(PC) Lake v. County of San Diego ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN HANS LAKE, Case No.: 3:19-cv-01558-MMA-RBM Booking No. 17136590, 12 ORDER GRANTING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS; vs. 14 [Doc. No. 2] COUNTY OF SAN DIEGO; GEORGE 15 BAILEY MEDICAL DIRECTOR; DIRECTING U.S. MARSHAL TO 16 Defendants. EFFECT SERVICE OF SUMMONS 17 AND COMPLAINT PURSUANT TO 28 U.S.C. § 1915(d) AND 18 Fed. R. Civ. P. 4(c)(3) 19 20 Plaintiff Steven Hans Lake, while detained at the San Diego County Sheriff 21 Department’s George Bailey Detention Facility (“GBDF”) located in San Diego, 22 California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. 23 § 1983. See Compl., Doc. No. 1. Plaintiff did not pay the fee required by 28 U.S.C. § 24 1914(a) when he filed his Complaint; instead he has filed a Motion to Proceed In Forma 25 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. 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); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 5 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 6 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 7 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 8 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 9 2002). 10 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 11 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 12 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 13 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 14 trust account statement, the Court assesses an initial payment of 20% of (a) the average 15 monthly deposits in the account for the past six months, or (b) the average monthly 16 balance in the account for the past six months, whichever is greater, unless the prisoner 17 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 18 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 19 preceding month’s income, in any month in which his account exceeds $10, and forwards 20 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 21 1915(b)(2); Bruce, 136 S. Ct. at 629. 22 In support of his IFP Motion, Plaintiff has submitted a copy of his San Diego 23 County Sheriff’s Department prison certificate attesting as to his deposits and balances 24 for the 6-month period preceding the filing of his Complaint. See Doc. No. 2 at 3; 28 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. Dec. 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed 28 1 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These statements 2 show Plaintiff had an average monthly deposit of $93.51 to his account, carried an 3 approximate average monthly balance of $.069, he had only a $4.10 available balance to 4 his credit at the time of filing. See Doc. No. 2 at 4. 5 Based on this accounting, the Court assesses an initial partial filing fee of $18.70 6 pursuant to 28 U.S.C. § 1915(a)(1) and (b)(1), but notes Plaintiff may have insufficient 7 funds with which to pay that initial fee at the time this Order issues. See 28 U.S.C. 8 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 9 civil action or appealing a civil action or criminal judgment for the reason that the 10 prisoner has no assets and no means by which to pay the initial partial filing fee.”); 11 Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) 12 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a 13 “failure to pay ... due to the lack of funds available to him when payment is ordered.”). 14 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 2), 15 declines to exact the initial filing fee assessed by this Order because his trust account 16 statements suggest he may have “no means to pay it,” Bruce, 136 S. Ct. at 629, and 17 instead directs the Watch Commander at the GBDF, or their designee, to collect the entire 18 $350 balance of the filing fee required by 28 U.S.C. § 1914 and to forward all payments 19 to the Clerk of the Court pursuant to the installment provisions set forth in 28 U.S.C. 20 § 1915(b)(1). 21 II. Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A 22 A. Standard of Review 23 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 24 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 25 statutes, the Court must review and sua sponte dismiss an IFP complaint, and any 26 complaint filed by a prisoner seeking redress from a governmental entity, or officer or 27 employee of a governmental entity, which is frivolous, malicious, fails to state a claim, or 28 seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. 2 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The 3 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need 4 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th 5 Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 6 2012)). 7 All complaints must contain “a short and plain statement of the claim showing that 8 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are 9 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 10 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 11 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 12 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 13 requires the reviewing court to draw on its judicial experience and common sense.” Id. 14 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 15 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 16 “The standard for determining whether a plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 19 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 20 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 21 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 22 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, 23 accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 24 678 (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 25 “When there are well-pleaded factual allegations, a court should assume their 26 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 27 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 28 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 1 allegations of material fact and must construe those facts in the light most favorable to 2 the plaintiff.”). However, while the court “ha[s] an obligation where the petitioner is pro 3 se, particularly in civil rights cases, to construe the pleadings liberally and to afford the 4 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 5 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 6 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 7 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 8 The Court finds Plaintiff’s Complaint contains factual allegations sufficient to 9 survive the “low threshold” for proceeding past the sua sponte screening required by 28 10 U.S.C. §§ 1915(e)(2) and 1915A(b) because it alleges Fourteenth Amendment due 11 process claims which are plausible on its face.2 See Wilhelm, 680 F.3d at 1123; Iqbal, 12 556 U.S. at 678; Bell v. Wolfish, 441 U.S. 520, 535 (1979) (Due Process Clause of the 13 Fourteenth Amendment prevents punishment of a pretrial detainee prior to an 14 adjudication of guilt); Gordon v. Cty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) 15 (inadequate medical care claims alleged by persons in pretrial custody “must be evaluated 16 under an objective deliberate indifference standard.”) (citing Castro, 833 F.3d at 1070). 17 Accordingly, the Court will direct the U.S. Marshal to effect service upon 18 Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court 19 shall issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 20 4(c)(3) (“[T]he court may order that service be made by a United States marshal or 21 22 23 2 The Court presumes, for purposes of screening only, that Plaintiff is a pretrial detainee at GBDF at the times he alleges to have been injured by Sheriff’s Department officials, and that therefore his claims arise 24 under the Fourteenth Amendment rather than the Eighth. See Castro v. Cty. of Los Angeles, 833 F.3d 25 1060, 1067-68 (9th Cir. 2016) (“Inmates who sue prison officials for injuries suffered while in custody may do so under the Eighth Amendment’s Cruel and Unusual Punishment Clause, or if not yet convicted, 26 under the Fourteenth Amendment’s Due Process Clause.”) (citing Bell, 441 U.S. at 535). “Under both clauses, the plaintiff must show that the … officials acted with ‘deliberate indifference.’” Id. at 1068. 27 Plaintiff is cautioned, however, that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [any individual defendant] may choose 28 1 deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 2 U.S.C. § 1915.”). 3 III. Conclusion and Orders 4 For the reasons explained, the Court: 5 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 6 (Doc. No. 2). 7 2. ORDERS the Watch Commander of the GBDF, or their designee, to collect 8 from Plaintiff’s trust account the $1.33 initial filing fee assessed, if those funds are 9 available at the time this Order is executed, and to forward whatever balance remains of 10 the full $350 owed in monthly payments in an amount equal to twenty percent (20%) of 11 the preceding month’s income to the Clerk of the Court each time the amount in 12 Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 13 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 14 THIS ACTION. 15 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 16 Commander, George Bailey Detention Facility, 446 Alta Road, San Diego, California 17 92158. 18 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (Doc. 19 No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each 20 named Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of 21 this Order, a certified copy of his Complaint and the summons so that he may serve these 22 Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s 23 as completely and accurately as possible, include an address where each named 24 Defendant may be found and/or subject to service, and return them to the United States 25 Marshal according to the instructions the Clerk provides in the letter accompanying his 26 IFP package. 27 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 28 upon the named Defendants as directed by Plaintiff on the USM Form 285s provided to 1 All costs of that service will be advanced by the United States. See 28 U.S.C. 2 1915(d); FED. R. Clv. P. 4(c)(3); 3 6. ORDERS Defendants, once they have been served, to reply to Plaintiff's 4 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 5 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be 6 || permitted to “waive the right to reply to any action brought by a prisoner confined in any 7 prison, or other correctional facility under section 1983,” once the Court has 8 || conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), 9 || and thus, has made a preliminary determination based on the face on the pleading alone 10 || that Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is 11 required to respond); and 12 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 13 ||serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’ 14 || counsel, a copy of every further pleading, motion, or other document submitted for the 15 || Court’s consideration pursuant to FED. R. CIv. P. 5(b). P laintiff must include with every 16 || original document he seeks to file with the Clerk of the Court, a certificate stating the 17 ||manner in which a true and correct copy of that document has been was served on 18 || Defendants or their counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. Any 19 ||document received by the Court which has not been properly filed with the Clerk or 20 || which fails to include a Certificate of Service upon Defendants may be disregarded. 21 IT IS SO ORDERED. 22 || DATE: September 24, 2019 et ht □□□ hipblr 73 HO . ICHAEL M. ANELLO United States District Judge 24 25 26 27 28 7 on ee