Salmen v. Terronez, No. 3:2023cv01403 - Document 5 (S.D. Cal. 2023)
Court Description: ORDER Granting 2 Motion to Proceed In Forma Pauperis; and Directing U.S. Marshals Service to Effect Service of Complaint and Summons Pursuant to 28 U.S.C. § 1915(d) and Federal Rule of Civil Procedure 4(c)(3). The Secretary CDCR, or his des ignee, 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 preceding month income credited to the accoun t 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 electronically transmitted to Secretary of CDCR). Signed by Judge Janis L. Sammartino on 8/8/23. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (aas)
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Salmen v. Terronez Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JUSTIN SALMEN, CDCR #BK-5581, Case No.: 23-CV-1403 JLS (DEB) ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; AND (2) DIRECTING U.S. MARSHALS SERVICE TO EFFECT SERVICE OF COMPLAINT AND SUMMONS PURSUANT TO 28 U.S.C. § 1915(d) AND FEDERAL RULE OF CIVIL PROCEDURE 4(c)(3) Plaintiff, 13 14 15 v. 16 17 18 L. TERRONEZ, Correctional Officer, Defendant. 19 20 21 22 Plaintiff Justin Salmen (“Plaintiff”), a state prisoner proceeding pro se, has filed a 23 civil rights complaint pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Plaintiff 24 claims that, while housed at the Richard J. Donovan Correctional Facility (“RJD”) in San 25 Diego, California, Defendant RJD Correctional Officer L. Terronez (“Defendant 26 Terronez”) forced him to sit on a metal bench in the sun, resulting in a second-degree 27 sunburn which became infected. See id. at 8–10. 28 /// 1 23-CV-1403 JLS (DEB) Dockets.Justia.com 1 2 Plaintiff has not paid the civil filing fee but has instead filed a Motion to Proceed in Forma Pauperis (“IFP”). See ECF No. 2 (“IFP Mot.”). 3 MOTION TO PROCEED IN FORMA PAUPERIS 4 All parties instituting any civil action, suit, or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $402. 1 See 28 U.S.C. § 1914(a). An action may proceed despite the plaintiff’s failure to 7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 8 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007) (“28 U.S.C. 9 § 1915(a) allows the district court to waive the fee, for most individuals unable to afford 10 it, by granting IFP status.”). 11 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 12 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 13 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 14 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 15 trust account statement, the Court assesses an initial payment of 20% of (a) the average 16 monthly deposits in the account for the past six months, or (b) the average monthly balance 17 in the account for the past six months, whichever is greater, unless the prisoner has no 18 assets. See 28 U.S.C. §§ 1915(b)(1) & (4). The institution collects subsequent payments, 19 assessed at 20% of the preceding month’s income, in any month in which the account 20 exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. 21 See 28 U.S.C. § 1915(b)(2). The plaintiff remains obligated to pay the entire fee in monthly 22 installments, regardless of whether the action is ultimately dismissed. Bruce v. Samuels, 23 577 U.S. 82, 84 (2016). 24 /// 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 $52 administrative fee does not apply to persons granted leave to proceed IFP, however. Id. 2 23-CV-1403 JLS (DEB) 1 In support of his IFP Motion, Plaintiff has submitted a copy of his California 2 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report, which 3 indicates that, during the six months prior to filing suit, Plaintiff had an average monthly 4 balance of $8.50, average monthly deposits of $10.33, and an available balance of $2.00 in 5 his account at the time he filed suit. ECF No. 4 at 1. The Court therefore GRANTS 6 Plaintiff’s Motion to Proceed IFP and declines to impose the $2.07 initial partial filing fee 7 pursuant to 28 U.S.C. § 1915(b)(1), because the prison certificate indicates Plaintiff may 8 have no means to pay it. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a 9 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 10 judgment for the reason that the prisoner has no assets and no means by which to pay the 11 initial partial filing fee”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding 12 that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s 13 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when 14 payment is ordered.”). Plaintiff remains obligated to pay the entire fee in monthly 15 installments. 16 17 SCREENING PURSUANT TO 28 U.S.C. §§ 1915(E)(2) & 1915A(B) I. Standard of Review 18 Because Plaintiff is a prisoner proceeding IFP, his Complaint requires a pre-answer 19 screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The Court must dismiss sua 20 sponte a prisoner’s IFP complaint, or any portion of it, that is frivolous, is malicious, fails 21 to state a claim, or seeks damages from immune defendants. Lopez v. Smith, 203 F.3d 22 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. 23 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 24 “The standard for determining whether a plaintiff has failed to state a claim upon 25 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 26 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 27 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 28 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 3 23-CV-1403 JLS (DEB) 1 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 2 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 3 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 4 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining 5 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 6 requires the reviewing court to draw on its judicial experience and common sense.” Id. 7 Section 1983 of title 42 of the United States Code “creates a private right of action 8 against individuals who, acting under color of state law, violate federal constitutional or 9 statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish 10 § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the 11 Constitution and laws of the United States, and (2) that the deprivation was committed by 12 a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 13 (9th Cir. 2012). 14 II. Plaintiff’s Allegations 15 Plaintiff alleges that, on May 21, 2023, Defendant RJD Correctional Officer L. 16 Terronez ordered Plaintiff “to sit on a dirty metal bench with bird feces all over it directly 17 in the sun with no shade . . . and forced [him] to sit on that specific bench to sun burn 18 [him].” Compl. at 3. When Plaintiff asked Defendant “if she was ordering me to just sit 19 in the sun and burn up her exact response was ‘pretty much.’” Id. Plaintiff states: 20 I was left in the direct sun where I received not only sunburn but skin infection on an estimated 5 inches of my left arm where the doctors first ordered ‘silver sulphadiazine’ for a second[-]degree resulting burn and 8 days later had to take antibiotics for resulting infections on the burns. 21 22 23 24 Id. He claims a violation of his right to be free from cruel and unusual punishment. Id. 25 III. Discussion 26 The Cruel and Unusual Punishments Clause of the Eighth Amendment of the U.S. 27 Constitution forbids prison officials from “the unnecessary and wanton infliction of pain.” 28 Whitley v. Albers, 475 U.S. 312, 319 (1986). “[A] prison official violates the Eighth 4 23-CV-1403 JLS (DEB) 1 Amendment when two requirements are met. First, the deprivation alleged must be, 2 objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, 3 the plaintiff must allege that the prison official he seeks to hold liable had a “‘sufficiently 4 culpable state of mind’ . . . [T]hat state of mind is one of ‘deliberate indifference’ to inmate 5 health or safety.” Id. A prison official can be held liable only if she “knows of and 6 disregards an excessive risk to inmate health and safety;” she “must both be aware of facts 7 from which the inference could be drawn that a substantial risk of serious harm exists, and 8 [s]he must also draw the inference.” Id. at 837. 9 Here, Plaintiff has plausibly alleged the objective component of an Eighth 10 Amendment violation. See McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992) 11 (“The existence of an injury that a reasonable doctor or patient would find important and 12 worthy of comment or treatment; the presence of a medical condition that significantly 13 affects an individual’s daily activities; or the existence of chronic and substantial pain are 14 examples of indications that a prisoner has a ‘serious’ need” within the meaning of the 15 Eighth Amendment.), overruled on other grounds by WMX Technologies, Inc. v. Miller, 16 104 F.3d 1133 (9th Cir. 1997). Plaintiff also has plausibly alleged that Defendant Terronez, 17 by responding “pretty much” when Plaintiff asked her “if she was ordering me to just sit 18 in the sun and burn up,” was aware of and deliberately disregarded a substantial risk to 19 Plaintiff’s health. Farmer, 511 U.S. at 837. Plaintiff’s allegations are thus sufficient to 20 survive the “low threshold” of the screening required by 28 U.S.C. §§ 1915(e)(2) & 21 1915A(b) with respect to stating an Eighth Amendment claim against Defendant Terronez. 22 Wilhelm, 680 F.3d at 1123. 23 Accordingly, Plaintiff is entitled to have the U.S. Marshals Service effect service of 24 the summons and Complaint against Defendant Terronez. See 28 U.S.C. § 1915(d) (“The 25 officers of the court shall issue and serve all process, and perform all duties in [IFP] 26 cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United 27 States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in forma 28 pauperis under 28 U.S.C. § 1915.”). Nevertheless, the Court cautions Plaintiff that the sua 5 23-CV-1403 JLS (DEB) 1 sponte screening process is “cumulative of, not a substitute for, any subsequent [motion to 2 dismiss] that the defendant[s] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 3 1115, 1119 (S.D. Cal. 2007). 4 CONCLUSION AND ORDERS 5 Accordingly, good cause appearing, the Court: 6 (1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2); 7 (2) DIRECTS the Secretary of CDCR or his designee, pursuant to 28 U.S.C. 8 § 1915(b)(2), to collect from Plaintiff’s prison trust account the $350 filing fee owed in 9 this case by garnishing monthly payments from Plaintiff’s account in an amount equal to 10 twenty percent (20%) of the preceding month’s income and forwarding those payments to 11 the Clerk of the Court each time the amount in the account exceeds $10; 12 (3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 13 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation, 14 P.O. Box 942883, Sacramento, California, 94283-0001; 15 (4) DIRECTS the Clerk of the Court to issue a summons as to Plaintiff’s 16 Complaint (ECF No. 1) for Defendant Terronez and forward it to Plaintiff along with a 17 blank U.S. Marshal Form 285 (“USM Form 285”). The Clerk of the Court will provide 18 Plaintiff with certified copies of the Complaint and summons for use in serving Defendant 19 Terronez. Upon receipt of this “IFP Package,” Plaintiff must complete the USM Form 285 20 as completely and accurately as possible, include an address where Defendant may be 21 found and/or subject to service pursuant to Civil Local Rule 4.1(c), and return the USM 22 Form 285 to the U.S. Marshals Service according to the instructions the Clerk of the Court 23 provides in the letter accompanying the IFP Package; 24 (5) ORDERS the U.S. Marshals Service to serve a copy of the Complaint and 25 summons upon Defendant Terronez as directed by Plaintiff on USM Form 285. Costs of 26 service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 27 4(c)(3); 28 /// 6 23-CV-1403 JLS (DEB) 1 (6) ORDERS Defendant Terronez, once served, to reply to Plaintiff’s Complaint 2 and any subsequent pleading Plaintiff files in this matter in which Defendant is named as 3 a party within the time provided by the applicable provisions of Federal Rules of Civil 4 Procedure 12(a) and 15(a)(3). 5 defendants may occasionally be permitted to “waive the right to reply to any action brought 6 by a prisoner confined in any jail, prison, or other correctional facility under section 1983,” 7 once the Court has conducted its sua sponte screening, they are required to respond); and 8 (7) See 42 U.S.C. § 1997e(g)(2) (providing that, while ORDERS Plaintiff, after service has been effected by the U.S. Marshals 9 Service, to serve upon Defendant Terronez—or, if appearance has been entered by counsel, 10 upon Defendant Terronez’s counsel—a copy of every further pleading, motion, or other 11 document submitted for the Court’s consideration pursuant to Federal Rule of Civil 12 Procedure 5(b). Plaintiff must include with every original document sought to be filed with 13 the Clerk of the Court (1) a certificate stating the manner in which a true and correct copy 14 of that document has been served on Defendant Terronez or her counsel, and (2) the date 15 of that service. See S.D. Cal. CivLR 5.2. Any document received by the Court that has 16 not been properly filed with the Clerk of the Court or which fails to include a certificate of 17 service upon Defendant Terronez, or her counsel, may be disregarded. 18 19 IT IS SO ORDERED. Dated: August 8, 2023 20 21 22 23 24 25 26 27 28 7 23-CV-1403 JLS (DEB)
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