Tyler v. Salas

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 KEVIN TYLER, Case No. 20cv888-MMA (MSB)

10 Plaintiff, ORDER GRANTING MOTION TO 11 vs. PROCEED IN FORMA PAUPERIS;

12 F. SALAS, et al., [Doc. No. 2] 13 Defendants. DIRECTING U.S. MARSHAL TO 14 EFFECT SERVICE OF COMPLAINT 15 AND SUMMONS PURSUANT TO 28 U.S.C. § 1915(d) AND 16 Fed. R. Civ. P. 4(c)(3) 17 18 Plaintiff Kevin Tyler, currently incarcerated at the California State Prison – 19 Sacramento (“CSP-SAC”) located in Represa, California, has filed a civil rights 20 complaint pursuant to 42 U.S.C. § 1983. Plaintiff, represented by counsel, did not prepay 21 the civil filing fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; instead, 22 he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 23 See Doc. No. 2. Plaintiff alleges he was subjected to excessive force in violation of his 24 Eighth Amendment rights when he was previously housed at the Richard J. Donovan 25 Correctional Facility (“RJD”) in San Diego, California. See Doc. No. 1 at 2-6. 26 I. Motion to Proceed IFP 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is 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). However, 4 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in 5 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 6 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 7 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 8 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 10 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 11 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 12 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 13 trust account statement, the Court assesses an initial payment of 20% of (a) the average 14 monthly deposits in the account for the past six months, or (b) the average monthly 15 balance in the account for the past six months, whichever is greater, unless the prisoner 16 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 17 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 18 preceding month’s income, in any month in which his account exceeds $10, and forwards 19 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 20 1915(b)(2); Bruce, 136 S. Ct. at 629. 21 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 22 Statement Report as well as a Prison Certificate completed by an accounting officer at 23 CSP-SAC. See ECF No. 2 4; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 24 F.3d at 1119. These statements show that Plaintiff has carried an average monthly 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed 28 1 balance of $131.30 and had $190.83 in average monthly deposits to his account over the 2 6-month period immediately preceding the filing of his Complaint. In addition, Plaintiff 3 had $35.21 available balance on the books at the time of filing. (See ECF No. 2 at 4.) 4 Based on this accounting, the Court GRANTS Plaintiff’s Motion to Proceed IFP and 5 assesses his initial partial filing fee to be $38.17 pursuant to 28 U.S.C. § 1915(b)(1). 6 The Court will direct the Secretary of the CDCR, or his designee, to collect the 7 initial $38.17 fee assessed only if sufficient funds are available in Plaintiff’s account at 8 the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event 9 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or 10 criminal judgment for the reason that the prisoner has no assets and no means by which to 11 pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 12 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a 13 prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds available 14 to him when payment is ordered.”). The remaining balance of the $350 total fee owed in 15 this case must be collected by the agency having custody of the prisoner and forwarded to 16 the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2). 17 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 18 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a 19 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 20 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 21 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 22 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 23 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 24 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 25 the targets of frivolous or malicious suits need not bear the expense of responding.’” 26 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 27 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 28 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); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 5 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 7 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, 8 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 9 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 11 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 12 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 13 relief [is] ... a context-specific task that requires the reviewing court to draw on its 14 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 15 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 16 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 17 (9th Cir. 2009). 18 As currently pleaded, the Court finds Plaintiff’s Complaint contains “sufficient 19 factual matter, accepted as true,” to state Eighth Amendment claims for relief that are 20 “plausible on its face,” Iqbal, 556 U.S. at 678, and therefore, sufficient to survive the 21 “low threshold” set for sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 22 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; Hudson v. McMillian, 23 503 U.S. 1, 5 (1992) (unnecessary and wanton infliction of pain violates the Cruel and 24 Unusual Punishments Clause of the Eighth Amendment); Wilkins v. Gaddy, 559 U.S. 34, 25 37 (2010) (per curiam) (for claims arising out of the use of excessive physical force, the 26 issue is “whether force was applied in a good-faith effort to maintain or restore discipline, 27 or maliciously and sadistically to cause harm.”) (citing Hudson, 503 U.S. at 7). 28 Therefore, the Court will direct the U.S. Marshal to effect service of summons 1 Plaintiff’s Complaint on his behalf. See 28 U.S.C. § 1915(d) (“The officers of the court 2 shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 3 4(c)(3) (“[T]he court may order that service be made by a United States marshal or 4 deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis under 28 5 U.S.C. § 1915.”). 6 III. Conclusion and Order 7 For the reasons explained, the Court: 8 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. 9 § 1915(a); 10 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 11 Plaintiff’s trust account the $38.17 initial filing fee assessed, if those funds are available 12 at the time this Order is executed, and to forward whatever balance remains of the full 13 $350 owed in monthly payments in an amount equal to twenty percent (20%) of the 14 preceding month’s income to the Clerk of the Court each time the amount in Plaintiff’s 15 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE 16 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 17 ACTION. 18 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph 19 Diaz, Acting Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 20 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (Doc. 21 No. 1) and forward it to Plaintiff’s counsel along with a blank U.S. Marshal Form 285 for 22 each Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of this 23 Order, certified copies of his Complaint, and the summons so that he may serve the 24 Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the USM Form 25 285s as completely and accurately as possible, include an address where each named 26 Defendant may be found and/or subject to service pursuant to S.D. Cal. CivLR 4.1c., and 27 return them to the United States Marshal according to the instructions the Clerk provides 28 in the letter accompanying his IFP Package. 1 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 2 ||}upon the Defendants as directed by Plaintiff on the USM Form 285s provided to him. All 3 || costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); 4 || Fed. R. Civ. P. 4(c)(3). 5 6. ORDERS Defendants, once they have been served, to reply to Plaintiff’ □ 6 || Complaint within the time provided by the applicable provisions of Federal Rule of Civil 7 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be 8 || permitted to “waive the right to reply to any action brought by a prisoner confined in any 9 prison, or other correctional facility under section 1983,” once the Court has 10 || conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), 11 || and thus, has made a preliminary determination based on the face on the pleading alone 12 || that Plaintiff has a “reasonable opportunity to prevail on the merits,” the Defendants are 13 required to respond). 14 7. ORDERS Plaintiff, after service has been effectuated by the U.S. Marshal, 15 || to serve upon Defendants, or if appearance has been entered by counsel, upon 16 || Defendants’ counsel, a copy of every further pleading, motion, or other document 17 submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 18 |/include with every original document he seeks to file with the Clerk of the Court, a 19 || certificate stating the manner in which a true and correct copy of that document has been 20 || was served on Defendants or their counsel, and the date of that service. See S.D. Cal. 21 ||CivLR 5.2. Any document received by the Court which has not been properly filed with 22 ||the Clerk or which fails to include a Certificate of Service upon the Defendant, or his 23 || counsel, may be disregarded. 24 IT ISSO ORDERED. 25 ||DATED: May 14, 2020 J, thle - her 26 HON. MICHAEL M. ANELLO United States District Judge 28 1