O'Brien v. Saha

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA KORY T. O’BRIEN, CDCR #AM-1378, Case No.: 19-CV-1957 JLS (JLB) 12 Plaintiff, ORDER: (1) GRANTING MOTION 13 vs. TO PROCEED IN FORMA PAUPERIS, AND (2) DIRECTING U.S. MARSHAL TO EFFECT SAJIB SAHA; DAVID CLAYTON; SERVICE PURSUANT TO 28 U.S.C. MARGARET DEEL, M.D., § 1915(d) AND FED. R. CIV. P. 4(c)(3) Defendants.

17 (ECF No. 2) 19 Plaintiff Kory T. O’Brien, proceeding pro se and incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Plaintiff did not prepay the $400 civil filing fee required by 28 U.S.C. § 1914(a) at the time of filing; instead, he has filed a Motion to Proceed in Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2 (“Mot.”).

25 MOTION TO PROCEED IN FORMA PAUPERIS 26 All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of / / / $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Prisoners who are granted leave to proceed IFP, however, remain obligated to pay the entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. ___, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether their action is ultimately dismissed. See 28 U.S.C. §§ 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

9 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King (“King”), 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. §§ 1915(b)(1), (4). The institution having custody of the prisoner then collects subsequent payments, assessed at 20% of the preceding month’s income, in any month in which his account exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.

20 In support of his IFP Motion, Plaintiff has submitted a copy of his California Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report as well as a Prison Certificate completed by an accounting officer at RJD. See ECF No. 3 at 1–5; see also 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; King, 398 F.3d at 1119. These statements show that Plaintiff has carried an average monthly balance of $95.62 and had In addition to the $350 statutory fee, civil litigants must pay an additional administrative 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 not apply to persons granted leave to proceed $100.60 in average monthly deposits to his account over the six-month period immediately preceding the filing of his Complaint and $10.92 available balance on the books at the time of filing. See ECF No. 3 at 1, 3. Based on this accounting, the Court GRANTS Plaintiff’s Motion and ASSESSES his initial partial filing fee to be $20.12 pursuant to 28 U.S.C. § 1915(b)(1).

6 Because Plaintiff’s available balance was insufficient to satisfy this initial fee at the time of filing, however, the Court will direct the Secretary of the CDCR, or his designee, to collect the initial $20.12 fee assessed only if sufficient funds are available in Plaintiff’s account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (“In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when payment is ordered”). The remaining balance of the $350 total fee owed in this case must be collected by the agency having custody of the prisoner and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).

18 SCREENING PURSUANT TO 28 U.S.C. §§ 1915(E)(2) AND 1915A(B) 19 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.’”

27 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

1 “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 4 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires that a complaint “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

12 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

17 As currently pleaded, the Court finds that Plaintiff’s Complaint contains “sufficient factual matter, accepted as true,” to state First and Eighth Amendment claims for relief that are “plausible on [their] face,” Iqbal, 556 U.S. at 678, and, therefore, sufficient to survive the “low threshold” set for sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123; see also Iqbal, 556 U.S. at 678; Estelle v. Gamble, 429 U.S. 97, 104 (1976) (prison officials’ deliberate indifference to an inmate’s serious medical needs constitutes cruel and unusual punishment in violation of the Eighth Amendment); Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (“Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s / / / exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”).2 3 Therefore, the Court will direct the U.S. Marshal to effect service of summons and Plaintiff’s Complaint on his behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).

9 CONCLUSION 10 For the reasons discussed, the Court: 11 1. GRANTS Plaintiff’s Motion to Proceed in Forma Pauperis (ECF No. 2); 12 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly payments from his account in an amount equal to twenty percent (20%) of the preceding month’s income and forwarding those payments to the Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2), WITH ALL PAYMENTS TO BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION; 19 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 21 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant, as well as a certified copies of this Order, the Complaint, and the summons so that Plaintiff may serve the Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete 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. the Form 285 as completely and accurately as possible, including an address where the Defendants may be served, see S.D. Cal. CivLR 4.1(c), and return it to the United States Marshal according to the instructions the Clerk provides in the letter accompanying his IFP package; 5 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons upon the Defendants as directed by Plaintiff on the USM Form 285 provided to him with all costs of that service to be advanced by the United States, see 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3); 9 6. ORDERS the Defendants, once served, to reply to Plaintiff’s Complaint within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a), see 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility under section 1983,” once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and, thus, has made a preliminary determination based on the face on the pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,” defendant is required to respond); and 17 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to serve upon the Defendants, or, if appearance has been entered by counsel, upon Defendants’ counsel, a copy of every further pleading, motion, or other document submitted for the Court’s consideration pursuant to Federal Rule of Civil Procedure 5(b).

21 Plaintiff must include with every original document he seeks to file with the Clerk of the Court a certificate stating the manner in which a true and correct copy of that document has been was served on the Defendants or their counsel and the date of that service. See S.D. Cal. CivLR 5.2. Any document received by the Court which has not been properly / / / / / / / / / / / / || filed with the Clerk, or which fails to include a Certificate of Service upon the Defendants, || may be disregarded.

3 IT IS SO ORDERED.

5 ||Dated: January 8, 2020 . tt f Le 6 on. Janis L. Sammartino 7 United States District Judge