Gathrite v. Wilson

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEANGELO LAMAR GATHRITE, Case No.: 3:19-cv-01852-JAH-NLS CDCR #E-01096, 12 ORDER: Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS HEATHER WILSON; 15 [ECF No. 2] J. TREJO; SALINAS,

16 Defendants. AND 17 2) DIRECTING U.S. MARSHAL TO 18 EFFECT SERVICE OF COMPLAINT 19 AND SUMMONS PURSUANT TO 28 U.S.C. § 1915(d) AND 20 Fed. R. Civ. P. 4(c)(3) 21 22 DeAngelo Lamar Gathrite (“Plaintiff”), currently incarcerated at the Richard J. 23 Donovan Correctional Facility (“RJD”) located in San Diego, California, and proceeding 24 pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983, claiming prison 25 officials at RJD have violated his First and Eighth Amendment rights. See Compl., ECF 26 No. 1. Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when 27 he filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) 28 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 (2016); 9 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their 10 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 11 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 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, Plaintiff has submitted a Prison Certificate completed 24 by a trust account specialist at RJD. See ECF No. 3 at 1; 28 U.S.C. § 1915(a)(2); S.D. Cal. 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 CivLR 3.2; Andrews, 398 F.3d at 1119. The trust account official attests that Plaintiff had 2 average monthly deposits of $19.72, and maintained an average monthly balance of $22.34 3 in his account during the 6-months preceding suit; but he carried a current available balance 4 of only $.18 at the time of filing. See ECF No. 3 at 1. 5 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), 6 declines to exact the $4.47 partial initial filing fee assessed because his prison certificate 7 indicates he currently has “no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the 8 Secretary of the CDCR, or his designee, to instead collect the entire $350 balance of the 9 filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk pursuant to 28 10 U.S.C. § 1915(b)(1). 11 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 12 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a 13 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 14 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, 15 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who 16 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 17 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 18 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 19 the targets of frivolous or malicious suits need not bear the expense of responding.’” 20 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 21 “The standard for determining whether a plaintiff has failed to state a claim upon 22 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 23 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 24 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 25 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 26 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 27 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 28 1 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 2 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 3 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 4 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 5 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 6 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 7 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 8 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 9 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 10 As currently pled, the Court finds Plaintiff’s Complaint contains “sufficient factual 11 matter, accepted as true,” to state First and Eighth Amendment claims for relief that are 12 “plausible on its face,” Iqbal, 556 U.S. at 678, and therefore, sufficient to survive the “low 13 threshold” set for sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). 14 See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; Rhodes v. Robinson, 408 F.3d 559, 15 567-68 (9th Cir. 2005) (“Within the prison context, a viable claim of First Amendment 16 retaliation entails five basic elements: (1) An assertion that a state actor took some adverse 17 action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such 18 action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action 19 did not reasonably advance a legitimate correctional goal.”); Estelle v. Gamble, 429 U.S. 20 97, 104 (1976) (prison officials’ deliberate indifference to an inmate’s serious medical 21 needs constitutes cruel and unusual punishment in violation of the Eighth Amendment). 22 Therefore, the Court will direct the U.S. Marshal to effect service of summons and 23 Plaintiff’s Complaint upon Defendants on his behalf. See 28 U.S.C. § 1915(d) (“The 24 officers of the court shall issue and serve all process, and perform all duties in [IFP] 25 cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United 26 States marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma 27 pauperis under 28 U.S.C. § 1915.”). 28 / / / 1 III. Conclusion and Order 2 For the reasons explained, the Court: 3 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 4 (ECF No. 2). 5 2. ORDERS 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 collecting monthly 7 payments from the account in an amount equal to twenty percent (20%) of the preceding 8 month’s income and forward payments to the Clerk of the Court each time the amount in 9 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 10 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 11 THIS ACTION. 12 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, 13 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 14 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 15 1) and forward it to Plaintiff counsel along with a blank U.S. Marshal Form 285 for 16 Defendants. In addition, the Clerk will provide Plaintiff with a certified copy of this Order, 17 certified copies of his Complaint, and the summons so that he may serve Defendants 18 Poladian and Longworth. Upon receipt of this “IFP Package,” Plaintiff must complete the 19 USM Form 285s as completely and accurately as possible, include an address where both 20 Defendants may be found and/or subject to service pursuant to S.D. Cal. CivLR 4.1c., and 21 return them to the United States Marshal according to the instructions the Clerk provides 22 in the letter accompanying his IFP Package. 23 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 24 upon Defendants as directed by Plaintiff on the USM Form 285s provided to him. All costs 25 of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. 26 P. 4(c)(3). 27 6. ORDERS Defendants, once they have been served, to reply to Plaintiff’s 28 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 1 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be 2 || permitted to “waive the right to reply to any action brought by a prisoner confined in any 3 prison, or other correctional facility under section 1983,” once the Court has 4 ||conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and 5 ||thus, has made a preliminary determination based on the face on the pleading alone that 6 || Plaintiff has a “reasonable opportunity to prevail on the merits,” the Defendants are 7 ||required to respond). 8 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 9 ||serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’ 10 |}counsel, a copy of every further pleading, motion, or other document submitted for the 11 Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 12 || original document he seeks to file with the Clerk, a certificate stating the manner in which 13 |/a true and correct copy of that document has been was served on Defendants or their 14 || counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document received by 15 Court which has not been properly filed with the Clerk or which fails to include a 16 || Certificate of Service upon the Defendants, or their counsel, may be disregarded. 17 IT IS SO ORDERED. 18 19 || Dated: October 30, 2019 20 fon. John A. Houston 1 Wnited States District Judge 22 23 24 25 26 27 28 6