Sekerke v. Wallace et al, No. 3:2011cv01978 - Document 12 (S.D. Cal. 2012)
Court Description: ORDER granting 8 Motion for Extension of Time to Re-File IFP Motion; granting 9 Motion for Leave to Proceed in forma pauperis; 11 Motion for Leave to proceed in forma pauperis. The Secretary CDCR, or his designee, is ordered to collect from pr ison 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 payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). Clerk shall issue a summons as to Pla's Complaint. US Marshal shall effect service of Complaint and summons upon Defendants Signed by Judge John A. Houston on 1/5/2012.(Order electronically transmitted to Matthew Cate, Secretary CDCR). (IFP Package prepared and sent to Plaintiff) (All non-registered users served via U.S. Mail Service) (jah)
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Sekerke v. Wallace et al Doc. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 KEITH WAYNE SEKERKE, CDCR #V-15331, Civil No. Plaintiff, 13 vs. 16 17 18 PETER WALLACE; J. GARCIA; R. COBB; E. GARCIA, 19 20 Defendants. 21 ORDER: (1) GRANTING PLAINTIFF’S MOTIONS TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE AND GARNISHING BALANCE FROM PRISONER’S TRUST ACCOUNT PURSUANT TO 28 U.S.C. § 1915(a) [ECF Nos. 8, 9, 11]; AND 14 15 11-1978 JAH (NLS) (2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF COMPLAINT PURSUANT TO F ED.R.C IV.P. 4(c)(3) & 28 U.S.C. § 1915(d) 22 23 24 Keith Sekerke, (“Plaintiff”), a state prisoner currently incarcerated at the California 25 Correctional Institution located in Tehachapi, California, and proceeding in pro se, has filed this 26 civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff claims that his constitutional 27 rights were violated when he was housed at the Richard J. Donovan Correctional Facility in 28 2011. K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\11cv1978-grt IFP & serve.wpd 1 11cv1978 JAH (NLS) Dockets.Justia.com 1 Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead he 2 has filed three Motions to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) 3 [ECF Nos. 8, 9, 11]. 4 I. 5 M OTION TO P ROCEED IFP 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 plaintiff’s failure to prepay the entire fee 9 only if he 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). However, a prisoner granted leave to proceed IFP 11 remains obligated to pay the entire fee in installments, regardless of whether his action is 12 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 13 (9th Cir. 2002). 14 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a 15 prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account 16 statement (or institutional equivalent) for the prisoner for the six-month period immediately 17 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 18 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 19 payment of 20% of (a) the average monthly deposits in the account for the past six months, or 20 (b) the average monthly balance in the account for the past six months, whichever is greater, 21 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 22 institution having custody of the prisoner must collect subsequent payments, assessed at 20% of 23 the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and 24 forward those payments to the Court until the entire filing fee is paid. 25 § 1915(b)(2). 26 /// 27 /// 28 /// K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\11cv1978-grt IFP & serve.wpd 2 See 28 U.S.C. 11cv1978 JAH (NLS) 1 The Court finds that Plaintiff has submitted a certified copy of his trust account statement Andrews, 398 F.3d at 1119. 2 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. C AL. C IVLR 3.2. 3 Plaintiff’s trust account statement shows he has insufficient funds with which to pay any initial 4 partial filing fee. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 5 prohibited from bringing a civil action or appealing a civil action or criminal judgment for the 6 reason that the prisoner has no assets and no means by which to pay [an] initial partial filing 7 fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 8 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack 9 of funds available.”). 10 Therefore, the Court GRANTS Plaintiff’s Motions to Proceed IFP [ECF Nos. 8, 9, 11], 11 and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 12 balance of the filing fees mandated shall be collected and forwarded to the Clerk of the Court 13 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 14 II. 15 S CREENING P URSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 16 The PLRA also obligates the Court to review complaints filed by all persons proceeding 17 IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 18 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 19 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 20 practicable after docketing.” 21 provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, 22 which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who 23 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126- 24 27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 25 2010) (discussing 28 U.S.C. § 1915A(b)). See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 26 “[W]hen determining whether a complaint states a claim, a court must accept as true all 27 allegations of material fact and must construe those facts in the light most favorable to the 28 plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Barren v. Harrington, K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\11cv1978-grt IFP & serve.wpd 3 11cv1978 JAH (NLS) 1 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) “parallels the language of Federal 2 Rule of Civil Procedure 12(b)(6)”). In addition, courts “have an obligation where the petitioner 3 is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the 4 petitioner the benefit of any doubt.” Hebbe v. Pliler, __ F.3d __, 2010 WL 4673711 at *3 & n.7 5 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). The court may 6 not, however, “supply essential elements of claims that were not initially pled.” Ivey v. Board 7 of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and 8 conclusory allegations of official participation in civil rights violations are not sufficient to 9 withstand a motion to dismiss.” Id. 10 As currently pleaded, the Court finds Plaintiff’s allegations sufficient to survive the sua 11 sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Lopez, 203 F.3d at 12 1126-27. Accordingly, the Court finds Plaintiff is entitled to U.S. Marshal service on his behalf. 13 See 28 U.S.C. § 1915(d); F ED.R.C IV.P. 4(c)(3) (“[T]he court may order that service be made by 14 a United States marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma 15 pauperis under 28 U.S.C. § 1915.”). Plaintiff is cautioned that “the sua sponte screening and 16 dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12[] motion 17 that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. 18 Cal. 2007). 19 III. 20 C ONCLUSION AND O RDER 21 Good cause appearing therefor, IT IS HEREBY ORDERED that: 22 1. 23 24 Plaintiff’s Motions to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF Nos. 8, 9, 11] are GRANTED. 2. The Secretary of California Department of Corrections and Rehabilitation, or his 25 designee, is ordered to collect from Plaintiff’s prison trust account the $350 balance of the filing 26 fee owed in this case by collecting monthly payments from the trust account in an amount equal 27 to twenty percent (20%) of the preceding month’s income credited to the account and forward 28 payments to the Clerk of the Court each time the amount in the account exceeds $10 in K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\11cv1978-grt IFP & serve.wpd 4 11cv1978 JAH (NLS) 1 accordance with 28 U.S.C. § 1915(b)(2). 2 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 3 3. ALL PAYMENTS SHALL BE CLEARLY The Clerk of the Court is directed to serve a copy of this order on Matthew Cate, 4 Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883, 5 Sacramento, California 94283-0001. 6 IT IS FURTHER ORDERED that: 7 4. The Clerk shall issue a summons as to Plaintiff’s Complaint [ECF No. 1] upon 8 Defendants and shall and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for 9 each Defendant. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order 10 and a certified copy of his Complaint and the summons so that he may serve Defendants. Upon 11 receipt of 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. Upon receipt, 14 the U.S. Marshal shall serve a copy of the Complaint and summons upon Defendants as directed 15 by Plaintiff on the USM Form 285s. All costs of service shall be advanced by the United States. 16 See 28 U.S.C. § 1915(d); F ED.R.C IV.P. 4(c)(3). 17 5. Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint within the 18 time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42 19 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the right to 20 reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility 21 under section 1983,” once the Court has conducted its sua sponte screening pursuant to 28 22 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on 23 the face on the pleading alone that Plaintiff has a “reasonable opportunity to prevail on the 24 merits,” the defendant is required to respond). 25 6. Plaintiff shall serve upon the Defendants or, if appearance has been entered by 26 counsel, upon Defendants’ counsel, a copy of every further pleading or other document 27 submitted for consideration of the Court. Plaintiff shall include with the original paper to be 28 filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\11cv1978-grt IFP & serve.wpd 5 11cv1978 JAH (NLS) 1 of any document was served on Defendants, or counsel for Defendants, and the date of service. 2 Any paper received by the Court which has not been filed with the Clerk or which fails to 3 include a Certificate of Service will be disregarded. 4 DATED: ___1-5-12________ 5 6 ________________________________________ HON. JOHN A. HOUSTON United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\11cv1978-grt IFP & serve.wpd 6 11cv1978 JAH (NLS)
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