-WMC Sandrock v. Choo et al, No. 3:2011cv01448 - Document 3 (S.D. Cal. 2011)
Court Description: ORDER granting Doc. 2 Motion for Proceed In Forma Pauperis. Directing U.S. Marshal to Effect Service of Complaint Pursuant to Fed.R.Civ.P. 4(c)(3) & 28 U.S.C. 1915(d). Matthew Cate, Secretary, California Department of Corrections and Rehabilitation shall collect from Plaintiff's prison trust account the $350 balance of the filing fee owed by collecting monthly payments in an amount equal to 20% of the preceding month's income credited to the account and forward to Clerk of Court each time the account exceeds $10 in accordance with 28 USC 195(b)(2). The Clerk shall issue a summons as to Plaintiff's Complaint Doc. 1 along with a blank U.S. Marshal Form 285 for each defendant. Provide Plaintiff with certified copies. U.S. Marshal shall effect service of complaint and summons. Any paper received by the Court which has not been filed with the Clerk or which fails to include a Certificate of Service will be disregarded. Signed by Judge Irma E. Gonzalez on 7/28/2011.(Order electronically transmitted to Matthew Cate, Secretary CDCR)(Summons, Certified copies, and all other forms have been sent to defendant)(All non-registered users served via U.S. Mail Service)(aef)
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-WMC Sandrock v. Choo et al Doc. 3 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 STUART SANDROCK, CDCR #F-77645, Civil No. Plaintiff, 13 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, [ECF No.2]; and 14 vs. 15 11cv1448 IEG (WMc) (2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF COMPLAINT PURSUANT TO FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d) 16 19 I CHOO, M.D.; S. DING, M.D.; N. LIND, M.D.; J. LEE, M.D.; E. GUENTHER, R.N.; J. RIVERA; L. BLAIR; THE CALIFORNIA DEP’T OF CORRECTIONS; THE STATE OF CALIFORNIA; DOES 1-10, 20 Defendants. 17 18 21 22 23 Plaintiff, Stuart J. Sandrock, a state prisoner currently incarcerated at Ironwood State 24 Prison (“Ironwood”) located in Blythe California and proceeding pro se, has filed a civil rights 25 action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that he has been denied adequate medical 26 care when he was housed at the Richard J. Donovan Correctional Facility (“Donovan”) and his 27 current place of incarceration, Ironwood. Plaintiff seeks injunctive relief as well as general and 28 punitive damages. K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\11cv1448-grt IFP & serve.wpd -1- 11cv1448 IEG (WMc) Dockets.Justia.com 1 Plaintiff has not prepaid the $350 civil filing fee required by 28 U.S.C. § 1914(a); instead 2 he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) 3 [ECF No.2]. 4 I. 5 MOTION TO PROCEED IFP [ECF No.2] 6 All parties instituting any civil action, suit or proceeding in a district court of the United 7 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 8 U.S.C. § 1914(a). An action may proceed despite a party’s failure to prepay the entire fee only 9 if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. 10 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however, 11 remain obligated to pay the entire fee in installments, regardless of whether the action is 12 ultimately dismissed for any reason. See 28 U.S.C. § 1915(b)(1) & (2). 13 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a 14 prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account 15 statement (or institutional equivalent) for the prisoner for the six-month period immediately 16 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the certified trust account 17 statement, the Court must assess an initial payment of 20% of (a) the average monthly deposits 18 in the account for the past six months, or (b) the average monthly balance in the account for the 19 past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 20 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). That institution having custody of the prisoner must 21 collect subsequent payments, assessed at 20% of the preceding month’s income, in any month 22 in which the prisoner’s account exceeds $10, and forward those payments to the Court until the 23 entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 24 The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C. 25 § 1915(a)(1), and that he has attached a certified copy of his trust account statement pursuant to 26 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff’s trust account statement shows that 27 he has a current balance of zero and therefore insufficient funds from which to pay filing fees 28 at this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\11cv1448-grt IFP & serve.wpd -2- 11cv1448 IEG (WMc) 1 prohibited from bringing a civil action or appealing a civil action or criminal judgment for the 2 reason that the prisoner has no assets and no means by which to pay the initial partial filing 3 fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 4 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack 5 of funds available to him when payment is ordered.”). 6 Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP [ECF No.2] and 7 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 8 balance of the filing fees mandated shall be collected and forwarded to the Clerk of the Court 9 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 10 II. 11 SUA SPONTE SCREENING PER 28 U.S.C. § 1915(e)(2) AND § 1915A 12 A. Standard 13 The PLRA also obligates the Court to review complaints filed by all persons proceeding 14 IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 15 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 16 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 17 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 18 provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion 19 thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from 20 defendants who are immune. See 28 U.S.C. § 1915(e)(2)(B) and § 1915A; Lopez v. Smith, 203 21 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 22 446 (9th Cir. 2000) (§ 1915A). 23 Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte 24 dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is 25 frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 26 324 (1989). However 28 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing 27 an IFP or prisoner’s suit make and rule on its own motion to dismiss before effecting service of 28 the Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 (“[S]ection K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\11cv1448-grt IFP & serve.wpd -3- 11cv1448 IEG (WMc) 1 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint 2 that fails to state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) 3 (discussing 28 U.S.C. § 1915A). 4 “[W]hen determining whether a complaint states a claim, a court must accept as true all 5 allegations of material fact and must construe those facts in the light most favorable to the 6 plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) 7 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s 8 duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept., 9 839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v. 10 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). 11 The Court finds that Plaintiff’s claims are sufficiently pleaded to survive the sua sponte 12 screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Therefore, Plaintiff is entitled to 13 U.S. Marshal service on his behalf. See Lopez, 203 F.3d at 1126-27; 28 U.S.C. § 1915(d) (“The 14 officers of the court shall issue and serve all process, and perform all duties in [IFP] cases.”); 15 FED.R.CIV.P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal 16 or deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. 17 § 1915.”). Plaintiff is cautioned, however, that “the sua sponte screening and dismissal 18 procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that 19 [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 20 2007). 21 III. 22 CONCLUSION AND ORDER 23 Good cause appearing therefor, IT IS HEREBY ORDERED that: 24 1. 25 26 Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No.2] is GRANTED. 2. The Secretary of the California Department of Corrections and Rehabilitation, or 27 his designee, is ordered to collect from Plaintiff’s prison trust account the $350 balance of the 28 filing fee owed in this case by collecting monthly payments from the trust account in an amount K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\11cv1448-grt IFP & serve.wpd -4- 11cv1448 IEG (WMc) 1 equal to twenty percent (20%) of the preceding month’s income credited to the account and 2 forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in 3 accordance with 28 U.S.C. § 1915(b)(2). 4 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 3. 5 ALL PAYMENTS SHALL BE CLEARLY The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate, 6 Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883, 7 Sacramento, California, 94283-0001. 8 IT IS FURTHER ORDERED that: 9 4. The Clerk shall issue a summons as to Plaintiff’s Complaint [ECF No. 1] upon 10 Defendants and shall forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each 11 of these Defendants. In addition, the Clerk shall provide Plaintiff with a certified copy of this 12 Order, the Court’s Order granting Plaintiff leave to proceed IFP, and certified copies of his 13 Complaint and the summons for purposes of serving each Defendant. Upon receipt of this “IFP 14 Package,” Plaintiff is directed to complete the Form 285s as completely and accurately as 15 possible, and to return them to the United States Marshal according to the instructions provided 16 by the Clerk in the letter accompanying his IFP package. Thereafter, the U.S. Marshal shall 17 serve a copy of the Complaint and summons upon each Defendant as directed by Plaintiff on 18 each Form 285. All costs of service shall be advanced by the United States. See 28 U.S.C. 19 § 1915(d); FED.R.CIV.P. 4(c)(3). 5. 20 Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint within the 21 time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42 22 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted to “waive the right to 23 reply to any action brought by a prisoner confined in any jail, prison, or other correctional 24 facility under section 1983,” once the Court has conducted its sua sponte screening pursuant to 25 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based 26 on the face on the pleading alone that Plaintiff has a “reasonable opportunity to prevail on the 27 merits,” Defendants are required to respond). 28 /// K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\11cv1448-grt IFP & serve.wpd -5- 11cv1448 IEG (WMc) 1 6. Plaintiff shall serve upon Defendants or, if appearance has been entered by 2 counsel, upon Defendants’ counsel, a copy of every further pleading or other document 3 submitted for consideration of the Court. Plaintiff shall include with the original paper to be 4 filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy 5 of any document was served on Defendants, or counsel for Defendants, and the date of service. 6 Any paper received by the Court which has not been filed with the Clerk or which fails to 7 include a Certificate of Service will be disregarded. 8 9 IT IS SO ORDERED. 7/28/11 DATED: _______________________ _________________________________________ HON. IRMA E. GONZALEZ, Chief Judge United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\11cv1448-grt IFP & serve.wpd -6- 11cv1448 IEG (WMc)
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