Stapleton v. Cruz et al, No. 3:2018cv00733 - Document 7 (S.D. Cal. 2018)
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). (Order electronically transmitted to Secretary of CDCR). Signed by Judge Larry Alan Burns on 6/5/2018. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (jdt)
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Stapleton v. Cruz et al Doc. 7 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ABRAHAM STAPLETON, CDCR #P-18824, ORDER: Plaintiff, 13 14 Case No.: 3:18-cv-00733-LAB-JLB vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2] 15 16 17 18 E. CRUZ; MENDOZA; DANIEL A. PARAMO; JOHN DOE; STATE OF CALIFORNIA, 2) DISMISSING DEFENDANT STATE OF CALIFORNIA PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) AND 28 U.S.C. § 1915A(b)(1) Defendants. 19 20 AND 21 3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE UPON DEFENDANTS CRUZ, MENDOZA, AND PARAMO PURSUANT TO 28 U.S.C. § 1915(d) AND Fed. R. Civ. P. 4(c)(3) 22 23 24 25 26 27 ABRAHAM STAPLETON (“Plaintiff”), proceeding pro se and while incarcerated 28 at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, has filed a 1 3:18-cv-00733-LAB-JLB Dockets.Justia.com 1 civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1), and a Motion to 2 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 3 Background 4 Plaintiff, who is white, claims three RJD Correctional Officers (“C/Os”) (Cruz, 5 Mendoza, and Doe) violated his Eighth Amendment rights on September 2, 2016, by 6 failing to protect him from and during a racially-motivated attack by three Hispanic 7 inmates. See Compl., ECF No. 1 at 13-20. Plaintiff further claims RJD’s Warden 8 (Paramo) “knew his C/O’s actions were inappropriate,” conspired with them, and 9 “regularly participated and directed inmates to assault other inmates” who filed CDCR 10 602 Inmate Appeals “against his officers.” Id. at 16-17. Plaintiff claims to have suffered 11 permanent damage to his right eye as a result of the September 2, 2016 incident, id. at 15, 12 and seeks $500,000 in compensatory and $1 million in punitive damages. Id. at 20. 13 14 Discussion A. 15 IFP Motion All parties instituting any civil action, suit or proceeding in a district court of the 16 United States, except an application for writ of habeas corpus, must pay a filing fee of 17 $400. 1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 18 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 19 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 20 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 21 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 22 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 23 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 24 25 26 27 28 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 Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:18-cv-00733-LAB-JLB 1 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2 2002). 3 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 4 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 5 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 6 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 7 trust account statement, the Court assesses an initial payment of 20% of (a) the average 8 monthly deposits in the account for the past six months, or (b) the average monthly 9 balance in the account for the past six months, whichever is greater, unless the prisoner 10 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 11 custody of the prisoner then collects subsequent payments, assessed at 20% of the 12 preceding month’s income, in any month in which his account exceeds $10, and forwards 13 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 14 Bruce, 136 S. Ct. at 629. 15 In support of his IFP Motion, Plaintiff has submitted two prison certificates 16 authorized by RJD accounting officials attesting to his trust account activity. See ECF 17 Nos. 3, 6; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. 18 These certificates show Plaintiff had average monthly deposits of $5.87 to his account, 19 carried an average monthly balance of $5.94 over the six month period preceding the 20 filing of his Complaint, and had only $.03 on the books at the time of filing. See ECF 21 Nos. 3, 6. 22 Based on this accounting, the Court assesses Plaintiff’s initial partial filing fee to 23 be $1.18, but notes he may be “unable to pay” any initial partial filing fee pursuant to 28 24 U.S.C. § 1915(a)(1) and (b)(1) at this time. See 28 U.S.C. § 1915(b)(4) (providing that 25 “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a 26 civil action or criminal judgment for the reason that the prisoner has no assets and no 27 means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 28 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 3 3:18-cv-00733-LAB-JLB 1 dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of 2 funds available to him when payment is ordered.”). 3 Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), 4 declines to exact the $1.18 assessed initial filing fee because his prison certificate shows 5 he “has no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the 6 California Department of Corrections and Rehabilitation (“CDCR”), or his designee, to 7 collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and to 8 forward them to the Clerk of the Court pursuant to the installment payment provisions set 9 forth in 28 U.S.C. § 1915(b)(1). See id. 10 11 12 B. Screening of Complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). 13 1. 14 Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, 15 or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages 16 from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 17 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 18 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is 19 ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of 20 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting 21 Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). Standard of Review 22 “The standard for determining whether a plaintiff has failed to state a claim upon 23 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 24 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 25 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 26 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 27 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 28 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 4 3:18-cv-00733-LAB-JLB 1 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 2 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 3 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 4 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 5 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 6 relief [is] ... a context-specific task that requires the reviewing court to draw on its 7 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 8 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 9 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 10 (9th Cir. 2009). 11 2. 12 “Section 1983 creates a private right of action against individuals who, acting 42 U.S.C. § 1983 13 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 14 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 15 substantive rights, but merely provides a method for vindicating federal rights elsewhere 16 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 17 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 18 deprivation of a right secured by the Constitution and laws of the United States, and (2) 19 that the deprivation was committed by a person acting under color of state law.” Tsao v. 20 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 21 3. 22 As an initial matter, the Court finds that to the extent Plaintiff includes the “State Improper Defendant 23 of California” as a Defendant in the caption of his Complaint, his claims must be 24 dismissed sua sponte pursuant to both 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). 25 The Eleventh Amendment bars suits against a state, absent the state’s affirmative 26 waiver of its immunity or congressional abrogation of that immunity. Krainski v. Nev. ex 27 rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (“The 28 Eleventh Amendment bars suits against the State or its agencies for all types of relief, 5 3:18-cv-00733-LAB-JLB 1 absent unequivocal consent by the state.”) (internal citations omitted). The Ninth Circuit 2 has recognized that “[t]he State of California has not waived its Eleventh Amendment 3 immunity with respect to claims brought under § 1983 in federal court, and the Supreme 4 Court has held that § 1983 was not intended to abrogate a State’s Eleventh Amendment 5 immunity.” Brown v. California Dep’t of Corrections, 554 F.3d 747, 752 (9th Cir. 2009); 6 see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67, 71 (1989) (“We cannot 7 conclude that § 1983 was intended to disregard the well-established immunity of a State 8 from being sued without its consent. […] We hold that neither a State nor its officials 9 acting in their official capacities are ‘persons’ under § 1983.”); see also Hogue v. 10 California, No. 1:17-CV-00942 DAD EPG PC, 2018 WL 1605736, at *2 (E.D. Cal. Apr. 11 3, 2018) (sua sponte dismissing prisoner’s § 1983 claims against the State of California 12 based on sovereign immunity pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A). 13 Accordingly, the Court dismisses the State of California as a party to this action 14 sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) as barred by the 15 Eleventh Amendment. Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 16 4. 17 As for Plaintiff’s Eighth Amendment failure to protect allegations against the Eighth Amendment – Individual Defendants 18 remaining Defendants, however, the Court finds they are sufficiently pleaded to surpass 19 the “low threshold” set by of 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Wilhelm 680 F.3d at 20 1123; Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995) (an officer’s failure to 21 intervene and protect can violate a prisoner’s Eighth Amendment rights); United States v. 22 Williams, 842 F.3d 1143, 1153 (9th Cir. 2016) (the Eighth Amendment “requires that 23 prison officials ‘must take reasonable measures to guarantee the safety of the inmates.’”) 24 (quoting Farmer v. Brennan, 511 U.S. 825, 833, 847 (1994) (“[P]rison officials have a 25 duty [under the Eighth Amendment] ... to protect prisoners from violence at the hands of 26 other prisoners[,]” and therefore, “may be held liable … if [they] know[] that inmates 27 face a substantial risk of serious harm and disregard[] that risk by failing to take 28 reasonable measures to abate it.”). 6 3:18-cv-00733-LAB-JLB 1 Therefore, the Court will order the U.S. Marshal to effect service upon Defendants 2 Cruz, Mendoza, and Paramo on Plaintiff’s behalf.2 See 28 U.S.C. § 1915(d) (“The 3 officers of the court shall issue and serve all process, and perform all duties in [IFP] 4 cases.”); FED. R. CIV. P. 4(c)(3) (“[T]he court may order that service be made by a United 5 States marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma 6 pauperis under 28 U.S.C. § 1915.”). 7 Conclusion and Orders 8 Good cause appearing, the Court: 9 1. 10 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 11 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 12 Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly 13 payments from his account in an amount equal to twenty percent (20%) of the preceding 14 month’s income and forwarding those payments to the Clerk of the Court each time the 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiff makes the same allegations as to Defendant Correctional Officer John Doe as he does as to C/O’s Cruz and Mendoza. See Compl., ECF No. 1 at 15. However, he will first need to name this party, and amend his Complaint to identify the Correctional Officer currently identified only as “John Doe” before the United States Marshal will be ordered and/or able to execute service upon the Doe defendant. See Aviles v. Village of Bedford Park, 160 F.R.D. 565, 567 (1995) (Doe defendants must be identified and served within [90] 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. 1980), and in most instances impossible for the United States Marshal to serve a party identified only as a Doe. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (in order to properly 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 John Doe as a Defendant 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 the opportunity to pursue appropriate discovery to identify the unknown Doe, unless it is clear that discovery would not uncover his identity, or his pleading requires dismissal for other reasons. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie, 629 F.2d at 642). 7 3:18-cv-00733-LAB-JLB 1 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 2 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 3 ASSIGNED TO THIS ACTION. 4 5 6 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 4. DISMISSES Defendant State of California sua sponte and DIRECTS the 7 Clerk to terminate the State of California as a party to this action pursuant to 28 U.S.C. 8 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 9 5. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 10 No. 1) upon Defendants Cruz, Mendoza, and Paramo and forward it to Plaintiff along 11 with a blank U.S. Marshal Form 285 for each of these Defendants. In addition, the Clerk 12 will provide Plaintiff with a certified copy of this Order, a certified copy of his 13 Complaint, and the summons so that he may serve them upon these Defendants. Upon 14 receipt of this “IFP Package,” Plaintiff must complete the Form 285s as completely and 15 accurately as possible, include an address where each Defendant may be served, see S.D. 16 CAL. CIVLR 4.1.c, and return them to the United States Marshal according to the 17 instructions the Clerk provides in the letter accompanying his IFP package. 18 6. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 19 upon Defendants Cruz, Mendoza, and Paramo as directed by Plaintiff on the USM Form 20 285s provided to him. All costs of that service will be advanced by the United States. See 21 28 U.S.C. § 1915(d); FED. R. CIV. P. 4(c)(3). 22 7. ORDERS Defendants Cruz, Mendoza, and Paramo, once served, to reply to 23 Plaintiff’s Complaint within the time provided by the applicable provisions of Federal 24 Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may 25 occasionally be permitted to “waive the right to reply to any action brought by a prisoner 26 confined in any jail, prison, or other correctional facility under section 1983,” once the 27 Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and 28 § 1915A(b), and thus, has made a preliminary determination based on the face on the 8 3:18-cv-00733-LAB-JLB 1 pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,” 2 defendant is required to respond). 3 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 4 serve upon Defendants Cruz, Mendoza, and Paramo, or, if appearance has been entered 5 by counsel, upon Defendants’ counsel, a copy of every further pleading, motion, or other 6 document submitted for the Court’s consideration pursuant to FED. R. CIV. P. 5(b). 7 Plaintiff must include with every original document he seeks to file with the Clerk of the 8 Court, a certificate stating the manner in which a true and correct copy of that document 9 has been was served on Defendants or their counsel, and the date of that service. See S.D. 10 CAL. CIVLR 5.2. Any document received by the Court which has not been properly filed 11 with the Clerk, or which fails to include a Certificate of Service upon the Defendants, 12 may be disregarded. 13 IT IS SO ORDERED. 14 15 16 17 Dated: June 5, 2018 Hon. Larry Alan Burns United States District Judge 18 19 20 21 22 23 24 25 26 27 28 9 3:18-cv-00733-LAB-JLB
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