Wilson v. Segovia ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LUCIOUS WILSON, Case No.: 3:19-cv-02254-LAB-MDD CDCR #V-94223, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS SGT. SEGOVIA; 15 [ECF No. 2]; AND C/O HULTZ 16 C/O DEMESCI, (2) DIRECTING U.S. MARSHAL TO 17 Defendants. EFFECT SERVICE OF COMPLAINT AND SUMMONS PURSUANT TO 18 28 U.S.C. § 1915(d) AND 19 Fed. R. Civ. P. 4(c)(3) 20 21 Lucious Wilson (“Plaintiff”), currently incarcerated at the California Correctional 22 Institution (“CCI”) located in Tehachapi, California, has filed a civil rights complaint 23 pursuant to 42 U.S.C. § 1983. Plaintiff did not prepay the civil filing fee required by 28 24 U.S.C. § 1914(a) when he filed his Complaint; instead, he filed a Motion to Proceed In 25 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). Plaintiff alleges 26 he was subjected to excessive force in violation of his Eighth Amendment rights when he 27 was previous housed at the Richard J. Donovan Correctional Facility (“RJD”). (ECF No 28 1 at 1, 3-4.) 1 I. Motion to Proceed IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, 7 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in 8 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 9 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 10 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 11 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly 18 balance in the account for the past six months, whichever is greater, unless the prisoner 19 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 20 custody of the prisoner then collects subsequent payments, assessed at 20% of the 21 preceding month’s income, in any month in which his account exceeds $10, and forwards 22 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 23 Bruce, 136 S. Ct. at 629. 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $50. See 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 28 1 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 2 Statement Report. See ECF No. 2 at 8; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; 3 Andrews, 398 F.3d at 1119. His CDCR Inmate Statement Report shows he has a current 4 available balance of $0.50 at the time of filing. See ECF No. 2 at 8. Therefore, the Court 5 GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), declines to exact any initial 6 filing fee because his prison certificates indicate he may have “no means to pay it,” 7 Bruce, 136 S. Ct. at 629, and directs the Secretary of the California Department of 8 Corrections and Rehabilitation (“CDCR”), or their designee, to instead collect the entire 9 $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the 10 Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 11 § 1915(b)(1). 12 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 13 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a 14 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 15 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 16 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 17 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 18 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 19 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 20 the targets of frivolous or malicious suits need not bear the expense of responding.’” 21 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 22 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 23 “The standard for determining whether a plaintiff has failed to state a claim upon 24 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 25 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 26 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 27 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 28 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 1 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 2 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 3 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 4 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 5 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 6 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 7 relief [is] ... a context-specific task that requires the reviewing court to draw on its 8 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 9 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 10 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 11 (9th Cir. 2009). 12 As currently pleaded, the Court finds Plaintiff’s Complaint contains “sufficient 13 factual matter, accepted as true,” to state Eighth Amendment claims for relief that are 14 “plausible on its face,” Iqbal, 556 U.S. at 678, and therefore, sufficient to survive the 15 “low threshold” set for sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 16 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; Hudson v. McMillian, 17 503 U.S. 1, 5 (1992) (unnecessary and wanton infliction of pain violates the Cruel and 18 Unusual Punishments Clause of the Eighth Amendment); Wilkins v. Gaddy, 559 U.S. 34, 19 37 (2010) (per curiam) (for claims arising out of the use of excessive physical force, the 20 issue is “whether force was applied in a good-faith effort to maintain or restore discipline, 21 or maliciously and sadistically to cause harm.”) (citing Hudson, 503 U.S. at 7). 22 Therefore, the Court will direct the U.S. Marshal to effect service of summons 23 Plaintiff’s Complaint on his behalf. See 28 U.S.C. § 1915(d) (“The officers of the court 24 shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 25 4(c)(3) (“[T]he court may order that service be made by a United States marshal or 26 deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis under 28 27 U.S.C. § 1915.”). 28 / / / 1 III. Conclusion and Order 2 For the reasons explained, the Court: 3 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 4 (ECF No. 2). 5 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 6 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly 7 payments from the account in an amount equal to twenty percent (20%) of the preceding 8 month’s income and forward payments to the Clerk of the Court each time the amount in 9 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 10 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 11 TO THIS ACTION. 12 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph 13 Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 14 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 15 No. 1) and forward it to Plaintiff’s counsel along with a blank U.S. Marshal Form 285 for 16 each Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of this 17 Order, certified copies of his Complaint, and the summons so that he may serve the 18 Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the USM Form 19 285s as completely and accurately as possible, include an address where each named 20 Defendant may be found and/or subject to service pursuant to S.D. Cal. CivLR 4.1c., and 21 return them to the United States Marshal according to the instructions the Clerk provides 22 in the letter accompanying his IFP Package. 23 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 24 upon the Defendants as directed by Plaintiff on the USM Form 285s provided to him. All 25 costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. 26 R. Civ. P. 4(c)(3). 27 / / / 28 / / / 1 6. ORDERS Defendants, once they have been served, to reply to Plaintiff’s 2 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 3 || Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be 4 || permitted to “waive the right to reply to any action brought by a prisoner confined in any 5 ||jail, prison, or other correctional facility under section 1983,” once the Court has 6 || conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), 7 thus, has made a preliminary determination based on the face on the pleading alone 8 Plaintiff has a “reasonable opportunity to prevail on the merits,” the Defendants are 9 || required to respond). 10 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 11 serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’ 12 counsel, a copy of every further pleading, motion, or other document submitted for the 13 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 14 || original document he seeks to file with the Clerk of the Court, a certificate stating the 15 manner in which a true and correct copy of that document has been was served on 16 || Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any 17 document received by the Court which has not been properly filed with the Clerk or 18 || which fails to include a Certificate of Service upon the Defendant, or his counsel, may be 19 || disregarded. 20 IT IS SO ORDERED. 21 22 || Dated: December 10, 2019 / ut / 4 ( Ly MN yy 23 Hon. Larry A. Burns, Chief Judge United States District Court 25 26 27 28 6