Thomas v. Gore et al, No. 3:2018cv01929 - Document 3 (S.D. Cal. 2018)
Court Description: ORDER Granting 2 Motion for Leave to Proceed in Forma Pauperis and Directing U.S. Marshal to Effect Service of Summons and Complaint. Signed by Judge Gonzalo P. Curiel on 11/8/18. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (copy of this Order sent via U.S. Mail to Watch Commander) (dlg)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 DAMAREE RAYSHAWN THOMAS, Booking No. 18101721, 15 16 ORDER: Plaintiff, 13 14 Case No.: 3:18-cv-01929-GPC-MDD vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2] WILLIAM D. GORE, Sheriff, et al.; Defendants. AND 17 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) 18 19 20 21 22 Demaree Rayshawn Thomas (“Plaintiff”), while detained at the San Diego County 23 Sheriff Department’s Central Jail (“SDCJ”) in San Diego, California, and proceeding pro 24 se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 25 1.) Plaintiff claims the Sheriff and several SDCJ and Vista Detention Facility (“VDF”) 26 deputies failed to protect him from attack from another inmate in April 2018 while he was 27 in protective custody, refused to provide him adequate medical attention, sexually harassed 28 him, and placed him on a retaliatory disciplinary lockdown after he filed a complaint of 1 3:18-cv-01929-GPC-MDD 1 staff misconduct. (Id. at 3-5.) He seeks $2 million in general and punitive damages and 2 demands a jury trial. (Id. at 7.) 3 Plaintiff did not pay the fee required by 28 U.S.C. § 1914(a) when he filed his 4 Complaint; instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 5 to 28 U.S.C. § 1915(a) (ECF 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 $400.1 See 28 U.S.C. § 1914(a). The 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 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 12 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 13 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 14 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 15 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 16 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 17 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 18 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6- 19 month 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 account 21 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 22 in the account for the past six months, or (b) the average monthly balance in the account 23 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 24 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner 25 26 1 27 28 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-01929-GPC-MDD 1 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 2 any month in which his account exceeds $10, and forwards those payments to the Court 3 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. 4 In support of his IFP Motion, Plaintiff has submitted a copy of his San Diego County 5 Sheriff’s Department Inmate Trust Account Activity and a prison certificate attesting as to 6 his deposits and balances for the 6-month period preceding the filing of his Complaint. See 7 ECF No. 2 at 4-5; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 8 1119. These statements show Plaintiff had an average monthly deposit of $6.67 to his 9 account, carried an approximate average monthly balance of $.04, he had only a $.24 10 available balance to his credit at the time of filing. See ECF No. 2 at 4. 11 Based on this accounting, the Court assesses an initial partial filing fee of $1.33 12 pursuant to 28 U.S.C. § 1915(a)(1) and (b)(1), but notes Plaintiff may have insufficient 13 funds with which to pay that initial fee at the time this Order issues. See 28 U.S.C. 14 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 15 civil action or appealing a civil action or criminal judgment for the reason that the prisoner 16 has no assets and no means by which to pay the initial partial filing fee.”); Bruce, 136 S. 17 Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety- 18 valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ... 19 due to the lack of funds available to him when payment is ordered.”). 20 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), 21 declines to exact the initial filing fee assessed by this Order because his trust account 22 statements suggest he may have “no means to pay it,” Bruce, 136 S. Ct. at 629, and instead 23 directs the Watch Commander at the SDCJ, or his designee, to collect the entire $350 24 balance of the filing fee required by 28 U.S.C. § 1914 and to forward all payments to the 25 Clerk of the Court pursuant to the installment provisions set forth in 28 U.S.C. 26 § 1915(b)(1). 27 /// 28 /// 3 3:18-cv-01929-GPC-MDD 1 II. Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A 2 A. 3 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 4 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, 5 the Court must review and sua sponte dismiss an IFP complaint, and any complaint filed 6 by a prisoner seeking redress from a governmental entity, or officer or employee of a 7 governmental entity, which is frivolous, malicious, fails to state a claim, or seeks damages 8 from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 9 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 10 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to 11 ensure that the targets of frivolous or malicious suits need not bear the expense of 12 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler 13 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). Standard of Review 14 All complaints must contain “a short and plain statement of the claim showing that 15 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are not 16 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 18 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a 19 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 20 reviewing court to draw on its judicial experience and common sense.” Id. The “mere 21 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 22 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 23 “The standard for determining whether a plaintiff has failed to state a claim upon 24 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 25 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 26 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 27 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 28 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 4 3:18-cv-01929-GPC-MDD 1 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 2 as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal 3 quotation marks omitted); Wilhelm, 680 F.3d at 1121. 4 “When there are well-pleaded factual allegations, a court should assume their 5 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 6 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 7 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 8 allegations of material fact and must construe those facts in the light most favorable to the 9 plaintiff.”). However, while the court “ha[s] an obligation where the petitioner is pro se, 10 particularly in civil rights cases, to construe the pleadings liberally and to afford the 11 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 12 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply 13 essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the 14 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Plaintiff’s Complaint 15 B. 16 Plaintiff claims he is a “protective custody inmate” and on April 15, 2018, while 17 under the supervision of Sheriff Gore at either the SDCJ or VDF, was attacked by another 18 “dangerous” inmate who was known to have “priors of sudden assault.” (See Compl., ECF 19 No. 1 at 3.) Plaintiff claims he was struck in the face and head, suffered a cracked lip and 20 tooth, and was “knocked out,” but Deputy Davila refused to provide him medical attention, 21 placed him on 10 days of 24 hour lockdown, and charged him with a disciplinary offense 22 even though he was the “victim.” (Id.) 23 Two months later, on June 18, 2018, Plaintiff claims he was sexually harassed by 24 Deputy Park, who had made verbal race-based sexual advances toward him on several 25 other “private occasions.” (Id. at 4.) Plaintiff claims this made him feel “cheap and unsafe,” 26 so he filed a complaint against Park that resulted in an internal affairs investigation and 27 Park’s transfer to another facility. (Id.) 28 /// 5 3:18-cv-01929-GPC-MDD 1 Finally, on July 9, 2018, Plaintiff claims he asked staff for a single cell because he 2 was “not getting along with [his] cellmate,” but Sergeant San Nicholas cuffed and escorted 3 him into a disciplinary cell instead. (Id. at 5.) After Plaintiff claimed he felt suicidal, he 4 was escorted to medical, but was not examined by medical staff, and was instead “pushed 5 back in [his] disciplinary cell with handcuffs,” and “sexually harassed” by Nicholas who 6 left him there for 30 minutes without access to a restroom. (Id.) Plaintiff claims he remained 7 in a disciplinary cell on “24 hour lockdown,” with no privileges, contact, or access to the 8 outdoors until at least July 14, 2018, which he claims was retaliatory “for all [his] pending 9 investigations.” (Id. at 5, 10.) 10 Based on these allegations, the Court finds Plaintiff’s Complaint contains factual 11 allegations sufficient to survive the “low threshold” for proceeding past the sua sponte 12 screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b) because it alleges Fourteenth 13 Amendment due process claims which are plausible on its face.2 See Wilhelm, 680 F.3d at 14 1123; Iqbal, 556 U.S. at 678; Bell v. Wolfish, 441 U.S. 520, 535 (1979) (Due Process Clause 15 of the Fourteenth Amendment prevents punishment of a pretrial detainee prior to an 16 adjudication of guilt); Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016), 17 cert. denied, 137 S. Ct. 831 (2017) (“[A] pretrial detainee who asserts a due process claim 18 for failure to protect [must] prove more than negligence but less than subjective intent— 19 something akin to reckless disregard.”); Gordon v. Cty. of Orange, 888 F.3d 1118, 1124- 20 25 (9th Cir. 2018) (inadequate medical care claims alleged by persons in pretrial custody 21 22 23 24 25 26 27 28 2 The Court presumes, for purposes of screening only, that Plaintiff was a pretrial detainee at SDCJ and VDF at the times he alleges to have been injured by Sheriff’s Department officials, and that therefore his claims arise under the Fourteenth Amendment rather than the Eighth. See Castro, 833 F.3d at 1067-68 (“Inmates who sue prison officials for injuries suffered while in custody may do so under the Eighth Amendment’s Cruel and Unusual Punishment Clause, or if not yet convicted, under the Fourteenth Amendment’s Due Process Clause.”) (citing Bell, 441 U.S. at 535). “Under both clauses, the plaintiff must show that the … officials acted with ‘deliberate indifference.’” Id. at 1068. Plaintiff is cautioned, however, that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [any individual defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 6 3:18-cv-01929-GPC-MDD 1 “must be evaluated under an objective deliberate indifference standard.”) (citing Castro, 2 833 F.3d at 1070). 3 Accordingly, the Court will direct the U.S. Marshal to effect service upon 4 Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall 5 issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 4(c)(3) 6 (“[T]he court may order that service be made by a United States marshal or deputy marshal 7 . . . if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 8 III. 9 10 11 12 Conclusion and Orders For the reasons explained, the Court: 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 2. ORDERS the Watch Commander of the SDCJ, or his designee, to collect 13 from Plaintiff’s trust account the $1.33 initial filing fee assessed, if those funds are 14 available at the time this Order is executed, and to forward whatever balance remains of 15 the full $350 owed in monthly payments in an amount equal to twenty percent (20%) of 16 the preceding month’s income to the Clerk of the Court each time the amount in Plaintiff’s 17 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE 18 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 19 ACTION. 20 21 22 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch Commander, San Diego Central Jail, 1173 Front Street, San Diego, California, 92101. 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 23 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each named 24 Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of this Order, 25 a certified copy of his Complaint and the summons so that he may serve these Defendants. 26 Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s as completely 27 and accurately as possible, include an address where each named Defendant may be found 28 and/or subject to service, and return them to the United States Marshal according to the 7 3:18-cv-01929-GPC-MDD 1 2 instructions the Clerk provides in the letter accompanying his IFP package. 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 3 upon the named Defendants as directed by Plaintiff on the USM Form 285s provided to 4 him. All costs of that service will be advanced by the United States. See 28 U.S.C. 5 § 1915(d); FED. R. CIV. P. 4(c)(3); 6 6. ORDERS Defendants, once they have been served, to reply to Plaintiff’s 7 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 8 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be 9 permitted to “waive the right to reply to any action brought by a prisoner confined in any 10 jail, prison, or other correctional facility under section 1983,” once the Court has 11 conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and 12 thus, has made a preliminary determination based on the face on the pleading alone that 13 Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is required 14 to respond); and 15 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 16 serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’ 17 counsel, a copy of every further pleading, motion, or other document submitted for the 18 Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every 19 original document he seeks to file with the Clerk of the Court, a certificate stating the 20 manner in which a true and correct copy of that document has been was served on 21 Defendants or their counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. Any 22 document received by the Court which has not been properly filed with the Clerk or which 23 fails to include a Certificate of Service upon Defendants may be disregarded. 24 25 IT IS SO ORDERED. Dated: November 8, 2018 26 27 28 8 3:18-cv-01929-GPC-MDD
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