Fletcher v. Quin et al, No. 3:2015cv02156 - Document 11 (S.D. Cal. 2016)
Court Description: ORDER Granting 8 Plaintiff's Motion for Leave to Proceed in forma pauperis; and Directing U.S. Marshal to Effect Service of Summons and Complaint. (Order electronically transmitted to Secretary of CDCR). The Clerk of the Court is directe d to serve a copy of this Order on Scott Kernan, Secretary, California Department of Corrections and Rehabilitation. The Clerk is directed to issue a summons as to Plaintiff's First Amended Complaint. Signed by Judge Gonzalo P. Curiel on 2/2/16. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (IFP packet prepared and mailed to plaintiff. dlg)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Case No.: 3:15-cv-02156-GPC-NLS GREGORY FLETCHER C-41111, 13 14 15 16 17 18 ORDER: Plaintiff, 1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) (ECF No. 8) v. C/O QUIN; C/O LOPEZ; SERGEANT STRICKLAND; C/O ROMERO; C/O GALVAN; C/O GRISSON; C/O SORRANNO; CAPTAIN SANCHEZ, AND Defendants. 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 Gregory Fletcher (“Plaintiff”), currently incarcerated at Salinas Valley State Prison 24 located in Soledad, California, and proceeding pro se, has filed a civil rights complaint 25 (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). Before the Court could conduct 26 the required sua sponte screening, Plaintiff filed a First Amended Complaint (“FAC”) 27 which is the operative pleading. Plaintiff claims his civil rights were violated when he 1 3:15-cv-02156-GPC-NLS C:\Users\ALEXAN~1\AppData\Local\Temp\notes57A0C8\15cv2156-grt IFP and serve FAC.docm 1 was housed at the Richard J. Donovan Correctional Facility in 2014 and 2015. (See FAC 2 at 1.) 3 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead, 4 he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) 5 (ECF No. 8). 6 II. Plaintiff’s 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. See 28 U.S.C. § 1914(a).1 An 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, if a prisoner, like Plaintiff, is granted 13 leave to proceed IFP, he remains obligated to pay the entire fee in “increments,” see 14 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action 15 is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 16 844, 847 (9th Cir. 2002). 17 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), 18 a prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund 19 account statement (or institutional equivalent) for the prisoner for the six-month period 20 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 21 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 22 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 23 for the past six months, or (b) the average monthly balance in the account for the past six 24 25 26 27 1 In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, 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) (eff. May 1, 2013). However, the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id. 2 3:15-cv-02156-GPC-NLS C:\Users\ALEXAN~1\AppData\Local\Temp\notes57A0C8\15cv2156-grt IFP and serve FAC.docm 1 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 2 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects 3 subsequent payments, assessed at 20% of the preceding month’s income, in any month in 4 which the prisoner’s account exceeds $10, and forwards those payments to the Court until 5 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 6 In support of his IFP Motion, Plaintiff has now submitted a certified copy of his trust 7 account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. Andrews, 8 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement, but it shows 9 that he has a current available balance of zero. See 28 U.S.C. § 1915(b)(4) (providing that 10 “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil 11 action or criminal judgment for the reason that the prisoner has no assets and no means by 12 which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 13 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 14 solely on a “failure to pay . . . due to the lack of funds available to him when payment is 15 ordered.”). 16 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 8) and 17 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 18 balance of the filing fees mandated will be collected by the California Department of 19 Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court pursuant 20 to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 21 III. 22 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the 23 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP 24 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 25 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 26 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 27 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A 3 3:15-cv-02156-GPC-NLS C:\Users\ALEXAN~1\AppData\Local\Temp\notes57A0C8\15cv2156-grt IFP and serve FAC.docm 1 statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are 2 frivolous, malicious, fail to state a claim, or which seek damages from defendants who are 3 immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 F.3d 1122, 4 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 5 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 6 All complaints must contain “a short and plain statement of the claim showing that 7 the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not 8 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 9 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 10 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a 11 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 12 reviewing court to draw on its judicial experience and common sense.” Id. The “mere 13 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 14 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 15 “When there are well-pleaded factual allegations, a court should assume their 16 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 17 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 18 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 19 allegations of material fact and must construe those facts in the light most favorable to 20 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 21 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 22 However, while the court “ha[s] an obligation where the petitioner is pro se, 23 particularly in civil rights cases, to construe the pleadings liberally and to afford the 24 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 25 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply 26 essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the 27 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 4 3:15-cv-02156-GPC-NLS C:\Users\ALEXAN~1\AppData\Local\Temp\notes57A0C8\15cv2156-grt IFP and serve FAC.docm 1 As currently pleaded, the Court finds allegations in Plaintiff’s Complaint which are 2 sufficient to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 3 1915A(b). Accordingly, the Court will direct the U.S. Marshal to effect service on 4 Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve 5 all process, and perform all duties in [IFP] cases.”); Fed.R.Civ.P. 4(c)(3) (“[T]he court may 6 order that service be made by a United States marshal or deputy marshal . . . if the plaintiff 7 is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 8 III. 9 Good cause appearing, IT IS HEREBY ORDERED that: 10 11 Conclusion and Order 1. Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 8) is GRANTED. 12 2. The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s 13 prison trust account the $350 filing fee owed in this case by collecting monthly payments 14 from the account in an amount equal to twenty percent (20%) of the preceding month’s 15 income and forward payments to the Clerk of the Court each time the amount in the account 16 exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE 17 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 18 ACTION. 19 3. The Clerk of the Court is directed to serve a copy of this Order on Scott 20 Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 21 942883, Sacramento, California, 94283-0001. 22 /// 23 24 25 26 27 5 3:15-cv-02156-GPC-NLS C:\Users\ALEXAN~1\AppData\Local\Temp\notes57A0C8\15cv2156-grt IFP and serve FAC.docm 1 IT IS FURTHER ORDERED that: 2 4. The Clerk is DIRECTED to issue a summons as to Plaintiff’s First Amended 3 Complaint (ECF No. 6) upon Defendants and forward it to Plaintiff along with blank U.S. 4 Marshal Form 285s for each named Defendant. In addition, the Clerk is directed provide 5 Plaintiff with a certified copy of this Order and a certified copy of his First Amended 6 Complaint (ECF No. 6) and the summons so that he may serve each named Defendant. 7 Upon receipt of this “IFP Package,” Plaintiff is directed to complete the Form 285s as 8 completely and accurately as possible, and to return them to the United States Marshal 9 according to the instructions provided by the Clerk in the letter accompanying his IFP 10 package. 11 5. Upon receipt, the U.S. Marshal is ORDERED to serve a copy of the First 12 Amended Complaint and summons upon the named Defendants as directed by Plaintiff on 13 the USM Form 285s. All costs of service will be advanced by the United States. See 28 14 U.S.C. § 1915(d); Fed.R.Civ.P. 4(c)(3). 15 6. Defendants are thereafter ORDERED to reply to Plaintiff’s First Amended 16 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 17 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be 18 permitted to “waive the right to reply to any action brought by a prisoner confined in any 19 jail, prison, or other correctional facility 20 conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and 21 thus, has made a preliminary determination based on the face on the pleading alone that 22 Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is required 23 to respond). 24 7. under section 1983,” once the Court has Plaintiff must serve upon the Defendants or, if appearance has been entered 25 by counsel, upon Defendants’ counsel, a copy of every further pleading or other document 26 submitted for consideration by the Court. Plaintiff must include with the original paper to 27 be filed with the Clerk of the Court, a certificate stating the manner in which a true and 6 3:15-cv-02156-GPC-NLS C:\Users\ALEXAN~1\AppData\Local\Temp\notes57A0C8\15cv2156-grt IFP and serve FAC.docm 1 correct copy of the document was served on the Defendants, or counsel for Defendants, 2 and the date of that service. Any paper received by the Court which has not been properly 3 filed with the Clerk, or which fails to include a Certificate of Service, may be disregarded. 4 5 Dated: February 2, 2016 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 7 3:15-cv-02156-GPC-NLS C:\Users\ALEXAN~1\AppData\Local\Temp\notes57A0C8\15cv2156-grt IFP and serve FAC.docm
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