IT IS HEREBY ORDERED that: 26 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2, 4) is granted. 27 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 28 shall be collected and paid in accordance with this court’s order to the Sacramento County Sheriff 2 1 2 3 4 5 6 filed concurrently herewith. 3. Service is appropriate for defendant Becerra in his official capacity as the Attorney General of the State of California. 4. The Clerk of the Court shall send plaintiff a USM-285 form, summons, an instruction sheet and a copy of the complaint. 5. Within thirty days from the date of this order, plaintiff shall complete the attached 7 Notice of Submission of Documents and submit the following documents to the court: 8 a. The completed Notice of Submission of Documents; 9 b. One completed summons; 10 c. One completed USM-285 form; and 11 d. Two copies of the complaint. 12 6. Plaintiff need not attempt service on defendant and need not request waiver of service. 13 Upon receipt of the above-described documents, the court will direct the United States Marshal to 14 serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment 15 of costs. 16 7. Plaintiff’s “motion to dismiss filing fees” (ECF No. 5) is denied. 17 8. Plaintiff’s “motion for funds” (ECF No. 6) is denied. 18 9. The Clerk of the Court is directed to assign a district court judge to this case. 19 IT IS HEREBY RECOMMENDED that: 20 1. All defendants other than defendant Becerra in his official capacity as the Attorney 21 22 23 General of the State of California be dismissed; and 2. All claims other than plaintiff’s claim arising under the Due Process Clause of the Fourteenth Amendment for injunctive relief be dismissed. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen after 26 being served with these findings and recommendations, plaintiff may file written objections with 27 the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 28 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 3 1 waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 2 1991). 3 Dated: April 13, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 1 hume0244.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JON HUMES, 12 13 14 No. 2:18-cv-0244 CKD P Plaintiff, v. NOTICE OF SUBMISSION STATE OF CALIFORNIA, et al., 15 OF DOCUMENTS Defendants. 16 17 18 Plaintiff submits the following documents in compliance with the court's order filed _____________________: 19 ____ completed summons form 20 ____ completed USM-285 forms 21 ____ copies of the ___________________ Complaint 22 23 DATED: 24 ____________________ Plaintiff 25 26 _______________________________ 27 28 1