French v. Mitchell, No. 3:2022cv01355 - Document 6 (S.D. Cal. 2022)
Court Description: ORDER Granting Motion to Proceed In Forma Pauperis [Doc. No. 3 ]; and Directing U.S. Marshal to Effect Service of Complaint and Summons Pursuant to 28 U.S.C. § 1915(d) & FED. R. CIV. P. 4(c)(3). Signed by Judge Michael M. Anello on 10/3/2022. (All non-registered users served via U.S. Mail Service and order mailed to Kathleen Allison.)(tcf)
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French v. Mitchell Doc. 6 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 KRISTOPHER G. FRENCH, CDCR #K-96643, 15 16 ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; AND Plaintiff, 13 14 Case No.: 22-cv-1355-MMA (AHG) vs. SERGEANT J. MITCHELL, [Doc. No. 3] Defendant. DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF COMPLAINT AND SUMMONS PURSUANT TO 28 U.S.C. § 1915(d) & FED. R. CIV. P. 4(c)(3) 17 18 19 20 21 Plaintiff Kristopher G. French, a state prisoner incarcerated at the Richard J. 22 Donovan Correctional Facility (“RJD”) in San Diego, California, proceeding pro se, has 23 filed a Complaint pursuant to 42 U.S.C. § 1983. Doc. No. 1. Plaintiff has not paid the 24 civil filing fee but has instead filed a Motion to Proceed in Forma Pauperis (“IFP”) with a 25 separately filed inmate trust account statement. Doc. Nos. 3, 5. 26 27 28 I. MOTION TO PROCEED IFP All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of -1- 22-cv-1355-MMA (AHG) Dockets.Justia.com 1 $402. 1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if they are granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007) (“28 U.S.C. 4 § 1915(a) allows the district court to waive the fee, for most individuals unable to afford 5 it, by granting IFP status.”). 6 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 7 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 8 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 9 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 10 trust account statement, the Court assesses an initial payment of 20% of (a) the average 11 monthly deposits in the account for the past six months, or (b) the average monthly 12 balance in the account for the past six months, whichever is greater, unless the prisoner 13 has no assets. See 28 U.S.C. § 1915(b)(1) & (4). The institution collects subsequent 14 payments, assessed at 20% of the preceding month’s income, in any month in which the 15 account exceeds $10, and forwards those payments to the Court until the entire filing fee 16 is paid. See 28 U.S.C. § 1915(b)(2). Plaintiff remains obligated to pay the entire fee in 17 monthly installments regardless of whether the action is ultimately dismissed. Bruce v. 18 Samuels, 577 U.S. 82, 84 (2016). 19 Plaintiff’s inmate trust account statement shows average monthly deposits of $0.04 20 and an average monthly balance of $0.22 over the 6-months prior to initiating this suit, 21 and an available balance of $0.67 at the time of filing. Doc. No. 5 at 1. The Court 22 therefore GRANTS Plaintiff’s Motion to Proceed IFP and declines to impose an initial 23 partial filing fee pursuant to 28 U.S.C. § 1915(b)(1) because the prison certificate 24 indicates Plaintiff may have no means to pay it. See 28 U.S.C. § 1915(b)(4) (providing 25 26 1 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- 22-cv-1355-MMA (AHG) 1 that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing 2 a civil action or criminal judgment for the reason that the prisoner has no assets and no 3 means by which to pay the initial partial filing fee”); Taylor v. Delatoore, 281 F.3d 844, 4 850 (9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 5 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to 6 the lack of funds available to him when payment is ordered”). Plaintiff remains obligated 7 to pay the entire fee in monthly installments. 8 9 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) A. Standard of Review 10 Because Plaintiff is a prisoner proceeding IFP, the Complaint requires a pre- 11 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua 12 sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, 13 malicious, fails to state a claim, or seeks damages from defendants who are immune. 14 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 15 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 16 U.S.C. § 1915A(b)). 17 “The standard for determining whether a plaintiff has failed to state a claim upon 18 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 19 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 20 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 21 Cir. 2012) (noting that § 1915A screening “incorporates the familiar standard applied in 22 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). 23 Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, 24 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 25 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 26 “Determining whether a complaint states a plausible claim for relief [is] . . . a context- 27 specific task that requires the reviewing court to draw on its judicial experience and 28 common sense.” Id. -3- 22-cv-1355-MMA (AHG) 1 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 2 acting under color of state law, violate federal constitutional or statutory rights.” 3 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, 4 a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws 5 of the United States, and (2) that the deprivation was committed by a person acting under 6 color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 7 B. Allegations in the Complaint 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Plaintiff is a 39-year old Transgender who just recently came out 2 years ago and started doing hormonal therapy. On August 21, 20[20] - C14 where I am housed was being searched randomly. I was housed in C14-206 with my cellmate “Blake” who is also Transgender. Our cell was approached by Sgt. J. Mitchell the Defendant. He came to the door and immediately asked “What’s on your back wall.” I informed him that they were Odinist GODs printed out by the spych [sic] techs. Sgt. Mitchell then said “Oh Vall White Power.” We both said “no” we-r-just Transgender with Odinist beliefs (Odinist are Norse Religions). He quickly became upset, and said “strip out, drop it and cough.” I went first. I took off all my clothes turned around, opened by butt cheeks and coughed. Sgt Mitchell said do it again this time open your ass real wide. I asked if this was necessary and he said it’s a verbal order, 115 if you refuse. I did as the Sgt asked and bent over opened by butt cheeks and coughed. He then said no bust that thing open. I felt violated sexually and scared/vulnerable. I bent over and held my butt cheeks open for what seemed to be a minute, I thought that was over. Sgt Mitchell then said turn and look at me and run your fingers thru your mouth in case you are hiding any contraband. I told Sgt. Mitchell that my fingers have fecal matter on them and I could smell it and I don’t want to run my fingers thru my mouth. The Defendant became aggressive and told me that if I did not obey his order he was gonna write me several RVRs and move me to another cell. I did as the Sgt said. I started to cry because I can taste the fecal matter. I ran my fingers thru my mouth and he saw the look on my face and bust out in uncontrollable laughter, he even put his hands on his knees from laffing [sic] so hard. I found the strength to tell Sgt. J. Mitchell that what he did to me was wrong and violated me sexually and threatened me with RVRs if I did not comply with his evil orders. Sgt J. Mitchell then stated “Black Lives Matter.” 27 28 Doc. No. 1 at 3–4. -4- 22-cv-1355-MMA (AHG) 1 Attached to the Complaint as an exhibit is a declaration from Plaintiff’s cellmate, 2 Inmate Blake, who states that Defendant Sergeant Mitchell forced her through that same 3 sequence of events immediately after Plaintiff, that Defendant Mitchell made the strip 4 searches into “a racial issue” where no racial issue existed, and as a result of being forced 5 to run her fingers through her mouth which had fecal matter on them from the anal cavity 6 search, she “developed e-coli, a bacteria that’s caused from feces and I was given anti- 7 biotics.” Doc. No. 1-3 at 2–3. 8 C. 9 Discussion “[A] prisoner presents a viable Eighth Amendment claim where he or she proves 10 that a prison staff member, acting under color of law and without legitimate penological 11 justification, touched the prisoner in a sexual manner or otherwise engaged in sexual 12 conduct for the staff member’s own sexual gratification, or for the purpose of 13 humiliating, degrading, or demeaning the prisoner.” Bearchild v. Cobban, 947 F.3d 14 1130, 1144 (9th Cir. 2020). Searches of prisoners which begin as legitimate and 15 acceptable, albeit invasive, procedures, can become a constitutional violation where the 16 prison official’s “conduct exceeded the scope of what was required to satisfy whatever 17 institutional concern justified the initiation of the procedure.” Id. at 1145. In addition, a 18 body search inside a prison can become so unreasonable as to violate the federal 19 constitution where it is “excessive, vindictive, harassing, or unrelated to any legitimate 20 penological purpose.” Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988) (citing 21 Bell v. Wolfish, 441 U.S. 520, 559 (1979) (holding that in determining the reasonableness 22 of a prison strip search, “[c]ourts must consider the scope of the particular intrusion, the 23 manner in which it is conducted, the justification for initiating it, and the place in which 24 it is conducted”)). 25 Plaintiff alleges the strip search conducted by Defendant Sergeant Mitchell was 26 racially motivated, unnecessarily and gratuitously sexually demeaning and humiliating, 27 and subjected Plaintiff to the same unhygienic conditions which caused Plaintiff’s 28 cellmate to develop a bacterial infection. Plaintiff’s allegations against Defendant -5- 22-cv-1355-MMA (AHG) 1 Sergeant Mitchell are sufficient to survive the “low threshold” for proceeding past the 2 sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) & 1915A(b) because they 3 plausibly allege a violation of Plaintiff’s right to be free from procedures conducted “for 4 the purpose of humiliating, degrading, or demeaning the prisoner,” and strip searches 5 which are “excessive, vindictive, harassing, or unrelated to any legitimate penological 6 purpose.” Bearchild, 947 F.3d at 1144–45; Michenfelder, 860 F.2d at 332; Wolfish, 441 7 U.S. at 559; Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 8 678. 9 Accordingly, Plaintiff is entitled to have the U.S. Marshal effect service of the 10 summons and Complaint against Defendant Sergeant Mitchell. See 28 U.S.C. § 1915(d) 11 (“The officers of the court shall issue and serve all process, and perform all duties in 12 [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by a 13 United States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in 14 forma pauperis under 28 U.S.C. § 1915.”). Nevertheless, the Court cautions Plaintiff that 15 the sua sponte screening process is “cumulative of, not a substitute for, any subsequent 16 [motion to dismiss] that the defendant may choose to bring.” Teahan v. Wilhelm, 481 17 F.Supp.2d 1115, 1119 (S.D. Cal. 2007). 18 III. CONCLUSION 19 Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP. 20 The Court DIRECTS the Secretary of the CDCR, or her designee, to collect from 21 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 22 monthly payments from Plaintiff’s account in an amount equal to twenty percent (20%) 23 of the preceding month’s income and forwarding those payments to the Clerk of the 24 Court each time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 25 1915(b)(2). 26 The Court DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. 27 Mail on Kathleen Allison, Secretary, California Department of Corrections and 28 Rehabilitation, P.O. Box 942883, Sacramento, California, 94283-0001. -6- 22-cv-1355-MMA (AHG) 1 The Court further DIRECTS the Clerk to issue a summons as to Plaintiff’s 2 Complaint (Doc. No. 1) for Defendant Mitchell and forward it to Plaintiff along with a 3 blank U.S. Marshal Form 285. The Clerk will provide Plaintiff with certified copies of 4 the Complaint and summons for use in serving Defendant. Upon receipt of this “In 5 Forma Pauperis Package,” Plaintiff must complete the USM Form 285 as completely and 6 accurately as possible, include an address where Defendant may be found and/or subject 7 to service pursuant to S.D. Cal. CivLR 4.1(c), and return the forms to the United States 8 Marshal according to the instructions the Clerk provides in the letter accompanying the In 9 Forma Pauperis Package. 10 The Court ORDERS the U.S. Marshal to serve a copy of the Complaint and 11 summons upon Defendant Mitchell as directed by Plaintiff on the USM Form 285. Costs 12 of service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. 13 P. 4(c)(3). 14 The Court ORDERS Defendant, once served, to respond to Plaintiff’s Complaint 15 and any subsequent pleading Plaintiff files in this matter in which Defendant is named as 16 a party within the time provided by the applicable provisions of Federal Rules of Civil 17 Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while Defendants may 18 occasionally be permitted to “waive the right to reply to any action brought by a prisoner 19 confined in any jail, prison, or other correctional facility under section 1983,” once the 20 Court has conducted its sua sponte screening Defendants are required to respond). 21 The Court ORDERS Plaintiff, after service has been effected by the U.S. Marshal, 22 to serve upon Defendant, or if appearance has been entered by counsel, upon Defendant’s 23 counsel, a copy of every further pleading, motion, or other document submitted for the 24 Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 25 original document sought to be filed with the Clerk, a certificate stating the manner in 26 which a true and correct copy of that document has been served on Defendant or his 27 counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document received 28 by the Court which has not been properly filed with the Clerk or which fails to include a -7- 22-cv-1355-MMA (AHG) 1 2 3 Certificate of Service upon a Defendant, or their counsel, may be disregarded. IT IS SO ORDERED. Dated: October 3, 2022 4 _____________________________ 5 HON. MICHAEL M. ANELLO United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- 22-cv-1355-MMA (AHG)
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