Newton v. Eatmon, No. 3:2021cv00015 - Document 5 (S.D. Cal. 2021)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis and Directing U.S. Marshal to Effect Service of Complaint and Summons upon Defendant Eatmon Pursuant to 28 U.S.C. 1915(d) & fed. R. Civ. 4(c)(3). US Marshal shall effect service of co mplaint. 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 payments from the trust account in an amount equal to 20% of the prece ding 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 mailed to Secretary of CDCR; IFP package mailed to Plaintiff). Signed by Judge Larry Alan Burns on 4/7/2021. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (jmr)
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Newton v. Eatmon Doc. 5 Case 3:21-cv-00015-LAB-KSC Document 5 Filed 04/07/21 PageID.19 Page 1 of 8 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 THEODORE J. NEWTON, CDCR #BF-2949, Case No.: 3:21-cv-00015-LAB-KSC Plaintiff, 12 vs. 13 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2] 14 15 ORDER: S. EATMON, Correctional Officer, Defendant. 16 AND 2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF COMPLAINT AND SUMMONS UPON DEFENDANT EATMON PURSUANT TO 28 U.S.C. § 1915(d) & Fed. R. Civ. P. 4(c)(3) 17 18 19 20 21 22 Plaintiff Theodore J. Newton, a prisoner at Richard J. Donovan Correctional Facility 23 (“RJD”) in San Diego, California, and proceeding pro se, has filed a new civil rights action 24 pursuant to 42 U.S.C. § 1983. 1 (See Compl., ECF No. 1.) Newton claims RJD Correctional 25 26 1 27 28 Newton filed a new Complaint after the Ninth Circuit affirmed this Court’s December 5, 2019 Order and judgment dismissing his claims against Officer Eatmon without prejudice based on his failure to exhaust available administrative remedies prior to filing suit in Newton v. Eatmon, et al., S.D. Cal. Civil Case No. 3:19-cv-00511-LAB-KSC. See id., ECF Nos. 34, 35; Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 1 3:21-cv-00015-LAB-KSC Dockets.Justia.com Case 3:21-cv-00015-LAB-KSC Document 5 Filed 04/07/21 PageID.20 Page 2 of 8 1 Officer S. Eatmon used excessive force against him on August 27, 2018 during a medical 2 appointment, and later harassed, threatened, and assaulted him because he filed a 3 CDCR 602 inmate appeal reporting the incident. Id. at 3. Newton claims he is a senior 4 citizen and an “ADA prisoner with one eye and several more medical issues,” and contends 5 Eatmon assaulted him “for no apparent reason.” Id. at 4. 6 Newton did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when he 7 filed his Complaint; instead, he filed a Motion to Proceed n Forma Pauperis (“IFP”) 8 pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 9 I. Motion to Proceed IFP 10 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 $402. 2 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, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th 18 19 20 21 22 23 24 25 2007) (the court “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’”) (citation omitted). In response to Newton’s motion for clarification on appeal, the Ninth Circuit advised that he “may refile his complaint in district court.” See Newton v. Eatmon, et al., Appeal No. 19-56478 (9th Cir. Dec. 28, 2020) (ECF No. 44). Newton timely re-submitted his Complaint to the Clerk of this Court on January 6, 2021, together with a new Motion to Proceed In Forma Pauperis—but the new case was randomly assigned to U.S. District Judge William Q. Hayes and U.S. Magistrate Judge Barbara L. Major. It has since been transferred to this Court and U.S. Magistrate Judge Karen S. Crawford as related to Newton v. Eatmon, et al., S.D. Cal. Civil Case No. 3:19-cv-00511-LAB-KSC pursuant to the Court’s “Low-Number” Rule. See ECF No. 4; S.D. Cal. CivLR 40.1. 26 2 27 28 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:21-cv-00015-LAB-KSC Case 3:21-cv-00015-LAB-KSC Document 5 Filed 04/07/21 PageID.21 Page 3 of 8 1 Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 2 § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 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 balance 9 in the account for the past six months, whichever is greater, unless the prisoner has no 10 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 11 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 12 month’s income, in any month in which his account exceeds $10, and forwards those 13 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 14 577 U.S. at 84. 15 In support of his IFP Motion, Newton has submitted a copy of his CDCR Inmate 16 Statement Report as well as a Prison Certificate completed by an accounting officer at RJD. 17 (See ECF No. 3 at 1-3); 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d 18 at 1119. These statements show Newton has carried an average monthly balance of $1.67, 19 but had no monthly deposits to his account over the 6-month period immediately preceding 20 the filing of his Complaint, and only a $.05 available balance on the books at the time of 21 filing. (See ECF No. 3 at 1, 3.) 22 Based on this accounting, the Court GRANTS Newton’s Motion to Proceed IFP 23 (ECF No. 2) and assesses an initial partial filing fee of $.33 pursuant to 28 U.S.C. 24 § 1915(b)(1).3 However, this initial fee need be collected only if sufficient funds are 25 26 3 27 28 Because Newton has previously filed related Civil Case No. 3:19-cv-00511-LAB-KSC, as well as an appeal in that case to the Ninth Circuit, see Appeal No. 19-56478, he will be required to pay three full and separate filing fees which will be collected simultaneously, depending on the income credited to his account. See Bruce, 577 U.S. at 85, 89 90 (“Just as § 1915(b)(1) calls for assessment of ‘an initial partial 3 3:21-cv-00015-LAB-KSC Case 3:21-cv-00015-LAB-KSC Document 5 Filed 04/07/21 PageID.22 Page 4 of 8 1 available in Newton’s account at the time this Order is executed. See 28 U.S.C. 2 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 3 civil action or appealing a civil action or criminal judgment for the reason that the prisoner 4 has no assets and no means by which to pay the initial partial filing fee.”); Bruce, 577 U.S. 5 at 86; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 6 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the 7 lack of funds available to him when payment is ordered.”). The remaining balance of the 8 $350 total fee owed in this case must be collected by the agency having custody of Newton 9 and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2). 10 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 11 A. 12 Because Newton is a prisoner and is proceeding IFP, his Complaint also requires a 13 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 14 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, 15 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who 16 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 17 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 18 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 19 the targets of frivolous or malicious suits need not bear the expense of responding.’” 20 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). Standard of Review 21 “The standard for determining whether a plaintiff has failed to state a claim upon 22 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 23 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 24 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 25 26 27 28 filing fee’ each time a prisoner ‘brings a civil action or files an appeal’ (emphasis added), so its allied provision, § 1915(b)(2), triggered immediately after, calls for ‘monthly payments of 20 percent of the preceding month’s income’ simultaneously for each action pursued.”). 4 3:21-cv-00015-LAB-KSC Case 3:21-cv-00015-LAB-KSC Document 5 Filed 04/07/21 PageID.23 Page 5 of 8 1 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 2 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 3 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 4 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 5 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 6 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 7 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 8 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 9 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 10 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 11 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 12 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 13 B. 14 Newton is an “ADA prisoner with one eye & several more medical issues.” (See 15 Compl., ECF No. 1 at 3.) Upon arrival at RJD on August 27, 2018, he was escorted to his 16 “first physical examination” in the prison’s medical facility by Correctional Officer S. 17 Eatmon, who “informed his Sergeant that he and [Newton] were going to have problems.” 18 Id. Once inside the medical office, Newton claims Eatmon pushed him while he was seated 19 in a chair with enough force to almost knock him to the floor twice, leaned against him 20 with his full weight, and after seeing that Newton “would not fight him back,” “pull[ed] 21 out a handful of [his] beard and dared [him] to say anything about his force and violence.” 22 Id. Factual Allegations 23 Newton further claims Eatmon later “harassed [him] because of [his CDR] 602” on 24 September 27, 2018, and “assaulted” him again on October 3 and 4, 2018, “telling [him] 25 he was going to knock out [his] only eye.” Id. 26 C. 27 “Section 1983 creates a private right of action against individuals who, acting under 28 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 42 U.S.C. § 1983 5 3:21-cv-00015-LAB-KSC Case 3:21-cv-00015-LAB-KSC Document 5 Filed 04/07/21 PageID.24 Page 6 of 8 1 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff must show 2 both (1) deprivation of a right secured by the Constitution and laws of the United States, 3 and (2) that the deprivation was committed by a person acting under color of state law.” 4 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 5 D. 6 The allegations in Newton’s Complaint involving Correctional Officer S. Eatmon 7 are pleaded with enough factual sufficiency to survive the “low threshold” set for sua 8 sponte screening as required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 9 F.3d at 1123; Iqbal, 556 U.S. at 678; Hudson v. McMillian, 503 U.S. 1, 5, (1992) 10 (unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments 11 Clause of the Eighth Amendment); Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) 12 (for claims arising out of the use of excessive physical force, the issue is “whether force 13 was applied in a good-faith effort to maintain or restore discipline, or maliciously and 14 sadistically to cause harm.”) (citing Hudson, 503 U.S. at 7); Rhodes v. Robinson, 408 F.3d 15 559, 567-68 (9th Cir. 2005) (“Within the prison context, a viable claim of First Amendment 16 retaliation entails five basic elements: (1) An assertion that a state actor took some adverse 17 action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such 18 action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action 19 did not reasonably advance a legitimate correctional goal.”). Force and Retaliation Claims 20 Therefore, the Court will order the U.S. Marshal to effect service upon Defendant 21 S. Eatmon on Newton’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall 22 issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) 23 (“[T]he court may order that service be made by a United States marshal or deputy marshal 24 ... if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).4 25 26 27 28 4 Newton 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 defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 6 3:21-cv-00015-LAB-KSC Case 3:21-cv-00015-LAB-KSC Document 5 Filed 04/07/21 PageID.25 Page 7 of 8 1 III. Conclusion and Order 2 For the reasons explained, the Court: 3 1. 4 5 GRANTS Newton’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 2. DIRECTS the Secretary of the CDCR, or her designee, to collect from 6 Newton’s trust account the $.33 initial filing fee assessed, if those funds are available at 7 the time this Order is executed, and to forward whatever balance remains of the full $350 8 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding 9 month’s income to the Clerk of the Court each time the amount in Newton’s account 10 exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY 11 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 12 3. DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 13 on Kathleen Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283- 14 0001, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov. 15 4. DIRECTS the Clerk to issue a summons as to Newton’s Complaint (ECF No. 16 1) upon Defendant S. Eatmon, and forward it to Newton along with a blank U.S. Marshal 17 Form 285. In addition, the Clerk will provide Newton with a certified copy of this Order, 18 a certified copy of his Complaint, and the summons so that he may serve Eatmon. Upon 19 receipt of this “IFP Package,” Newton must complete the USM Form 285 as completely 20 and accurately as possible, include an address where Eatmon may be found and/or subject 21 to service pursuant to S.D. Cal. CivLR 4.1c., and return it to the U.S. Marshal according to 22 the instructions the Clerk provides. 23 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 24 upon Defendant Eatmon upon receipt and as directed by Newton on the completed USM 25 Form 285, and to promptly file proof of service, or proof of any attempt at service unable 26 to be executed, with the Clerk of Court. See S.D. Cal. CivLR 5.2. All costs of that service 27 will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 28 6. ORDERS Eatmon, once served, to reply to Newton’s Complaint within the 7 3:21-cv-00015-LAB-KSC Case 3:21-cv-00015-LAB-KSC Document 5 Filed 04/07/21 PageID.26 Page 8 of 8 1 time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 2 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the 3 right to reply to any action brought by a prisoner confined in any jail, prison, or other 4 correctional facility under section 1983,” once the Court has conducted its sua sponte 5 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a 6 preliminary determination based on the face on the pleading alone that Plaintiff has a 7 “reasonable opportunity to prevail on the merits,” defendant is required to respond). 8 7. ORDERS Newton, after service has been effected by the U.S. Marshal, to 9 serve upon Eatmon, or if appearance has been entered by counsel, upon Eatmon’s counsel, 10 a copy of every further pleading, motion, or other document submitted for the Court’s 11 consideration pursuant to Fed. R. Civ. P. 5(b). Newton must include with every original 12 document he seeks to file with the Clerk of the Court, a certificate stating the manner in 13 which a true and correct copy of that document has been was served on Eatmon or his 14 counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document received by 15 the Court which has not been properly filed with the Clerk or which fails to include a 16 Certificate of service upon Eatmon, or his counsel, may be disregarded. 17 18 IT IS SO ORDERED. 19 20 21 22 Dated: April 7, 2021 Hon. Larry A. Burns United States District Judge 23 24 25 26 27 28 8 3:21-cv-00015-LAB-KSC
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