Wyres v. Zhang ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TROY WYRES, Case No.: 3:19-cv-2050-WQH KSC CDCR #D-09424, 12 ORDER: Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS RONALD ZHANG, 15 [ECF No. 2] Defendant. 16 2) DISMISSING DEFENDANT CDCR 17 AND 18 19 3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF COMPLAINT 20 AND SUMMONS ON REMAINING 21 DEFENDANT PURSUANT TO 28 U.S.C. § 1915(d) AND 22 Fed. R. Civ. P. 4(c)(3) 23 24 25 Troy Wyres (“Plaintiff”), currently incarcerated at the Richard J. Donovan 26 Correctional Facility (“RJD”) located in San Diego, California, and proceeding pro se, has 27 filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. 28 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when he filed 1 his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 2 to 28 U.S.C. § 1915(a) (ECF No. 2). 3 I. Motion to Proceed IFP 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 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a 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). However, 9 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in 10 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); 11 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their 12 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 13 F.3d 844, 847 (9th Cir. 2002). 14 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 15 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6- 16 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 17 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 18 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 19 in the account for the past six months, or (b) the average monthly balance in the account 20 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 21 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner 22 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 23 any month in which his account exceeds $10, and forwards those payments to the Court 24 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. 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 In support of his IFP Motion, Plaintiff has submitted a Prison Certificate completed 2 by a trust account specialist at RJD. See ECF No. 3 at 1; 28 U.S.C. § 1915(a)(2); S.D. Cal. 3 CivLR 3.2; Andrews, 398 F.3d at 1119. The trust account official attests that Plaintiff had 4 average monthly deposits of $30.00, and maintained an average monthly balance of $36.52 5 in his account during the 6-months preceding suit; but he carried a current available balance 6 of zero at the time of filing. See ECF No. 3 at 1. 7 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), 8 declines to exact the $7.30 partial initial filing fee assessed because his prison certificate 9 indicates he currently has “no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the 10 Secretary of the CDCR, or his designee, to instead collect the entire $350 balance of the 11 filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk pursuant to 28 12 U.S.C. § 1915(b)(1). 13 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 14 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a 15 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 16 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, 17 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who 18 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 19 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 20 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 21 the targets of frivolous or malicious suits need not bear the expense of responding.’” 22 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 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 F.3d 26 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 27 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 relief 7 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 8 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 9 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 10 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 11 A. Defendant CDCR 12 To the extent that Plaintiff seeks to name the California Department of Corrections 13 and Rehabilitation (“CDCR”) as a party, he fails to state a claim upon which § 1983 relief 14 can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b)(1); Watison, 668 F.3d at 15 1112; Wilhelm, 680 F.3d at 1121. 16 The CDCR is not a “person” subject to suit under § 1983. See Hale v. State of 17 Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (holding that a state department of 18 corrections is an arm of the state, and thus, not a “person” within the meaning of § 1983). 19 Therefore, Defendant CDCR is DISMISSED from this action. 20 B. Eighth Amendment claims 21 As to the remaining Defendant, the Court finds that Plaintiff’s Complaint contains 22 factual content sufficient to survive the “low threshold” for proceeding past the sua sponte 23 screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), because it alleges Eighth 24 Amendment claims which are plausible on its face. See Wilhelm, 680 F.3d at 1123; Iqbal, 25 556 U.S. at 678; Estelle v. Gamble, 429 U.S. 97, 104 (1976) (prison officials’ deliberate 26 indifference to an inmate’s serious medical needs constitutes cruel and unusual punishment 27 in violation of the Eighth Amendment). 28 1 Accordingly, the Court will direct the U.S. Marshal to effect service upon the named 2 Defendant on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall 3 issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 4(c)(3) 4 (“[T]he court may order that service be made by a United States marshal or deputy marshal 5 ... if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 6 III. Conclusion and Order 7 For the reasons discussed, the Court: 8 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 9 (ECF No. 2); 10 2. DIRECTS the Secretary of the CDCR, or his designee, to garnish the $350 11 filing fee owed in this case by collecting monthly payments from his account in an amount 12 equal to twenty percent (20%) of the preceding month’s income and forwarding them to 13 the Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28 14 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE 15 NAME AND NUMBER ASSIGNED TO THIS ACTION. 16 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, 17 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 18 4. DISMISSES Defendant California Department of Corrections and 19 Rehabilitation for failing the state a claim upon which relief may be granted; 20 5. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (Doc. 21 No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for Defendant 22 Zhang. In addition, the Clerk will provide Plaintiff with a certified copy of this Order, a 23 certified copy of his Complaint and the summons so that he may serve the named 24 Defendant. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s as 25 completely and accurately as possible, include an address where each named Defendant 26 may be found and/or subject to service pursuant to S.D. Cal. CivLR 4.1c. and return them 27 to the United States Marshal according to the instructions the Clerk provides in the letter 28 accompanying his IFP package; 1 6. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 2 ||upon Defendant Zhang as directed by Plaintiff on the USM Form 285s provided to him. 3 || All costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); 4 || Feb. R. Civ. P. 4(c)(3); 5 7. ORDERS the named and served Defendant to reply to Plaintiff's Complaint 6 || within the time provided by the applicable provisions of Federal Rule of Civil Procedure 7 || 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to 8 || “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or 9 || other correctional facility under section 1983,” once the Court has conducted its sua sponte 10 ||screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a 11 |/preliminary determination based on the face on the pleading alone that Plaintiff has a 12 || “reasonable opportunity to prevail on the merits,” the defendant is required to respond); 13 |} and 14 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 15 ||serve upon the named Defendant, or, if appearance has been entered by counsel, upon 16 ||Defendant’s 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 Defendant or his counsel, and the date of that service. See S.D. CAL. CIVLR 21 Any document received by the Court which has not been properly filed with the Clerk 22 which fails to include a Certificate of Service upon Defendants may be disregarded. 23 IT IS SO ORDERED. 24 || Dated: December 30, 2019 BME: Me Z. A a 25 Hon. William Q. Hayes %6 United States District Court 27 28 6