Paris v. Pollard

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 |} MICHAEL ANDREW PARIS, Case No.: 3:22-cv-0565-JO (JLB) 12 CDCR #G-03234, gs ORDER: (1) GRANTING REQUEST Plaintiff, 13 TO PROCEED IN FORMA 14 VS. PAUPERIS AND (2) DIRECTING U.S. MARSHAL TO EFFECT 15 || MARCUS POLL ARD, Warden, SERVICE OF COMPLAINT AND 16 SUMMONS PURSUANT TO 28 Defendant.) J.$.C. § 1915(d) AND FED. R. CIV. P. 17 4(c)(3) 18 19 20 Plaintiff Michael Andrew Paris (“Paris” or “Plaintiff’) is an inmate currentl 21 ||incarcerated at Richard J. Donovan Correctional Facility (“RJD”). Proceeding pro se, h 22 \|filed a civil rights action pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff claim 23 \|Defendant, former RJD Warden Marcus Pollard, violated his Eighth Amendment right 24 when he failed take adequate measures to protect Plaintiffs health and safety during 25 ||COVID-19 outbreak at RJD in December 2020. Jd. at 3. Plaintiff has also filed a motio 26 ||to proceed in forma pauperis (“IFP”). ECF No. 2. For the reasons stated below, the Cout 27 || grants Plaintiff's IFP motion. 28 1 1. 2 MOTION TO PROCEED IFP 3 A party may initiate a civil action without prepaying the required filing fee if the 4 || Court grants leave to proceed in forma pauperis based on indigency. 28 U.S.C. § 1915(a); 5 || Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Plaintiffs who wish to proceed 6 ||IFP must establish their inability to pay by filing an affidavit regarding their income and 7 || assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). For prisoners to 8 establish inability to pay, the Prison Litigation Reform Act requires the submission of a 9 || “certified copy of the [prisoner’s] trust fund account statement (or institutional equivalent) 10 || for... the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 11 || § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). Moreover, prisoners 12 || who proceed IFP must repay the entire fee in installments regardless of whether their action 13 |/is ultimately dismissed. 28 U.S.C. § 1915(b)(2); Bruce v. Samuels, 577 U.S. 82, 84 (2016). 14 In support of his IFP Motion, Plaintiff has submitted a copy of his trust account 15 statement as well as an official certificate from a prison official verifying the accuracy of 16 account statement. See ECF No. 3 at 1-4. These statements show Plaintiff maintained 17 || an average monthly balance of $16.94 and had $19.80 in average monthly deposits credited 18 || to his account over the 6-month period immediately preceding the filing of his Complaint. 19 || His available balance as of October 12, 2021, was $3.24. ECF No. 3 at 3. The Court finds 20 || that Plaintiff has established an inability to pay the required $350 filing fee and GRANTS 21 Plaintiffs Motion to Proceed IFP (ECF No. 2). Plaintiff will be required to repay this 22 amount installments collected from his trust account as set forth in 28 U.S.C. § 1915(b)(2). 23 II. 24 SCREENING PURUSANT TO 28 U.S.C. § 1915(e)(2)(B) 25 Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), the Court must screen a 26 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous, 27 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 28 || Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 1 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff ha 2 || failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is th 3 ||same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim. 4 || Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that 5 \|complaint “contain sufficient factual matter . . . to state a claim to relief that is plausible o 6 |lits face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted) 7 || Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). While detailed factual allegation 8 not required, “[t]hreadbare recitals of the elements of a cause of action, supported b 9 |!mere conclusory statements, do not suffice” to state a claim. Iqbal, 556 U.S. at 678. Th 10 ||‘““mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed m 11 ||accusation[s]” fall short of meeting this plausibility standard. Jd.; see also Moss v. U.S 12 || Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 13 Here, the Court finds Plaintiffs Complaint plausibly alleged an Eighth Amendmer 14 ||claim against Pollard for deliberate indifference to Plaintiffs safety. Because hi 15 |\allegations are sufficient to meet the “low threshold” for proceeding past the sua spont 16 screening stage, see Wilhelm, 680 F.3d at 1123, the Court will direct the U.S. Marshal t 17 |leffect service of a summons and Plaintiff's Complaint. See 28 U.S.C. § 1915(d); Fed. R 18 || Civ. P. 4(c)(3) (‘[T]he court may order that service be made by a United States marshal c 19 deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 2 20 || U.S.C. § 1915.”).! 21 Il. 22 CONCLUSION AND ORDER 23 For the reasons set forth above, the Court: 24 1. GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 2) pursuant to 2 25 ©) 27 ||! Plaintiff is cautioned that “the swa sponte screening and dismissal procedure is cumulativ 28 of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] ma choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 1 |}U.S.C. § 1915(a). 2 2. ORDERS the Secretary of the CDCR, or her designee, to collect from 3 || Plaintiffs prison trust account the $350 filing fee owed in this case by collecting monthly 4 payments from the account in an amount equal to twenty percent (20%) of the preceding 5 ||month’s income and forward payments to the Clerk of the Court each time the amount in 6 ||the account exceeds $ 10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 7 ||SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 8 || THIS ACTION. 9 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 10 || Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 11 4. DIRECTS the Clerk to issue a summons as to Plaintiff's Complaint (ECF No. 12 and to forward it to Plaintiff along with a blank U.S. Marshal Form 285 for the named 13 || Defendant. In addition, the Clerk will provide Plaintiff with certified copies of this Order, 14 Complaint, and the summons so that he may serve the Defendant. Upon receipt of this 15 ||“IFP Package,” Plaintiff must complete the USM Form 285 as completely and accurately 16 ||as possible, include an address where the named Defendant may be found and/or subject 17 service pursuant to S.D. Cal. CivLR 4.1c., and return it to the United States Marshal 18 || according to the instructions the Clerk provides. 19 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 20 Defendant Pollard as directed by Plaintiff on the USM Form 285s provided, and to 21 || file executed waivers of personal service upon Defendant Pollard with the Clerk of Court 22 ||as soon as possible after its return. Should Defendant fail to return the U.S. Marshal’s 23 ||request for waiver of personal service within 90 days, the U.S. Marshal shall instead file 24 ||the completed Form USM 285 Process Receipt and Return with the Clerk of Court, include 25 ||the date the summons, Complaint and request for waiver was mailed to Defendant, and 26 indicate why service upon the party remains unexecuted. All costs of that service will be 27 ||advanced by the United States; however, if Defendant is located within the United States 28 fails, without good cause, to sign and return the waiver requested by the Marshal on 1 || Plaintiffs behalf, the Court will impose upon Defendant any expenses later incurred ir 2 |jmaking personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 3 6. ORDERS Defendant, once he has been served, to reply to Plaintiff’: 4 Complaint, and any subsequent pleading he may file in this matter in which they are namec 5 parties, within the time provided by the applicable provisions of Federal Rule of Civi! 6 ||Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (stating that while a defendant may 7 ||occasionally be permitted to “waive the right to reply to any action brought by a □□□□□□□□ 8 ||confined in any jail, prison, or other correctional facility under section 1983,” once the 9 }|Court has conducted its sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) anc 10 |}1915A(b), and thus, has made a preliminary determination based on the face on the 11 || pleading that Plaintiff has a “reasonable opportunity to prevail on the merits,” defendant is 12 required to respond). 13 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, tc 14 ||serve upon Defendant, or if appearance has been entered by counsel, upon Defendant 15 counsel, a copy of every further pleading, motion, or other document submitted for the 16 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 17 || original document he seeks to file with the Clerk of the Court, a certificate stating the 18 ||manner in which a true and correct copy of that document was served on Defendant or his 19 || counsel, and the date of that service. See S.D. Cal. CivLR 5.2. 20 IT ISSO ORDERED. 21 Dated: «(Ql 2Z Cy / 22 . Jinsook Ohta 73 nited States District Judge 24 25 26 27 28 5