Butler v. Kelso et al, No. 3:2011cv02684 - Document 4 (S.D. Cal. 2012)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis. Imposing no initial partial filing fee and Garnishing Balance from Prisoners Trust Account. Directing US Marshal to 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 f orward 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 Matthew Cate, Secretary CDCR) Clerk to prepare IFP Packet. Signed by Judge Cathy Ann Bencivengo on 03/01/2012. (All non-registered users served via U.S. Mail Service)(yeb)
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Butler v. Kelso et al Doc. 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 THEODORE BUTLER, CDCR #E-49151, Civil No. Plaintiff, 13 vs. 16 17 18 19 CLARK KELSO; J. RIVERA; J. WALKER; RICKI BARNETT; P. JAYUNSUNDARA; L.D. ZAMORA, AND 20 Defendants. 21 ORDER: (1) GRANTING PLAINTIFF’S MOTION 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 No. 2] 14 15 11-2684 CAB (RBB) (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 Theodore Butler (“Plaintiff”), a state prisoner currently incarcerated at the Richard J. 24 Donovan Correctional Facility (“Donovan”) located in San Diego, California, and proceeding 25 in pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges that 26 prison officials have denied his Eighth Amendment rights by failing to provide adequate medical 27 care. (See Compl. at 1.) Plaintiff seeks compensatory and punitive damages. (Id. at 8.) 28 /// K:\COMMON\CHMB_Bencivengo\Cases\Habeas\Butler--11cv2684\grt IFP & serve.wpd 1 11cv2684 CAB (RBB) 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 a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF 3 No. 2]. 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\CHMB_Bencivengo\Cases\Habeas\Butler--11cv2684\grt IFP & serve.wpd 2 See 28 U.S.C. 11cv2684 CAB (RBB) 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 Motion to Proceed IFP [ECF No. 2], and 11 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\CHMB_Bencivengo\Cases\Habeas\Butler--11cv2684\grt IFP & serve.wpd 3 11cv2684 CAB (RBB) 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).1 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) (“The officers of the court shall issue and serve all process, and perform 14 all duties in [IFP] cases.”); F ED.R.C IV.P. 4(c)(3) (“[T]he court may order that service be made 15 by a United States marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma 16 pauperis under 28 U.S.C. § 1915.”). 17 III. 18 C ONCLUSION AND O RDER 19 Good cause appearing therefor, IT IS HEREBY ORDERED that: 20 1. 21 22 Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is GRANTED. 2. The Secretary of California Department of Corrections and Rehabilitation, or his 23 designee, is ordered to collect from Plaintiff’s prison trust account the $350 balance of the filing 24 fee owed in this case by collecting monthly payments from the trust account in an amount equal 25 to twenty percent (20%) of the preceding month’s income credited to the account and forward 26 payments to the Clerk of the Court each time the amount in the account exceeds $10 in 27 1 28 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12[] motion that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). K:\COMMON\CHMB_Bencivengo\Cases\Habeas\Butler--11cv2684\grt IFP & serve.wpd 4 11cv2684 CAB (RBB) 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\CHMB_Bencivengo\Cases\Habeas\Butler--11cv2684\grt IFP & serve.wpd 5 11cv2684 CAB (RBB) 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 5 DATED: March 1, 2012 6 7 CATHY ANN BENCIVENGO United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K:\COMMON\CHMB_Bencivengo\Cases\Habeas\Butler--11cv2684\grt IFP & serve.wpd 6 11cv2684 CAB (RBB)
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