Carroll v. C/O Miller et al, No. 3:2018cv01264 - Document 5 (S.D. Cal. 2018)
Court Description: ORDER granting Plaintiff's 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 p ayments 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). The Clerk is directed to issue a summons as to Plaintiff's Complaint. US Marshal ordered to effect service of the Complaint and summons upon Defendnats. Signed by Judge Cynthia Bashant on 7/16/2018. (Order electronically transmitted to Secretary of CDCR) (IFP Package prepared and forwarded) (All non-registered users served via U.S. Mail Service) (jah)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 ABONILICO CARROLL, CDCR #AX-2101, Case No. 18-cv-1264-BAS-PCL ORDER: Plaintiff, vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [Doc. No. 2]; AND 14 15 16 C/O MILLER; W/O WRIGHT; CHIEF MEDICAL OFFICER 17 2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE PURSUANT TO 28 U.S.C. § 1915(d) AND Fed. R. Civ. P. 4(c)(3) Defendants. 18 19 20 21 22 23 Abonilico Carroll (“Plaintiff”) is currently incarcerated at Richard J. Donovan 24 Correctional Facility (“RJD”) in San Diego, California. He is proceeding pro se, and has 25 filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1, Compl.) Plaintiff 26 did not prepay the $400 civil filing fee required by 28 U.S.C. § 1914(a) at the time of filing. 27 Instead, he has filed a motion to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. 28 § 1915(a). (ECF No. 2.) 1 18cv1264 1 I. MOTION TO PROCEED IN FORMA PAUPERIS 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 9 Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 10 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 11 § 1915(b)(1) & (2). 12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 14 6-month period immediately preceding the filing of the complaint.” 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly balance 18 in the account for the past six months, whichever is greater, unless the prisoner has no 19 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 20 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 21 month’s income, in any month in which his account exceeds $10, and forwards those 22 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 23 136 S. Ct. at 629. 28 U.S.C. 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. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 18cv1264 1 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 2 Statement Report and a Prison Certificate signed by a RJD accounting officer attesting to 3 his balances and deposits over the 6-month period preceding the filing of his Complaint. 4 (See ECF No. 2 at 4–7); see also 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2; Andrews, 5 398 F.3d at 1119. These statements show that Plaintiff has had almost no money in his 6 trust account for the 6-months preceding the filing of this action, and that he had a zero 7 balance at the time of filing. (See ECF No. 4 at 4, 7); see also 28 U.S.C. § 1915(b)(4) 8 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action or 9 appealing a civil action or criminal judgment for the reason that the prisoner has no assets 10 and no means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630. 11 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), 12 declines to “exact” any initial filing fee because his trust account statement shows he “has 13 no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California 14 Department of Corrections and Rehabilitation (“CDCR”) to collect the entire $350 balance 15 of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court 16 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 17 II. SCREENING OF COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915(E)(2)(B) 18 AND 1915A(B) 19 A. 20 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 21 answer screening which the Court conducts sua sponte pursuant to 28 U.S.C. § 1915(e)(2) 22 and § 1915A(b). Under these statutes, the Court must dismiss a prisoner’s IFP complaint, 23 or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages 24 from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 25 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 26 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is 27 ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of 28 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler Standard of Review 3 18cv1264 1 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 2 “The standard for determining whether a plaintiff has failed to state a claim upon 3 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 4 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 5 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 6 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 7 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 8 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 9 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 10 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. Detailed 11 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 12 action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 13 “Determining whether a complaint states a plausible claim for relief [is] . . . a context- 14 specific task that requires the reviewing court to draw on its judicial experience and 15 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant- 16 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 17 see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Plaintiff’s Allegations 18 B. 19 In August 2018, Plaintiff was “discharged from U.C.S.D. Hospital after major 20 surgery (urethral reconstruction)” back to RJD. (ECF No. 1 at 3.) As a result of this 21 surgery, Plaintiff could not climb any stairs. Id. When he informed Defendants Miller and 22 Wright that he was unable to walk up stairs to his cell, he claims Defendants “threatened” 23 him by telling him he would be housed in administrative segregation if he did not climb 24 the stairs. Id. Plaintiff was “helped” by another inmate “to get to his cell safely.” Id. 25 However, days later when Plaintiff “had to get his medicine,” and this inmate was not 26 available to help him, Plaintiff “fell down a flight of stairs” injuring his “neck, back, and 27 head.” Id. Plaintiff was “transported to Central Health” by ambulance. Id. Plaintiff was 28 then issued a “lower tier, lower bunk chrono,” along with a “wheelchair, cane, and back 4 18cv1264 1 brace.” Id. Plaintiff contends Defendants acted with “deliberate indifference” to his 2 medical needs in violation of the Eighth Amendment by failing to accommodate his 3 medical needs. 4 As currently pleaded, the Court finds that Plaintiff’s Complaint contains factual 5 content sufficient to survive the “low threshold” for proceeding past the sua sponte 6 screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), because it alleges Eighth 7 Amendment claims which are plausible on its face. See Wilhelm, 680 F.3d at 1123; Iqbal, 8 556 U.S. at 678; Estelle v. Gamble, 429 U.S. 97, 104 (1976) (prison officials’ deliberate 9 indifference to an inmate’s serious medical needs constitutes cruel and unusual punishment 10 in violation of the Eighth Amendment). Accordingly, the Court will direct the U.S. 11 Marshal to effect service upon the named Defendants on Plaintiff’s behalf. See 28 U.S.C. 12 § 1915(d) (“The officers of the court shall issue and serve all process, and perform all duties 13 in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by 14 a United States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in 15 forma pauperis under 28 U.S.C. § 1915.”). 16 III. CONCLUSION & ORDER 17 For the foregoing reasons, the Court: 18 1. 19 20 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2); 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 21 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 22 payments from his account in an amount equal to twenty percent (20%) of the preceding 23 month’s income and forwarding those payments to the Clerk of the Court each time the 24 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 25 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 26 THIS ACTION; 27 28 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; 5 18cv1264 1 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 2 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each named 3 Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of this Order, 4 a certified copy of his Complaint and the summons so that he may serve the named 5 Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s 6 as completely and accurately as possible, include an address where each named Defendant 7 may be found and/or subject to service pursuant to S.D. Cal. Civ. L.R. 4.1c. and return 8 them to the United States Marshal according to the instructions the Clerk provides in the 9 letter accompanying his IFP package; 10 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 11 upon the named Defendants as directed by Plaintiff on the USM Form 285s provided to 12 him. All costs of that service will be advanced by the United States. See 28 U.S.C. 13 § 1915(d); Fed. R. Civ. P. 4(c)(3); 14 6. ORDERS the named and served Defendants to reply to Plaintiff’s Complaint 15 within the time provided by the applicable provisions of Federal Rule of Civil Procedure 16 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to 17 “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or 18 other correctional facility under section 1983,” once the Court has conducted its sua sponte 19 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a 20 preliminary determination based on the face on the pleading alone that Plaintiff has a 21 “reasonable opportunity to prevail on the merits,” the defendant is required to respond); 22 and, 23 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 24 serve upon the named Defendants, or, if appearance has been entered by counsel, upon 25 Defendants’ counsel, a copy of every further pleading, motion, or other document 26 submitted for the Court’s consideration pursuant to Federal Rule of Civil Procedure 5(b). 27 Plaintiff must include with every original document he seeks to file with the Clerk of the 28 Court, a certificate stating the manner in which a true and correct copy of that document 6 18cv1264 1 has been was served on Defendants or their counsel, and the date of that service. See S.D. 2 Cal. Civ. L.R. 5.2. Any document received by the Court which has not been properly filed 3 with the Clerk or which fails to include a Certificate of Service upon Defendants may be 4 disregarded. 5 6 IT IS SO ORDERED. DATED: July 16, 2018 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 18cv1264
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