Green v. Director/Secretary, California Department of Corrections and Rehabilitation et al, No. 3:2014cv00965 - Document 3 (S.D. Cal. 2014)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis. US Marshal shall 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 th is 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). Defendants are 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 8/29/14. (All non-registered users served via U.S. Mail Service)(IFP package prepared)(kas)
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Green v. Director/Secretary, California Department of Corrections and Rehabilitation et al Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JAMES MAXWELL GREEN, CDCR #F-16348, Plaintiff, 13 14 15 16 17 18 19 20 Civil No. ORDER: (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS [Doc. No. 2] vs. DIRECTOR/SECRETARY, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; D. PARAMO, Warden; W. EDROZO, Correctional Officer; R. JOHNSON, Correctional Officer; A. ALANIZ, Correctional Officer; WHITING, Correctional Sgt.; DAVIS, Correctional Lt.; JOHN and JANE DOES, 21 14cv0965 LAB (BGS) AND (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) Defendants. 22 23 James Maxwell Green (“Plaintiff”), who is currently incarcerated at Richard J. 24 Donovan Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, 25 has filed a civil rights complaint (“Compl.) pursuant to 42 U.S.C. § 1983 (Doc No. 1). 26 Plaintiff claims Defendants have violated his right to free exercise of his Native 27 American religion by denying him “access to a sweat lodge and/or place” in which to 28 practice his faith, and have “intimidated [him] with acts of violence” and subjected him I:\Everyone\_EFILE-PROSE\LAB\14cv0965-grt-IFP&serve.wpd 1 14cv0965 LAB (BGS) Dockets.Justia.com 1 to “racial discrimination” and “harassment” by “placing him in a cage” and confiscating 2 religious items he claims are necessary to his religious practice. See Compl. at 3-5. He 3 seeks injunctive relief as well as “further damages of [the] cost of . . . filing.” Id. at 6. 4 Plaintiff has not prepaid the civil filing fee; instead he has filed a Motion to 5 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2). 6 I. MOTION TO PROCEED IFP 7 All parties instituting any civil action, suit or proceeding in a district court of the 8 United States, except an application for writ of habeas corpus, must pay a filing fee of 9 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 10 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 11 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a 12 prisoner granted leave to proceed IFP remains obligated to pay the entire fee in 13 installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C. 14 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 15 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 16 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of the 17 trust fund account statement (or institutional equivalent) for the prisoner for the six- 18 month period immediately preceding the filing of the complaint.” 19 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 20 trust account statement, the Court assesses an initial payment of 20% of (a) the average 21 monthly deposits in the account for the past six months, or (b) the average monthly 22 balance in the account for the past six months, whichever is greater, unless the prisoner 23 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 24 having custody of the prisoner then collects subsequent payments, assessed at 20% of 25 the preceding month’s income, in any month in which the prisoner’s account exceeds 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\14cv0965-grt-IFP&serve.wpd 2 14cv0965 LAB (BGS) 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 trainee at RJD verifying 7 his available balances, and has determined that while he has had an average monthly 8 balance of $13.73 in his account for the 6-month period preceding the filing of this 9 action, Plaintiff has no available funds from which to pay an initial partial filing fee at 10 this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 11 prohibited from bringing a civil action or appealing a civil action or criminal judgment 12 for the reason that the prisoner has no assets and no means by which to pay the initial 13 partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as 14 a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure 15 to pay . . . due to the lack of funds available to him when payment is ordered.”). 16 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 2) and 17 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 18 balance of the filing fees mandated will be collected by the CDCR and forwarded to the 19 Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 20 § 1915(b)(1). 21 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 22 The PLRA also requires that the Court review complaints filed by all persons 23 proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained in any 24 facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of 25 criminal law or the terms or conditions of parole, probation, pretrial release, or 26 diversionary program,” “as soon as practicable after docketing.” See 28 U.S.C. 27 §§ 1915(e)(2) and 1915A(b). Under these statutes, the Court must sua sponte dismiss 28 complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, I:\Everyone\_EFILE-PROSE\LAB\14cv0965-grt-IFP&serve.wpd 3 14cv0965 LAB (BGS) 1 or which seek damages from defendants who are immune. See 28 U.S.C. 2 §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 3 (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 4 (discussing 28 U.S.C. § 1915A(b)). 5 “[W]hen determining whether a complaint states a claim, a court must accept as 6 true all allegations of material fact and must construe those facts in the light most 7 favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also 8 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) 9 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, courts 10 “have an obligation where the petitioner is pro se, particularly in civil rights cases, to 11 construe the pleadings liberally and to afford the petitioner the benefit of any doubt.” 12 Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 13 F.2d 1026, 1027 n.1 (9th Cir. 1985)). The court may not, however, “supply essential 14 elements of claims that were not initially pled.” Ivey v. Board of Regents of the 15 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 16 As currently pleaded, the Court finds Plaintiff’s free exercise of religion claims 17 are sufficient to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) 18 and 1915A(b).2 See Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (a 19 prisoner’s First Amendment right to free exercise is triggered when prison officials are 20 alleged to have substantially burden the practice of an inmate’s religion by preventing 21 him from engaging in conduct which he sincerely believes is consistent with his faith) 22 (citing Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994)). 23 Accordingly, the Court will direct U.S. Marshal service on Plaintiff’s behalf. See 24 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and 25 perform all duties in [IFP] cases.”); FED.R.CIV.P. 4(c)(3) (“[T]he court may order that 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\14cv0965-grt-IFP&serve.wpd 4 14cv0965 LAB (BGS) 1 service be made by a United States marshal or deputy marshal . . . if the plaintiff is 2 authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 3 III. CONCLUSION AND ORDER 4 Good cause appearing, IT IS HEREBY ORDERED that: 5 1. 6 7 Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2) is GRANTED. 2. The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s 8 prison trust account the $350 filing fee owed in this case by collecting monthly payments 9 from the account in an amount equal to twenty percent (20%) of the preceding month’s 10 income and forward payments to the Clerk of the Court each time the amount in the 11 account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 12 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 13 TO THIS ACTION. 14 3. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey 15 A. Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 16 942883, Sacramento, California, 94283-0001. 17 IT IS FURTHER ORDERED that: 18 4. The Clerk is DIRECTED to issue a summons as to Plaintiff’s Complaint 19 (Doc. No. 1) upon Defendants and forward it to Plaintiff along with a blank U.S. Marshal 20 Form 285 for each Defendant. In addition, the Clerk is directed provide Plaintiff with 21 a certified copy of this Order and a certified copy of his Complaint (Doc. No. 1) and the 22 summons so that he may serve each named Defendant. Upon receipt of this “IFP 23 Package,” Plaintiff is directed to complete the Form 285s as completely and accurately 24 as possible, and to return them to the United States Marshal according to the instructions 25 provided by the Clerk in the letter accompanying his IFP package. Upon receipt, the 26 U.S. Marshal is ORDERED to serve a copy of the Complaint and summons upon each 27 Defendant as directed by Plaintiff on the USM Form 285s. All costs of service will be 28 advanced by the United States. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3). I:\Everyone\_EFILE-PROSE\LAB\14cv0965-grt-IFP&serve.wpd 5 14cv0965 LAB (BGS) 1 5. Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint 2 within the time provided by the applicable provisions of Federal Rule of Civil Procedure 3 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted 4 to “waive the right to reply to any action brought by a prisoner confined in any jail, 5 prison, or other correctional facility under section 1983,” once the Court has conducted 6 its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, 7 has made a preliminary determination based on the face on the pleading alone that 8 Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is required 9 to respond). 10 6. Plaintiff must serve upon the Defendants or, if appearance has been entered 11 by counsel, upon Defendants’ counsel, a copy of every further pleading or other 12 document submitted for consideration by the Court. Plaintiff must include with the 13 original paper to be filed with the Clerk of the Court a certificate stating the manner in 14 which a true and correct copy of the document was served on Defendants, or counsel for 15 Defendants, and the date of such service. Any paper received by the Court which has not 16 been filed with the Clerk or which fails to include a Certificate of Service will be 17 disregarded. 18 19 DATED: August 29, 2014 20 21 HONORABLE LARRY ALAN BURNS United States District Judge 22 23 24 25 26 27 28 I:\Everyone\_EFILE-PROSE\LAB\14cv0965-grt-IFP&serve.wpd 6 14cv0965 LAB (BGS)
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