Roberts v. Hensley et al, No. 3:2015cv01871 - Document 8 (S.D. Cal. 2016)
Court Description: ORDER granting plaintiff's 7 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 fili ng 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). (Order electronically transmitted to Secretary of CDCR). Signed by Judge Larry Alan Burns on 3/9/16. (All non-registered users served via U.S. Mail Service)(IFP package prepared)(kas)
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Roberts v. Hensley et al Doc. 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 TONY ROBERTS, CDCR #C-95215, Civil No. Plaintiff, 13 vs. 16 17 AND S. HENSLEY, et al., 18 19 Defendants. 20 ORDER: 1) GRANTING PLAINTIFF’S RENEWED MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) [ECF Doc. No. 7] 14 15 15cv1871 LAB (BLM) 21 2) 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) 22 Tony Roberts (“Plaintiff”), currently incarcerated at Richard J. Donovan 23 24 Correctional Facility (“RJD”), in San Diego, California, and proceeding pro se, filed 25 this action alleging deliberate indifference to his medical needs in violation of the 26 Eighth Amendment and pursuant to 42 U.S.C. § 1983 on August 21, 2015. See 27 Compl. at 34, ECF Doc. No. 1. 28 / / / I:\Everyone\_EFILE-PROSE\LAB\15cv1871-grt-IFP&serve.wpd -1- 15cv1871 Dockets.Justia.com 1 I. Procedural Background 2 Plaintiff did not prepay the civil filing fees required by 28 U.S.C. § 1914(a) at 3 the time of filing. And on September 8, 2015, the Court denied Plaintiff’s Motion to 4 Proceed In Forma Pauperis (“IFP”), but granted him 21 days in which to either pay 5 the full fee, or fix his IFP application. See ECF Doc. No. 3. Plaintiff failed to timely 6 comply; therefore, on December 7, 2015, the Court dismissed his case, without 7 prejudice, for failing to prosecute. See ECF Doc. No. 4. 8 Approximately one week later, the Court received Plaintiff’s renewed IFP 9 Motion, which was post-marked on December 8, 2015, but signed by Plaintiff on 10 November 12, 2015–several weeks before the Court entered its December 7, 2015 11 Order dismissing his case. Because Plaintiff is proceeding without counsel, dependent 12 on prison officials to process his legal mail, and entitled to the “mailbox rule,” see 13 Houston v. Lack, 487 U.S. 266, 270-72 (1988) (deeming notice of appeal to be “filed” 14 when prisoner delivers it to prison authorities for forwarding to the district court); 15 Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (“Houston mailbox rule 16 applies to § 1983 suits filed by pro se prisoners.”), the Court accepted Plaintiff’s 17 renewed Motion to Proceed IFP (ECF Doc. No. 7), and re-opened his case. 18 II. Plaintiff’s Renewed Motion to Proceed IFP 19 All parties instituting any civil action, suit or proceeding in a district court of 20 the United States, except an application for writ of habeas corpus, must pay a filing 21 fee of $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s 22 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 23 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 24 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is 25 granted leave to proceed IFP remains obligated to pay the entire fee in “increments” 26 27 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. 1 I:\Everyone\_EFILE-PROSE\LAB\15cv1871-grt-IFP&serve.wpd -2- 15cv1871 1 or “installments,” Bruce v. Samuels, __ S. Ct. __, 2016 WL 112684 at *3 (U.S. Jan. 2 12, 2016) (No. 14-844); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 3 and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 4 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 5 6 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of 7 [his] trust fund account statement (or institutional equivalent) for . . . the six-month 8 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 9 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust 10 account statement, the Court assesses an initial payment of 20% of (a) the average 11 monthly deposits in the account for the past six months, or (b) the average monthly 12 balance in the account for the past six months, whichever is greater, unless the 13 prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 14 institution having custody of the prisoner then collects subsequent payments, assessed 15 at 20% of the preceding month’s income, in any month in which his account exceeds 16 $10, and forwards those payments to the Court until the entire filing fee is paid. See 17 28 U.S.C. § 1915(b)(2). In support of his renewed IFP Motion, Plaintiff has submitted a certified copy 18 19 of his trust account statement, verified by an accounting officer at RJD, pursuant to 20 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. See ECF Doc. No. 7 at 5-7; 21 Andrews, 398 F.3d at 1119. Plaintiff’s statement shows he has had no deposits, has 22 carried no balance during the 6-month period preceding the filing of this action, and 23 had no available money on the books at RJD the time of filing. See 28 U.S.C. 24 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from 25 bringing a civil action or appealing a civil action or criminal judgment for the reason 26 that the prisoner has no assets and no means by which to pay the initial partial filing 27 fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety28 / / / I:\Everyone\_EFILE-PROSE\LAB\15cv1871-grt-IFP&serve.wpd -3- 15cv1871 1 valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay 2 . . . due to the lack of funds available to him when payment is ordered.”). 3 Therefore, the Court GRANTS Plaintiff’s Renewed Motion to Proceed IFP 4 (ECF Doc. No. 7), and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). 5 However, the entire $350 balance of the filing fees due for this case must be collected 6 by the California Department of Corrections and Rehabilitation (“CDCR”) and 7 forwarded to the Clerk of the Court pursuant to the installment payment provisions 8 set forth in 28 U.S.C. § 1915(b)(1). 9 III. Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A 10 A. 11 Notwithstanding Plaintiff’s IFP status or the payment of any filing fees, the Standard of Review 12 PLRA also requires the Court to review complaints filed by all persons proceeding 13 IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] 14 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or 15 the terms or conditions of parole, probation, pretrial release, or diversionary 16 program,” “as soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 17 1915A(b). Under these statutes, the Court must sua sponte dismiss any complaint, or 18 any portion of a complaint, which is frivolous, malicious, fails to state a claim, or 19 seeks damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 20 1915A(b); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 21 (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 22 28 U.S.C. § 1915A(b)). 23 All complaints must contain “a short and plain statement of the claim showing 24 that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual 25 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 26 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 27 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 28 (2007)). “Determining whether a complaint states a plausible claim for relief [is] . . . a I:\Everyone\_EFILE-PROSE\LAB\15cv1871-grt-IFP&serve.wpd -4- 15cv1871 1 context-specific task that requires the reviewing court to draw on its judicial 2 experience and common sense.” Id. The “mere possibility of misconduct” falls short 3 of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 4 F.3d 962, 969 (9th Cir. 2009). “When there are well-pleaded factual allegations, a court should assume their 5 6 veracity, and then determine whether they plausibly give rise to an entitlement to 7 relief.” Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 8 2000) (“[W]hen determining whether a complaint states a claim, a court must accept 9 as true all allegations of material fact and must construe those facts in the light most 10 favorable to the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 11 1998) (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil 12 Procedure 12(b)(6)”). However, while the court “ha[s] an obligation where the petitioner is pro se, 13 14 particularly in civil rights cases, to construe the pleadings liberally and to afford the 15 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 16 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 17 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 18 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 19 B. 20 In his Complaint, Plaintiff contends Defendants, all alleged to be dental Plaintiff’s Claims 21 officials employed at California Men’s Colony (“CMC”) and RJD, knew he had 22 serious dental needs, including four cavities as early as April 2011, but left his needs 23 untreated “for approximately 45 months or more.” See Compl. at 26, 31 ¶¶ 46, 63. 24 Plaintiff claims that as a result, he developed a total of twenty-seven cavities, 25 gingivitis, toothaches, headaches, mouth lesions, a broken tooth, bacterial gum 26 infections, and periodontal disease that “expos[es him] to a serious risk for heart 27 disease.” Id. at 23, 24, 26, 28, 31 ¶¶ 32, 36-40, 46-47, 51, 63. 28 / / / I:\Everyone\_EFILE-PROSE\LAB\15cv1871-grt-IFP&serve.wpd -5- 15cv1871 1 As currently pled, the Court finds Plaintiff’s Complaint contains inadequate 2 medical care claims sufficient to overcome the “low threshold” for surviving the 3 initial sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).2 See 4 Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012); see also Peralta v. Dillard, 5 744 F.3d 1076, 1086 (9th Cir. 2013) (en banc), cert denied, 135 S. Ct. 946 (U.S. Jan. 6 12, 2015) (No. 14-328) (finding claims of “severe pain, infected teeth, cavities and 7 bleeding gums,” were sufficient to satisfy Eighth Amendment’s requirement that 8 prisoner demonstrate a “serious” medical need); Hunt v. Dental Dep’t, 865 F.2d 198, 9 200-01 (9th Cir. 1989) (finding officials’ awareness of prisoner’s “bleeding gums, 10 breaking teeth and his inability to eat properly,” coupled with their “fail[ure] to take 11 any action to relieve his pain or to prescribe a soft food diet until new dentures could 12 be fitted” for a period of three months was “sufficient to state a claim of deliberate 13 medical indifference under section 1983.”). Accordingly, the Court will direct the U.S. Marshal to effect service of 14 15 Plaintiff’s Complaint and the Court–issued summons on his behalf. See 28 U.S.C. 16 § 1915(d) (“The officers of the court shall issue and serve all process, and perform all 17 duties in [IFP] cases.”); FED. R. CIV. P. 4(c)(3) (“[T]he court may order that service 18 be made by a United States marshal or deputy marshal . . . if the plaintiff is authorized 19 to proceed in forma pauperis under 28 U.S.C. § 1915.”). 20 IV. Conclusion and Orders 21 Good cause appearing, the Court: 22 1. GRANTS Plaintiff’s Renewed Motion to Proceed IFP pursuant to 28 23 U.S.C. § 1915(a) (ECF Doc. No. 7). 24 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 25 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 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\15cv1871-grt-IFP&serve.wpd -6- 15cv1871 1 monthly payments from his account in an amount equal to twenty percent (20%) of 2 the preceding month’s income and forwarding those payments to the Clerk of the 3 Court each time the amount in the account exceeds $10 pursuant to 28 U.S.C. 4 § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE 5 NAME AND NUMBER ASSIGNED TO THIS ACTION. 6 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott 7 Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 8 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint 9 (ECF Doc. No. 1) upon Defendants and forward it to Plaintiff along with blank U.S. 10 Marshal Form 285 for each Defendant. In addition, the Clerk will provide Plaintiff 11 with a certified copy of this Order, a certified copy of his Complaint (ECF Doc. No. 12 1), and the summons so that he may serve each Defendant named in the Complaint.3 13 Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s as 14 completely and accurately as possible for each named Defendant, and return them to 15 the United States Marshal according to the instructions the Clerk provides in the letter 16 accompanying his IFP package. 17 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and 18 summons upon Defendants as directed by Plaintiff on the USM Form 285s provided 19 3 Plaintiff must, of course, identify the through 20 20,” and whom he currently describes only asDefendants he lists only as “Doe 1manner” individuals “responsible in some Compl. 21 for the injuries he has sustained, seethe Doesat 18 ¶ 17, by their true names and substitute those individual persons in place of by amending his Complaint to identify each party before the United States Marshal will be ordered to execute service upon them. See 22 Aviles v. Village of Bedford Park, 160 F.R.D. 565, 567 (1995) (Doe defendants must be and served within [90] days of the commencement of 23 identifiedIV. P. 15(c)(1)(C) & 4(m). Generally, Doe pleading isthe action against them); FED. R. C disfavored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). And when the plaintiff proceeds IFP, it is 24 in most instances impossible for the United States Marshal to serve a party identified only as a Doe. Sumner, 1415, 1422 (9th order to 25 properly effect See Walker v. Rule 4 in14 F.3dcase, the plaintiff Cir. 1994) (in “furnish service under an IFP is required to to identify defendant.”). the Court will 26 the information necessary against Doethe through 20 at However, because where not dismiss Plaintiff’s claims 1 this time the identity of an alleged party is not known prior to filing of an action, Ninth Circuit 27 authority permits plaintiff the opportunity to pursue appropriate discovery to identify the it identity, or 28 unknown Does, unlessbe is clear that discovery would not uncover their Thompson, that his Complaint should dismissed for other reasons. See Wakefield v. 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie, 629 F.2d at 642). I:\Everyone\_EFILE-PROSE\LAB\15cv1871-grt-IFP&serve.wpd -7- 15cv1871 1 to him. All costs of that service will be advanced by the United States. See 28 U.S.C. 2 § 1915(d); FED. R. CIV. P. 4(c)(3). 3 6. ORDERS Defendants to reply to Plaintiff’s Complaint within the time 4 provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 5 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive 6 the right to reply to any action brought by a prisoner confined in any jail, prison, or 7 other correctional facility under section 1983,” once the Court has conducted its sua 8 sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has 9 made a preliminary determination based on the face on the pleading alone that 10 Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is 11 required to respond). 12 7. ORDERS Plaintiff to serve upon Defendants or, if an appearance has 13 been entered by counsel, upon Defendants’ counsel, a copy of every further pleading 14 or other document he wishes the Court to consider. Plaintiff must include with the 15 original paper to be filed with the Clerk of the Court, a certificate stating the manner 16 in which a true and correct copy of the document was served on Defendants, or 17 counsel for Defendants, and the date of that service. Any paper received by the Court 18 which has not been properly filed with the Clerk, or which fails to include a 19 Certificate of Service, may be disregarded. 20 IT IS SO ORDERED. 21 22 DATED: March 9, 2016 23 24 HONORABLE LARRY ALAN BURNS United States District Judge 25 26 27 28 I:\Everyone\_EFILE-PROSE\LAB\15cv1871-grt-IFP&serve.wpd -8- 15cv1871
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