Himes v. Hadjadj ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 RODERICK HIMES, Case No.: 3:19-cv-2216-JAH-MSB CDCR #V-34446, 11 ORDER: Plaintiff, 12 vs. 1) GRANTING MOTION TO 13 PROCEED IN FORMA PAUPERIS FABRICE HADJADJ, 14 [ECF No. 2] 15 Defendant. AND 16 2) DIRECTING U.S. MARSHAL TO 17 EFFECT SERVICE OF COMPLAINT 18 AND SUMMONS PURSUANT TO 28 U.S.C. § 1915(d) AND 19 Fed. R. Civ. P. 4(c)(3) 20 21 Roderick Himes (“Plaintiff”), currently incarcerated at the Richard J. Donovan 22 Correctional Facility (“RJD”), California, and proceeding pro se, has filed a civil rights 23 complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff alleges 24 Defendant Hadjadj violated his First Amendment rights by failing to provide him with a 25 kosher meal. (Id.) 26 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when 27 he filed his Complaint; instead, he has filed a Motion to Proceed In Forma Pauperis 28 (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 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 as well as a Prison Certificate completed by a trust account official. See 3 ECF No. 3 at 1-3; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 4 1119. These documents show Plaintiff carried an average monthly balance of $54.43 and 5 maintained $37.67 in average monthly deposits to his trust account for the 6-months 6 preceding the filing of this action. See ECF No. 3 at 1. 7 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 8 assesses his initial partial filing fee to be $10.89 pursuant to 28 U.S.C. § 1915(b)(1). The 9 Court further directs the Secretary of the CDCR, or his designee, to collect this initial 10 filing fee only if sufficient funds are available in Plaintiff’s account at the time this Order 11 is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 12 prohibited from bringing a civil action or appealing a civil action or criminal judgment 13 for the reason that the prisoner has no assets and no means by which to pay the initial 14 partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 15 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case 16 based solely on a “failure to pay ... due to the lack of funds available to him when 17 payment is ordered.”). The remaining balance of the $350 total fee owed in this case must 18 be collected by the agency having custody of the prisoner and forwarded to the Clerk of 19 the Court pursuant to 28 U.S.C. § 1915(b)(2). 20 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 21 A. Standard of Review 22 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a 23 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 24 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 25 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 26 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 27 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 28 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 1 the targets of frivolous or malicious suits need not bear the expense of responding.’” 2 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 3 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 4 “The standard for determining whether a plaintiff has failed to state a claim upon 5 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 6 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 7 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 8 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 9 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 10 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 11 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 13 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 14 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 15 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 16 relief [is] ... a context-specific task that requires the reviewing court to draw on its 17 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 18 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 19 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 20 (9th Cir. 2009). 21 Finally, in deciding whether Plaintiff has stated a plausible claim for relief, the 22 Court may consider exhibits attached to his Complaint. See Fed. R. Civ. P. 10(c) (“A 23 copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all 24 purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 25 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 26 426 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may 27 be considered” in ruling on a Rule 12(b)(6) motion to dismiss.)). 28 1 B. Religion claims 2 As currently pleaded, the Court finds Plaintiff’s Complaint contains “sufficient 3 factual matter, accepted as true,” to allege First Amendment free exercise claims for 4 relief that are “plausible on its face,” Iqbal, 556 U.S. at 678, and therefore, sufficient to 5 survive the “low threshold” for proceeding past the sua sponte screening required by 28 6 U.S.C. §§ 1915(e)(2) and 1915A(b).2 See Wilhelm, 680 F.3d at 1123; Walker v. Beard, 7 789 F.3d 1125, 1134, 1138 (9th Cir. 2015) (discussing pleading standards for prisoner’s 8 free exercise claims under the First Amendment). 9 Therefore, the Court will order the U.S. Marshal to effect service upon Defendants 10 on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and 11 serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 4(c)(3) (“[T]he 12 court may order that service be made by a United States marshal or deputy marshal ... if 13 the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 14 III. Conclusion and Order 15 For the reasons explained, the Court: 16 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 17 (ECF No. 2). 18 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 19 Plaintiff’s trust account the $10.89 initial filing fee assessed, if those funds are available 20 at the time this Order is executed, and to forward whatever balance remains of the full 21 $350 owed in monthly payments in an amount equal to twenty percent (20%) of the 22 preceding month’s income to the Clerk of the Court each time the amount in Plaintiff’s 23 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE 24 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 25 26 27 2 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring.” Teahan v. 28 1 ACTION. 2 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph 3 Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 4 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 5 No. 1) and to forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each 6 named Defendant. In addition, the Clerk will provide Plaintiff with certified copies of this 7 Order, his Complaint, and the summons so that he may serve this Defendant. Upon 8 receipt of this “IFP Package,” Plaintiff must complete the USM Form 285s as completely 9 and accurately as possible, include an address where each named Defendant may be 10 found and/or subject to service pursuant to S.D. Cal. CivLR 4.1c., and return them to the 11 United States Marshal according to the instructions the Clerk provides in the letter 12 accompanying his IFP package. 13 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 14 upon the Defendant as directed by Plaintiff on the USM Form 285s provided to him. All 15 costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. 16 R. Civ. P. 4(c)(3). 17 6. ORDERS Defendant, once he has been served, to reply to Plaintiff’s 18 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 19 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be 20 permitted to “waive the right to reply to any action brought by a prisoner confined in any 21 jail, prison, or other correctional facility under section 1983,” once the Court has 22 conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), 23 and thus, has made a preliminary determination based on the face on the pleading alone 24 that Plaintiff has a “reasonable opportunity to prevail on the merits,” defendant is 25 required to respond). 26 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 27 serve upon Defendant, or if appearance has been entered by counsel, upon Defendant’s 28 counsel, a copy of every further pleading, motion, or other document submitted for the 1 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 2 || original document he seeks to file with the Clerk of the Court, a certificate stating the 3 ||manner in which a true and correct copy of that document has been was served on 4 || Defendant or his counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any 5 document received by the Court which has not been properly filed with the Clerk or 6 || which fails to include a Certificate of Service upon the Defendant, or his counsel, may be 7 || disregarded. 8 IT IS SO ORDERED. 9 10 Dated: December 20, 2019 VU 1] Hn. John A. Houston 12 Jnited States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7