Erazo v. Chicken of the Sea INTL., No. 3:2018cv02731 - Document 3 (S.D. Cal. 2019)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis. US Marshal shall effect service of complaint. The Commissioner of the WCDOC,, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fe e 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). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.. Signed by Judge Barry Ted Moskowitz on 3/18/2019. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (sjm)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JOSE ERAZO, JID #157195, Case No.: 3:18-cv-02731-BTM-LL 13 14 15 16 ORDER: Plaintiff, vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) [ECF No. 2] CHICKEN OF THE SEA INTL., Defendant. 17 AND 18 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) 19 20 21 22 23 JOSE ERAZO (“Plaintiff”), a prisoner in custody of the Westchester County 24 Department of Corrections (“WCDOC”) in Valhalla, New York, and proceeding pro se, 25 filed a civil complaint in this Court on December 3, 2018 against Chicken of the Sea Intl. 26 (“Defendant”). (See Compl., ECF No. 1.) Plaintiff alleges diversity jurisdiction pursuant 27 to 28 U.S.C. § 1332(a) because he and Defendant are citizens of different states, and the 28 amount in controversy exceeds $75,000. (Id. at 1-2.) 1 3:18-cv-02731-BTM-LL 1 Plaintiff claims to have sustained injuries to his mouth on November 27, 2018, 2 after he opened and consumed a “Chicken of the Sea” mackerel filet sealed and packaged 3 in soybean oil which contained a piece of metal. (Id. at 2-3.) He seeks $100,000 in 4 compensatory and $500,000 in punitive damages, based on state law claims of strict 5 liability, gross negligence, and intentional infliction of emotional distress. (Id. at 3-6.) 6 Plaintiff did not prepay the filing fee required by 28 U.S.C. § 1914(a) to commence 7 a civil action at the time he filed suit; instead, he has filed a Motion to Proceed In Forma 8 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2.) 9 I. 10 Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 11 United States, except an application for writ of habeas corpus, must pay a filing fee of 12 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 13 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 14 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 15 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 16 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 17 Bruce v. Samuels, __ S. Ct. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 18 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately 19 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 20 Cir. 2002). 21 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 22 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 23 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 24 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 25 trust account statement, the Court assesses an initial payment of 20% of (a) the average 26 monthly deposits in the account for the past six months, or (b) the average monthly 27 balance in the account for the past six months, whichever is greater, unless the prisoner 28 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 2 3:18-cv-02731-BTM-LL 1 custody of the prisoner then collects subsequent payments, assessed at 20% of the 2 preceding month’s income, in any month in which his account exceeds $10, and forwards 3 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 4 Bruce, 136 S. Ct. at 629. 5 In support of his IFP Motion, Plaintiff has submitted a copy of his WCDOC Trust 6 Account Statement which includes a transaction register of his account activity from May 7 5, 2018 through November 27, 2018—the date he alleges to have been injured. See ECF 8 No. 2 at 4-7; see also 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 9 1119. These statements show that Plaintiff carried an average monthly balance of $9.78, 10 had average monthly deposits of $16.89 to his account over the 6-month period 11 immediately preceding the filing of his Complaint, and that he had an available balance 12 of $27.64 on the books at the time of filing. See ECF No. 2 at 4-7. Based on this financial information, the Court GRANTS Plaintiff’s Motion to 13 14 Proceed IFP (ECF No. 2), and assesses his initial partial filing fee to be $3.37 pursuant to 15 28 U.S.C. § 1915(b)(1). The Court further directs the Commissioner of the WCDOC, or 16 his designee, to collect this initial filing fee only if sufficient funds are available in 17 Plaintiff’s account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) 18 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action 19 or appealing a civil action or criminal judgment for the reason that the prisoner has no 20 assets and no means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 21 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 22 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to 23 the lack of funds available to him when payment is ordered.”). The remaining balance of 24 the $350 total fee owed in this case must be collected by the agency having custody of 25 the prisoner and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2). 26 II. Sua Sponte Screening pursuant to 28 U.S.C. § 1915(e)(2) 27 A. 28 If a prisoner’s complaint “seeks redress from a governmental entity or officer or Standard of Review 3 3:18-cv-02731-BTM-LL 1 employee of a governmental entity,” the Court “shall review” the pleading “as soon as 2 practicable after docketing,” and “dismiss the complaint, or any portion of the complaint, 3 if [it] ... is frivolous, malicious, or fails to state a claim upon which relief may be 4 granted.” 28 U.S.C. § 1915A(a), (b)(1); Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th 5 Cir. 2014). 6 Here, Plaintiff is a “prisoner” as defined by 28 U.S.C. § 1915A(c), but he invokes 7 diversity jurisdiction pursuant to 28 U.S.C. § 1332(a), and does not seek redress from or 8 name any governmental actors or entities as Defendants. (See Compl., ECF No. 1 at 1-2.) 9 Therefore, § 1915A(a)’s screening provisions do not apply. See Chavez v. Robinson, 817 10 F.3d 1162, 1168 (9th Cir. 2016) (“Section 1915A mandates early review … for all 11 complaints ‘in which a prisoner seeks relief from a governmental entity…”) (quoting § 12 1915A(a)); see also Thompson v. Hicks, 213 Fed. Appx. 939, 2007 WL 106785 at *3 13 (11th Cir. 2007) (noting that because a private defendant was not a “governmental entity” 14 as described in § 1915A, prisoner’s complaint as to that defendant was not subject to 15 dismissal under § 1915A). 16 However, because Plaintiff is proceeding IFP, his Complaint is still subject to sua 17 sponte review, and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a 18 claim upon which relief may be granted, or seek[s] monetary relief from a defendant 19 immune from such relief,” regardless of whether he seeks redress from a governmental 20 entity. See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S. Ct. 1759, 1763 21 (2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall dismiss the case at any time if 22 the court determines that—(A) the allegation of poverty is untrue; or (B) the action or 23 appeal—(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be 24 granted.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 25 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis 26 complaint that fails to state a claim.”). The purpose of § 1915’s screening provisions are 27 “‘to ensure that the targets of frivolous or malicious suits need not bear the expense of 28 responding.’” Nordstrom, 762 F.3d at 920 n.1 (citation omitted). 4 3:18-cv-02731-BTM-LL 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 4 F.3d 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss, a complaint must 5 “contain sufficient factual matter, accepted as true, to state a claim to relief that is 6 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 7 marks omitted); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 8 9 “When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 10 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 11 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 12 allegations of material fact and must construe those facts in the light most favorable to 13 the plaintiff.”); Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (courts must 14 “construe [a pro se plaintiff’s] pleadings liberally and ... afford [him] the benefit of any 15 doubt.”); Watison, 668 F.3d at 1112. 16 B. 17 As noted above, unlike most pro se prisoners, Plaintiff is not proceeding pursuant 18 to the Civil Rights Act, 42 U.S.C. § 1983 in this case, and has alleged no other basis for 19 federal question jurisdiction pursuant to 28 U.S.C. § 1331 or § 1343. Instead, his 20 Complaint invokes federal jurisdiction based solely on diversity of citizenship pursuant to 21 28 U.S.C. § 1332(a). (See Compl., ECF No. 1 at 1-2.) 22 Diversity Jurisdiction A plaintiff may invoke the court’s diversity jurisdiction “where the matter in 23 controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is 24 between ... citizens of different States.” 28 U.S.C. § 1332(a)(1). To premise jurisdiction 25 on diversity, Plaintiff must allege both diversity of citizenship and the proper amount in 26 controversy. Naffe v. Frey, 789 F.3d 1030, 1039 (9th Cir. 2015); Rilling v. Burlington N. 27 R.R. Co., 909 F.2d 399, 400-01 (9th Cir. 1990). There must be complete diversity of 28 citizenship between the opposing parties—in other words, Plaintiff must be a citizen of a 5 3:18-cv-02731-BTM-LL 1 different state than all of the defendants. See, e.g., Exxon Mobil Corp. v. Allapattah 2 Servs., Inc., 545 U.S. 546, 553 (2005); Morris v. Princess Cruises, Inc., 236 F.3d 1061, 3 1067 (9th Cir. 2001). A corporation is considered a citizen of both the state in which it is 4 incorporated and the state in which it has its principal place of business. 28 U.S.C. 5 § 1332(c)(1). 6 As currently pleaded, the Court finds Plaintiff’s Complaint alleges complete 7 diversity—he contends he is a “citizen of the State of New York,” and that the only 8 named Defendant, a corporation, is “registered by the State of California,” and “is a 9 citizen of the State of California.” (Compl., ECF No. 1 at 2.) See Caterpillar Inc. v. 10 Lewis, 519 U.S. 61, 68 (1996) (diversity jurisdiction exists where there is “complete 11 diversity” among the parties; each of the plaintiffs must be a citizen of a different state 12 than each of the defendants). 13 Plaintiff further seeks $100,000 in compensatory and $500,000 in punitive 14 damages, based on alleged personal injury to his mouth and gums. (Compl., ECF No. 1 at 15 3, 5-6.) To determine whether a complaint meets § 1332(a)’s amount in controversy 16 requirement, the court applies the “legal certainty” test. See Naffe, 789 F.3d at 1039 17 (citing Pachinger v. MGM Grand Hotel-Las Vegas, Inc., 802 F.2d 362, 363-64 (9th Cir. 18 1986)). Under this test, “the sum claimed by the plaintiff controls if the claim is 19 apparently made in good faith. It must appear to a legal certainty that the claim is really 20 for less than the jurisdictional amount to justify dismissal.” Id. at 1040 (quoting St. Paul 21 Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283-288-89 (1938)). Thus, where a 22 “complaint affirmatively alleges that the amount in controversy exceeds the jurisdictional 23 threshold ... the district court must accept the amount in controversy claimed by the 24 plaintiff unless it can declare to a legal certainty that the case is worth less.” Id. at 1040 25 (citing St. Paul Mercury Indem. Co., 303 U.S. at 288-89). 26 Applying these standards to Plaintiff’s allegations, the Court finds his Complaint is 27 sufficiently pleaded to surpass the “low threshold set for proceeding past the screening 28 stage” required by 28 U.S.C. § 1915(e)(2). Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th 6 3:18-cv-02731-BTM-LL 1 Cir. 2012). Therefore, the U.S. Marshal will be ordered to effect service upon the 2 Defendant on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall 3 issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4 4(c)(3) (“[T]he court may order that service be made by a United States marshal or 5 deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 6 U.S.C. § 1915.”).1 7 III. 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 Commissioner of the WCDOC, or his designee, to collect 12 from Plaintiff’s trust account the $3.37 initial filing fee assessed, if those funds are 13 available at the time this Order is executed, and to forward whatever balance remains of 14 the full $350 owed in monthly payments in an amount equal to twenty percent (20%) of 15 the preceding month’s income to the Clerk of the Court each time the amount in 16 Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 17 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 18 THIS ACTION. 19 3. 20 DIRECTS the Clerk of the Court to serve a copy of this Order on Joseph K. Spano, Commissioner, WCDOC, 10 Woods Road, Valhalla, New York, 10595. 21 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 22 No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for the 23 Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of this Order, 24 25 26 27 28 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 [Defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 1 7 3:18-cv-02731-BTM-LL 1 a certified copy of his Complaint, and the summons so that he may serve the Defendant.2 2 Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285 as completely 3 and accurately as possible, include an address where the Defendant may be served, see 4 S.D. Cal. CivLR 4.1.c, and return it to the United States Marshal according to the 5 instructions the Clerk provides in the letter accompanying his IFP package. 6 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 7 upon Defendant as directed by Plaintiff on the USM Form 285 provided to him. All costs 8 of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. 9 Civ. P. 4(c)(3). 10 6. ORDERS Defendant, once served, to reply to Plaintiff’s Complaint within 11 the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). 12 See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive 13 the right to reply to any action brought by a prisoner confined in any jail, prison, or other 14 correctional facility,” once the Court has conducted its sua sponte screening pursuant to 15 28 U.S.C. § 1915(e)(2), and thus, has made a preliminary determination based on the face 16 on the pleading alone that Plaintiff has a “reasonable opportunity to prevail on the 17 18 19 20 2 Because the only named Defendant is alleged to be a corporation, Plaintiff must comply with Fed. R. Civ. P. 4(h)’s service requirements via the U.S. Marshal. Pursuant to Rule 4(h)(1)(B), a domestic corporation may be served: 21 22 23 24 by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant. 25 26 27 28 Fed. R. Civ. P. 4(h)(1)(B). Alternatively, Rule 4 provides that service on a corporation may be made by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed. R. Civ. P. 4(e)(1), (h)(1)(A). See Johnson v. Shri Jai Ranchhodrai, Inc., No. 17-CV06482-VKD, 2018 WL 5617228, at *3 (N.D. Cal. Oct. 29, 2018). 8 3:18-cv-02731-BTM-LL 1 2 merits,” the Defendant is required to respond); and 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 3 serve upon Defendant or, if appearance has been entered by counsel, upon Defendant’s 4 counsel, a copy of every further pleading, motion, or other document submitted for the 5 Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 6 original document he seeks to file with the Clerk of the Court, a certificate stating the 7 manner in which a true and correct copy of that document has been was served on 8 Defendant or Defendant’s counsel, and the date of that service. See S.D. Cal. CivLR 5.2. 9 Any document received by the Court which has not been properly filed with the Clerk, or 10 11 which fails to include a Certificate of Service upon the Defendant, may be disregarded. IT IS SO ORDERED. 12 13 Dated: March 18, 2019 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 3:18-cv-02731-BTM-LL
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