Lambesis v. Abiaro et al, No. 3:2015cv01359 - Document 3 (S.D. Cal. 2015)

Court Description: ORDER Granting 2 Plaintiff's Motion to Proceed in forma pauperis; Directing U.S. Marshal to Effect Service of Summons and Complaint. The Court: Directs the Secretary of the CDCR, or his designee, to collect the $62.96 initial filing f ee assessed by this Order from Plaintiffs prison trust account, and forward the remaining balance of the full $350.00 owed by collecting monthly payments from Plaintiffs account in an amount equal to twenty percent of the preceding month' ;s income to the Clerk of the Court each time the amount in Plaintiff's account exceeds $10; Directs the Clerk of the Court to serve a copy of this Order on Jeffrey A. Beard; Orders the U.S. Marshal to serve a copy of the Complaint and sum mons upon Defendants as directed by Plaintiff; Directs the Clerk to issue a summons as to Plaintiff's Complaint upon Defendants and forward it to Plaintiff along with blank U.S. Marshal Form 285 for each Defendant. The Clerk will provide Plai ntiff with a certified copy of this Order, a certified copy of his Complaint and the summons so that he may serve Defendants; Orders Defendants to reply to Plaintiff's Complaint within the time provided by the applicable provisions; Orders Pl aintiff to serve upon Defendants or, if an appearance has been entered by counsel, upon Defendants' counsel, a copy of every further pleading or other document he wishes the Court to consider.. Signed by Judge Michael M. Anello on 9/8/15. (All non-registered users served via U.S. Mail Service)(dlg)

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Lambesis v. Abiaro et al Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 TIMOTHY PETER LAMBESIS, CDCR #AU-0886, Plaintiff, 13 14 Civil No. vs. 15 16 17 18 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a); [Doc. No. 2] MARY ABIARO, Nurse; PACE, Doctor, JOHN DOE, Psychiatrist, Defendants. 19 20 15cv1359 MMA (NLS) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF SUMMONS AND COMPLAINT PURSUANT TO 28 U.S.C. § 1915(d) AND FED.R.CIV.P. 4(c)(3) Timothy Peter Lambesis (“Plaintiff”), currently incarcerated at the California Rehabilitation Center (“CRC”) in Norco, California, and proceeding pro se, has filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (Doc. No. 1). Plaintiff claims a nurse, doctor, and psychiatrist at the San Diego County Sheriff Department’s Vista Detention Facility (“VDF”) and George F. Bailey Detention Facility (“GBDF”) acted with deliberate indifference to his serious medical needs in May and June 2014 by denying him medication which had been prescribed for him prior to his incarceration. See Compl. at 1-2, 4-7 & Attachment A ¶¶ 1-22. Plaintiff also alleges a pendent claim for “(medical) gross negligence” in violation of -1- 15cv1359 MMA (NLS) 1 California law. Id. at 3. Plaintiff seeks $35,500,000 in general and punitive damages. 2 Id. at 9. 3 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) 4 when he filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis 5 (“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 8 the United States, except an application for writ of habeas corpus, must pay a filing 9 fee. 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, if 12 the plaintiff is a prisoner and he is granted leave to proceed IFP, he remains obligated 13 to pay the full entire fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 14 1185 (9th Cir. 2015), regardless of whether his action is ultimately dismissed. See 28 15 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 16 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 17 (“PLRA”), prisoners seeking leave to proceed IFP must submit a “certified copy of 18 the trust fund account statement (or institutional equivalent) for the . . . six-month 19 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 20 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust 21 account statement, the Court assesses an initial payment of 20% of (a) the average 22 monthly deposits in the account for the past six months, or (b) the average monthly 23 balance in the account for the past six months, whichever is greater, unless the 24 prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 25 institution having custody of the prisoner then collects subsequent payments, assessed 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of 28 Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 27 -2- 15cv1359 MMA (NLS) 1 at 20% of the preceding month’s income, in any month in which the prisoner’s 2 account exceeds $10, and forwards those payments to the Court until the entire filing 3 fee is paid. See 28 U.S.C. § 1915(b)(2). 4 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 5 account statements at CRC pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 6 3.2. Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account 7 activity, which show he has had an average monthly balance of $213.23, and average 8 monthly deposits of $314.82 to his account over the 6-month period immediately 9 preceding the filing of his Complaint, but an available balance of only $7.74 in his 10 account at the time of filing. Based on this financial information, the Court GRANTS 11 Plaintiff’s Motion to Proceed IFP (Doc. No. 2) and assesses an initial partial filing fee 12 of $62.96 pursuant to 28 U.S.C. § 1915(b)(1). 13 However, the Court will direct the Secretary of the California Department of 14 Corrections and Rehabilitation (“CDCR”), or his designee, to collect this initial fee 15 only if sufficient funds in Plaintiff’s account are available at the time this Order is 16 executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner 17 be prohibited from bringing a civil action or appealing a civil action or criminal 18 judgment for the reason that the prisoner has no assets and no means by which to pay 19 the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 20 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case 21 based solely on a “failure to pay . . . due to the lack of funds available to him when 22 payment is ordered.”). The remaining balance of the $350 total fee owed in this case 23 must be collected and forwarded to the Clerk of the Court pursuant to the installment 24 payment provisions set out in 28 U.S.C. § 1915(b)(1). 25 II. Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A 26 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, 27 the PLRA also requires the Court to review complaints filed by all persons proceeding 28 IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] -3- 15cv1359 MMA (NLS) 1 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or 2 the terms or conditions of parole, probation, pretrial release, or diversionary program,” 3 “as soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). 4 Under these statutes, the Court must sua sponte dismiss any complaint, or any portion 5 of a complaint, which is frivolous, malicious, fails to state a claim, or seeks damages 6 from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); 7 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); 8 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 9 1915A(b)). 10 All complaints must contain “a short and plain statement of the claim showing 11 that the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual 12 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 13 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 14 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 15 (2007)). “Determining whether a complaint states a plausible claim for relief [is] . . . a 16 context-specific task that requires the reviewing court to draw on its judicial 17 experience and common sense.” Id. The “mere possibility of misconduct” falls short 18 of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 19 F.3d 962, 969 (9th Cir. 2009). 20 “When there are well-pleaded factual allegations, a court should assume their 21 veracity, and then determine whether they plausibly give rise to an entitlement to 22 relief.” Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 23 2000) (“[W]hen determining whether a complaint states a claim, a court must accept 24 as true all allegations of material fact and must construe those facts in the light most 25 favorable to the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 26 1998) (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil 27 Procedure 12(b)(6)”). 28 -4- 15cv1359 MMA (NLS) 1 However, while the court “ha[s] an obligation where the petitioner is pro se, 2 particularly in civil rights cases, to construe the pleadings liberally and to afford the 3 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 4 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 5 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 6 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 7 As currently pled, the Court finds Plaintiff’s Complaint contains inadequate 8 medical care claims sufficient to survive the “low threshold” for proceeding past the 9 sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).2 See 10 Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012); Estelle v. Gamble, 429 U.S. 11 97, 103 (1976) (prison officials may be held liable under the Eighth Amendment if 12 they act with deliberate indifference to serious medical needs); id. at 104-05 13 (deliberate indifference may be shown if prison officials “intentionally deny[] or 14 delay[] access to medical care or intentionally interfer[e] with the treatment once 15 prescribed.”); Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1241-44 (9th Cir. 16 2010) (applying Estelle’s Eighth Amendment deliberate indifference standard to 17 inadequate medical care claims alleged to violate a pretrial detainees’ due process 18 rights). 19 Accordingly, the Court will direct the U.S. Marshal to effect service upon 20 Defendants3 on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court 21 2 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 23 defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 24 3 Plaintiff must, of course, identify the Defendant he lists only as John Doe, and whom he currently describes as a “Psychiatrist MD at S.D. County Jail,” see Compl. at 25 2, by his true name and substitute that individual person in place of John Doe by 26 amending his Complaint to identify that party before the United States Marshal will be ordered to execute service upon him. See Aviles v. Village of Bedford Park, 160 F.R.D. 27 565, 567 (1995) (Doe defendants must be identified and served within 120 days of the commencement of the action against them); FED. R. CIV. P. 15(c)(1)(C) & 4(m). Generally, Doe pleading is disfavored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 28 1980). And when the plaintiff proceeds IFP, it is in most instances impossible for the 22 -5- 15cv1359 MMA (NLS) 1 shall issue and serve all process, and perform all duties in [IFP] cases.”); FED.R.CIV.P. 2 4(c)(3) (“[T]he court may order that service be made by a United States marshal or 3 deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 4 U.S.C. § 1915.”). 5 III. Conclusion and Orders 6 Good cause appearing, the Court: 7 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. 8 § 1915(a) (Doc. No. 2). 9 2. DIRECTS the Secretary of the CDCR, or his designee, to collect the 10 $62.96 initial filing fee assessed by this Order from Plaintiff’s prison trust account, 11 and forward the remaining balance of the full $350.00 owed by collecting monthly 12 payments from Plaintiff’s account in an amount equal to twenty percent (20%) of the 13 preceding month’s income to the Clerk of the Court each time the amount in 14 Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 15 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 16 ASSIGNED TO THIS ACTION. 17 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeffrey 18 A. Beard, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 19 4. ORDERS the U.S. Marshal to serve a copy of the Complaint and 20 summons upon Defendants as directed by Plaintiff on the USM Form 285 provided to 21 him. All costs of that service will be advanced by the United States. See 28 U.S.C. 22 § 1915(d); FED. R. CIV. P. 4(c)(3). 23 24 United States Marshal to serve a summons and complaint upon a party identified only as a Doe. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (in order to properly 25 effect service under Rule 4 in an IFP case, the plaintiff is required to “furnish the information necessary to identify the defendant.”). However, the Court will not dismiss 26 Plaintiff’s claims against John Doe at this time because where the identity of an alleged party is not known prior to filing of an action, Ninth Circuit authority permits plaintiff 27 the opportunity to pursue appropriate discovery to identify the unknown Doe, unless it is clear that discovery would not uncover his identity, or that his Complaint should be 28 dismissed for other reasons. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie, 629 F.2d at 642). -6- 15cv1359 MMA (NLS) 1 5. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint 2 (Doc. No. 1) upon Defendants and forward it to Plaintiff along with blank U.S. 3 Marshal Form 285 for each Defendant. In addition, the Clerk will provide Plaintiff 4 with a certified copy of this Order, a certified copy of his Complaint (ECF Doc. No. 5 1), and the summons so that he may serve Defendants. Upon receipt of this “IFP 6 Package,” Plaintiff must complete the Form 285s as completely and accurately as 7 possible, and return them to the United States Marshal according to the instructions 8 the Clerk provides in the letter accompanying his IFP package. 9 6. ORDERS Defendants to reply to Plaintiff’s Complaint within the time 10 provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42 11 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the 12 right to reply to any action brought by a prisoner confined in any jail, prison, or other 13 correctional facility under section 1983,” once the Court has conducted its sua sponte 14 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a 15 preliminary determination based on the face on the pleading alone that Plaintiff has a 16 “reasonable opportunity to prevail on the merits,” the defendant is required to 17 respond). 18 7. ORDERS Plaintiff to serve upon Defendants or, if an appearance has 19 been entered by counsel, upon Defendants’ counsel, a copy of every further pleading 20 or other document he wishes the Court to consider. Plaintiff must include with the 21 original paper to be filed with the Clerk of the Court, a certificate stating the manner 22 in which a true and correct copy of the document was served on Defendants, or 23 counsel for Defendants, and the date of that service. Any paper received by the Court 24 which has not been properly filed with the Clerk, or which fails to include a 25 Certificate of Service, may be disregarded. 26 IT IS SO ORDERED. 27 DATED: September 8, 2015 28 ______________________________________ HON. MICHAEL M. ANELLO United States District Judge -7- 15cv1359 MMA (NLS)

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