Carroll v. California Department of Corrections ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ABONILICO LAMAR CARROLL, Case No.: 19-cv-2126-BAS-KSC 11 CDCR #BK-9830, ORDER: 12 Plaintiff, (1) GRANTING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS [ECF No. 3]; 14 CALIFORNIA DEPARTMENT OF CORRECTIONS; DONOVAN STATE (2) DISMISSING DEFENDANTS; 15 PRISON; C/O MILLER; C/O AND WRIGHT, 16 (3) DIRECTING U.S. MARSHAL TO Defendants. EFFECT SERVICE OF 17 COMPLAINT PURSUANT TO 28 U.S.C. § 1915(d) AND Fed. R. 18 Civ. P. 4(c)(3) 19 20 Abonilico Carroll (“Plaintiff”) is currently incarcerated at the California Institution 21 for Men (“CIM”) in Chino, California. He is proceeding pro se and has filed a civil rights 22 Complaint pursuant to 42 U.S.C. § 1983. (See Compl, ECF No. 1.) Plaintiff alleges that 23 his constitutional rights were violated when he was previously housed at the Richard J. 24 Donovan Correctional Facility (“RJD”) in 2017. (See id.) 25 Plaintiff did not prepay the $400 civil filing fee required by 28 U.S.C. § 1914(a) at 26 the time of filing; instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP 27 Motion”) pursuant to 28 U.S.C. § 1915(a). (IFP Mot., ECF No. 3.) 28 1 I. IFP MOTION 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); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 9 regardless of whether his action is ultimately dismissed. See Bruce v. Samuels, __ S. Ct. 10 __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015); 11 28 U.S.C. § 1915(b)(1) & (2). 12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6- 14 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 15 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 16 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 17 in the account for the past six months, or (b) the average monthly balance in the account 18 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 19 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner 20 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 21 any month in which his account exceeds $10, and forwards those payments to the Court 22 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. 23 In support of his IFP Motion and in accordance with Local Civil Rule 3.2, Plaintiff 24 has submitted a copy of his Prison Certificate attesting to his balances and deposits over 25 the six-month period preceding the filing of his Complaint. (See IFP Mot. at 4.) This 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 statement shows that Plaintiff has had no money in his trust account for the six months 2 preceding the filing of this action, and that he had a zero balance at the time of filing. (See 3 IFP Mot. a 4.) 4 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 3) and 5 declines to “exact” any initial filing fee because his trust account statement shows he “has 6 no means to pay it.” See Bruce, 136 S. Ct. at 630; see also 28 U.S.C. § 1915(b)(4) 7 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action or 8 appealing a civil action or criminal judgment for the reason that the prisoner has no assets 9 and no means by which to pay the initial partial filing fee.”). The Court further DIRECTS 10 the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”) to 11 collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward 12 them to the Clerk of the Court pursuant to the installment payment provisions set forth in 13 28 U.S.C. § 1915(b)(1). 14 II. SCREENING 15 A. Standard of Review 16 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 17 answer screening which the Court conducts sua sponte pursuant to 28 U.S.C. § 1915(e)(2) 18 and § 1915A(b). Under these statutes, the Court must dismiss a prisoner’s IFP complaint, 19 or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages 20 from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 21 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 22 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is 23 ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of 24 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler 25 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 26 “The standard for determining whether a plaintiff has failed to state a claim upon 27 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 28 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 3 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 4 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 5 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 6 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 7 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 8 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 9 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 10 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 11 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 12 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 13 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 14 B. Plaintiff’s Allegations 15 In August of 2017, Plaintiff was “released from UCSD Hospital” after having 16 “reconstructive surgery.” (Compl. at 2.) Plaintiff claims he was “purposely housed at the 17 top tier” when he returned to RJD even though he could “barely walk.” (Id.) Plaintiff was 18 “supposed to be housed in the infirmary” but was instead housed in general population. 19 (Id. at 4.) 20 Plaintiff informed Defendants Wright and Miller that he “couldn’t climb up top tier 21 stairs because [he] had surgery” and could “hardly walk.” (Id. at 5.) Plaintiff claims 22 Wright and Miller “threatened” him that if he “didn’t go lock up [he] was going to be 23 placed in the hole.” (Id.) He further claims both Wright and Miller thought his “demise 24 was humorous or funny.” (Id.) Plaintiff was assisted up the stairs by other inmates. (See 25 id.) However, when he tried to “go down stairs” he fell down the “whole flight of stairs 26 down to the bottom and injured [his] shoulder, legs, back, neck, and bang[ed] [his] head 27 hard on concrete [he] passed out and was transported by ambulance to Central Health.” 28 (Id.) 1 Plaintiff seeks injunctive relief, as well as compensatory and punitive damages. (Id. 2 at 7.) 3 C. Defendants CDCR and RJD 4 First, to the extent Plaintiff includes the CDCR and “Donovan State Prison” as 5 parties, his Complaint fails to state any claim against these Defendants upon which § 1983 6 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b)(1). 7 Neither the CDCR nor RJD are “persons” subject to suit under § 1983. See Hale v. 8 State of Ariz., 993 F.2d 1387, 1398-99 (9th Cir. 1993) (holding that a state department of 9 corrections is an arm of the state, and thus, not a “person” within the meaning of § 1983); 10 see also Anderson v. California, No. 3:16-CV-01172-LAB-JLB, 2016 WL 4127785, at *2 11 (S.D. Cal. Aug. 3, 2016) (sua sponte dismissing both CDCR and RJD pursuant to 28 U.S.C. 12 § 1915(e)(2) and § 1915A because neither are “persons” subject to § 1983 liability). 13 Thus, these Defendants are DISMISSED from this action for failing to state a claim. 14 D. Eighth Amendment Claims 15 However, as to Plaintiff’s remaining Eighth Amendment claims against Defendants 16 Miller and Wright , the Court finds that Plaintiff’s Complaint contains factual content 17 sufficient to survive the “low threshold” for proceeding past the sua sponte screening 18 required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), because it alleges Eighth Amendment 19 claims which are plausible on its face. See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 20 678; Estelle v. Gamble, 429 U.S. 97, 104 (1976) (prison officials’ deliberate indifference 21 to an inmate’s serious medical needs constitutes cruel and unusual punishment in violation 22 of the Eighth Amendment). 23 Accordingly, the Court will direct the U.S. Marshal to effect service upon 24 Defendants Miller and Wright on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers 25 of the court shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. 26 R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal 27 or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 28 U.S.C. § 1915.”). 1 III. CONCLUSION AND ORDER 2 For the reasons discussed, the Court: 3 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 4 (ECF No. 3); 5 2. DIRECTS 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 garnishing monthly 7 payments from his account in an amount equal to twenty percent (20%) of the preceding 8 month’s income and forwarding those payments to the Clerk of the Court each time the 9 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). (all payments shall 10 be clearly identified by the name and case number assigned to this action); 11 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz 12 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 13 4. DISMISSES Defendants California Department of Corrections and RJD for 14 failing to state a claim upon which relief may be granted and directs the Clerk of Court to 15 terminate these Defendants from the docket; 16 5. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 17 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for Defendants 18 Miller and Wright. In addition, the Clerk will provide Plaintiff with a certified copy of 19 this Order, a certified copy of his Complaint and the summons so that he may serve the 20 named Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 21 285s as completely and accurately as possible, include an address where each named 22 Defendant may be found and/or subject to service pursuant to Local Civil Rule 4.1c. 23 and return them to the United States Marshal according to the instructions the Clerk 24 provides in the letter accompanying his IFP package; 25 6. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 26 upon the named Defendants as directed by Plaintiff on the USM Form 285s provided to 27 him, with all costs of that service to be advanced by the United States pursuant to 28 U.S.C. 28 § 1915(d) and Fed. R. Civ. P. 4(c)(3); 1 7. ORDERS the named and served Defendants to reply to Plaintiffs Complaint 2 || within the time provided by the applicable provisions of Federal Rule of Civil Procedure 3 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to 4 || “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or 5 || other correctional facility under section 1983,” once the Court has conducted its sua sponte 6 ||screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a 7 ||preliminary determination based on the face on the pleading alone that Plaintiff has a 8 || “reasonable opportunity to prevail on the merits,” the defendant is required to respond); 9 || and 10 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 11 ||}serve upon the named Defendants, or, if appearance has been entered by counsel, upon 12 ||Defendants’ counsel, a copy of every further pleading, motion, or other document 13 |}submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 14 ||include with every original document he seeks to file with the Clerk of the Court, a 15 ||certificate stating the manner in which a true and correct copy of that document has been 16 served on Defendants or their counsel, and the date of that service. See S.D. Cal. 17 ||CivLR 5.2. Any document received by the Court which has not been properly filed with 18 Clerk or which fails to include a Certificate of Service upon Defendants may be 19 || disregarded. 20 IT IS SO ORDERED. 71 f □ 22 || DATED: January 16, 2020 ( ill 4 (Sypha A { 23 United States District Judge 24 25 26 27 28 7