Fonseca v. California Department of Corrections and Rehabilitations et al, No. 3:2014cv00787 - Document 3 (S.D. Cal. 2014)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis. 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 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). US Marshall s hall effect service of complaint. Defendants are thereafter ordered to reply to Plaintiff's Complaint within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). (Order electronically transmitted to Secretary of CDCR). Signed by Judge Larry Alan Burns on 8/19/14 (IFP package prepared) (All non-registered users served via U.S. Mail Service)(kas)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 RODERICK OLAF FONSECA, CDCR #G-62092, Plaintiff, 13 14 15 16 17 18 Civil No. ORDER: (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS [Doc. No. 2] vs. AND CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; JEFFREY A. BEARD, Ph.D., Secretary, 19 14cv0787 LAB (BLM) Defendants. (2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF COMPLAINT PURSUANT TO FED.R.CIV.P. 4(c)(3) AND 28 U.S.C. § 1915(d) 20 21 Roderick Olaf Fonseca (“Plaintiff”), who is currently incarcerated at California 22 State Prison in Calipatria, California (“CAL”), and proceeding pro se, has filed a civil 23 rights complaint (“Compl.) pursuant to 42 U.S.C. § 1983 (Doc No. 1). 24 Plaintiff claims the California Department of Corrections and Rehabilitation’s 25 (“CDCR”) implementation of a new “Jewish Kosher diet meal plan” (“JKDP”) at CAL 26 violates his rights to free exercise and equal protection under the First and Fourteenth 27 Amendments. See Compl. at 3. Plaintiff further claims the JKDP violates his rights as 28 an observant Jew under the Religious Land Use and Institutionalized Persons Act I:\Everyone\_EFILE-PROSE\LAB\14cv0787-grt-IFP&serve.wpd 1 14cv0787 LAB (BLM) 1 (“RLUIPA”), by “forcing [him] to become vegetarian.” Id. Plaintiff seeks injunctive 2 relief as well as monetary damages “to be determined at trial.” Id. at 7. Plaintiff has not prepaid the civil filing fee; instead he has filed a Motion to 3 4 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2). 5 I. MOTION TO PROCEED IFP 6 All parties instituting any civil action, suit or proceeding in a district court of the 7 United States, except an application for writ of habeas corpus, must pay a filing fee of 8 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 9 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 10 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a 11 prisoner granted leave to proceed IFP remains obligated to pay the entire fee in 12 installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C. 13 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 14 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 15 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of the 16 trust fund account statement (or institutional equivalent) for the prisoner for the six- 17 month period immediately preceding the filing of the complaint.” 18 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 19 trust account statement, the Court assesses an initial payment of 20% of (a) the average 20 monthly deposits in the account for the past six months, or (b) the average monthly 21 balance in the account for the past six months, whichever is greater, unless the prisoner 22 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 23 having custody of the prisoner then collects subsequent payments, assessed at 20% of 24 the preceding month’s income, in any month in which the prisoner’s account exceeds 25 /// 28 U.S.C. 26 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, 28 2013). However, the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id. 1 27 I:\Everyone\_EFILE-PROSE\LAB\14cv0787-grt-IFP&serve.wpd 2 14cv0787 LAB (BLM) 1 $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 2 U.S.C. § 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. 5 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement, 6 as well as the attached prison certificate issued by an accounting clerk at CAL verifying 7 his available balances, and has determined that Plaintiff has no available funds from 8 which to pay filing fees at this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no 9 event shall a prisoner be prohibited from bringing a civil action or appealing a civil 10 action or criminal judgment for the reason that the prisoner has no assets and no means 11 by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 12 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case 13 based solely on a “failure to pay . . . due to the lack of funds available to him when 14 payment is ordered.”). 15 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 2) and 16 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 17 balance of the filing fees mandated will be collected by the CDCR and forwarded to the 18 Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 19 § 1915(b)(1). 20 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 21 The PLRA also requires that the Court review complaints filed by all persons 22 proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained in any 23 facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of 24 criminal law or the terms or conditions of parole, probation, pretrial release, or 25 diversionary program,” “as soon as practicable after docketing.” 26 §§ 1915(e)(2) and 1915A(b). Under these statutes, the Court must sua sponte dismiss 27 complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, 28 or which seek damages from defendants who are immune. I:\Everyone\_EFILE-PROSE\LAB\14cv0787-grt-IFP&serve.wpd 3 See 28 U.S.C. See 28 U.S.C. 14cv0787 LAB (BLM) 1 §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 2 (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 3 (discussing 28 U.S.C. § 1915A(b)). 4 “[W]hen determining whether a complaint states a claim, a court must accept as 5 true all allegations of material fact and must construe those facts in the light most 6 favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also 7 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) 8 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, courts 9 “have an obligation where the petitioner is pro se, particularly in civil rights cases, to 10 construe the pleadings liberally and to afford the petitioner the benefit of any doubt.” 11 Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 12 F.2d 1026, 1027 n.1 (9th Cir. 1985)). The court may not, however, “supply essential 13 elements of claims that were not initially pled.” Ivey v. Board of Regents of the 14 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). As currently pleaded, the Court finds Plaintiff’s pleading is sufficient to survive 15 sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).2 16 the 17 Accordingly, the Court will direct U.S. Marshal service on Plaintiff’s behalf. See 28 18 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and 19 perform all duties in [IFP] cases.”); FED.R.CIV.P. 4(c)(3) (“[T]he court may order that 20 service be made by a United States marshal or deputy marshal . . . if the plaintiff is 21 authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 22 III. CONCLUSION AND ORDER 23 Good cause appearing, IT IS HEREBY ORDERED that: 24 1. 25 Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2) is GRANTED. 26 27 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a 28 defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 2 I:\Everyone\_EFILE-PROSE\LAB\14cv0787-grt-IFP&serve.wpd 4 14cv0787 LAB (BLM) 1 2. The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s 2 prison trust account the $350 filing fee owed in this case by collecting monthly payments 3 from the account in an amount equal to twenty percent (20%) of the preceding month’s 4 income and forward payments to the Clerk of the Court each time the amount in the 5 account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 6 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 7 TO THIS ACTION. 8 9 10 3. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey A. Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883, Sacramento, California, 94283-0001. 11 IT IS FURTHER ORDERED that: 12 4. The Clerk shall issue a summons as to Plaintiff’s Complaint (Doc. No. 1) 13 upon Defendants and shall and forward it to Plaintiff along with a blank U.S. Marshal 14 Form 285 for each Defendant. In addition, the Clerk shall provide Plaintiff with a 15 certified copy of this Order and a certified copy of his Complaint (Doc. No. 1) and the 16 summons so that he may serve each named Defendant. Upon receipt of this “IFP 17 Package,” Plaintiff is directed to complete the Form 285s as completely and accurately 18 as possible, and to return them to the United States Marshal according to the instructions 19 provided by the Clerk in the letter accompanying his IFP package. Upon receipt, the 20 U.S. Marshal shall serve a copy of the Complaint and summons upon each Defendant as 21 directed by Plaintiff on the USM Form 285s. All costs of service shall be advanced by 22 the United States. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3). 23 5. Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint 24 within the time provided by the applicable provisions of Federal Rule of Civil Procedure 25 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted 26 to “waive the right to reply to any action brought by a prisoner confined in any jail, 27 prison, or other correctional facility under section 1983,” once the Court has conducted 28 its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, I:\Everyone\_EFILE-PROSE\LAB\14cv0787-grt-IFP&serve.wpd 5 14cv0787 LAB (BLM) 1 has made a preliminary determination based on the face on the pleading alone that 2 Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is required 3 to respond). 4 6. Plaintiff must serve upon the Defendants or, if appearance has been entered 5 by counsel, upon Defendants’ counsel, a copy of every further pleading or other 6 document submitted for consideration of the Court. Plaintiff must include with the 7 original paper to be filed with the Clerk of the Court a certificate stating the manner in 8 which a true and correct copy of any document was served on Defendants, or counsel for 9 Defendants, and the date of service. Any paper received by the Court which has not been 10 filed with the Clerk or which fails to include a Certificate of Service will be disregarded. 11 12 DATED: August 19, 2014 13 14 HONORABLE LARRY ALAN BURNS United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I:\Everyone\_EFILE-PROSE\LAB\14cv0787-grt-IFP&serve.wpd 6 14cv0787 LAB (BLM)
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