Hairston v. Strayhorn

• Court: District Court, S.D. California
• Decided: January 31, 2023
• Docket: 3:23-cv-00153
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEVIN TYRONE IZAL HAIRSTON, Case No.: 23cv0153-GPC (WVG) CDCR #BF-2040, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS, D. STRAYHORN, 15 and Defendant. 16 (2) DIRECTING U.S. MARSHAL TO 17 EFFECT SERVICE OF COMPLAINT AND SUMMONS PURSUANT TO 28 18 U.S.C. § 1915(d) & Fed. R. Civ. P. 19 4(c)(3) 20 21 Plaintiff Kevin Tyrone Izal Hairston, a state prisoner proceeding pro se, has filed a 22 civil rights Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff claims that 23 while housed at the Richard J. Donovan Correctional Facility (“RJD”) in San Diego, 24 California, Defendant RJD Correctional Officer D. Strayhorn placed him in a chokehold 25 and threw him against a wall without justification and threatened to kill him if he filed an 26 inmate grievance regarding the incident. (See id.) 27 Plaintiff has not paid the civil filing fee but has instead filed a Motion to Proceed in 28 Forma Pauperis (“IFP”). (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 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if they are 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) (“28 U.S.C. 7 § 1915(a) allows the district court to waive the fee, for most individuals unable to afford 8 it, by granting IFP status.”) 9 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 10 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 11 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 12 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 13 trust account statement, the Court assesses an initial payment of 20% of (a) the average 14 monthly deposits in the account for the past six months, or (b) the average monthly balance 15 in the account for the past six months, whichever is greater, unless the prisoner has no 16 assets. See 28 U.S.C. § 1915(b)(1) & (4). The institution collects subsequent payments, 17 assessed at 20% of the preceding month’s income, in any month in which the account 18 exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. 19 See 28 U.S.C. § 1915(b)(2). Plaintiff remains obligated to pay the entire fee in monthly 20 installments regardless of whether the action is ultimately dismissed. Bruce v. Samuels, 21 577 U.S. 82, 84 (2016). 22 Plaintiff’s inmate trust account statement shows he has no funds available in his trust 23 account at the time of filing. (ECF No. 2 at 7.) The Court GRANTS Plaintiff’s Motion to 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does 28 1 Proceed IFP and declines to impose an initial partial filing fee pursuant to 28 U.S.C. 2 § 1915(b)(1) because the prison certificate indicates Plaintiff may have no means to pay it. 3 See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited 4 from bringing a civil action or appealing a civil action or criminal judgment for the reason 5 that the prisoner has no assets and no means by which to pay the initial partial filing fee.”); 6 Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) 7 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a 8 “failure to pay . . . due to the lack of funds available to him when payment is ordered.”) 9 Plaintiff remains obligated to pay the entire fee in monthly installments. 10 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 11 A. Standard of Review 12 Because Plaintiff is a prisoner proceeding IFP, the Complaint requires a pre-Answer 13 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua sponte 14 dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails 15 to state a claim, or seeks damages from defendants who are immune. Lopez v. Smith, 203 16 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes 17 v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 18 “The standard for determining whether a plaintiff has failed to state a claim upon 19 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 20 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 21 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 22 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 23 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule 24 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 25 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 26 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Determining whether 27 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 28 the reviewing court to draw on its judicial experience and common sense.” Id. 1 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 2 acting under color of state law, violate federal constitutional or statutory rights.” 3 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, 4 a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws 5 of the United States, and (2) that the deprivation was committed by a person acting under 6 color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 7 B. Allegations in the Complaint 8 Plaintiff alleges he was on his way to the medical department when Defendant RJD 9 Correctional Officer Strayhorn became upset with him “due to the fact that I had earrings 10 and I had my pants to a sage and also a soda bottle with coffee in it.” (ECF No. 1 at 2.) 11 Defendant asked Plaintiff to put the soda bottle down and remove his earrings, which he 12 did, but “the next thing I know defendant rush me from behind talking about stop resisting.” 13 (Id.) Defendant then placed Plaintiff “in a choke hold from the back with my hands in the 14 air along with his hand behind my neck,” and then “threw me into a brick wall.” (Id. at 3.) 15 Plaintiff was required to wear a neck brace and continues to experience pain. (Id.) When 16 Plaintiff told Defendant he was going to submit an inmate grievance regarding the incident, 17 Defendant threatened “to kill me if I write” an inmate grievance. (Id.) 18 C. Discussion 19 The Cruel and Unusual Punishments Clause of the Eighth Amendment forbids 20 prison officials from “the unnecessary and wanton infliction of pain.” Whitley v. Albers, 21 475 U.S. 312, 319 (1986). “[W]henever prison officials stand accused of using excessive 22 physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial 23 inquiry is that set out in Whitley: whether force was applied in a good-faith effort to 24 maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. 25 McMillian, 503 U.S. 1, 6-7 (1992). Relevant factors for that inquiry include “the need for 26 application of force, the relationship between that need and the amount of force used, the 27 threat ‘reasonably perceived by the responsible officials,’ and ‘any efforts made to temper 28 the severity of a forceful response.’” Id. at 7, quoting Whitley, 475 U.S. at 1085. The 1 sadistic and malicious use of force to cause harm violates the Eighth Amendment 2 regardless of “whether or not significant injury is evident.” Id. at 9-10. 3 Plaintiff has alleged that Defendant grabbed him from behind in a choke hold and 4 slammed him into a wall for no reason after he complied with Defendant’s commands, and 5 that he was injured as a result. Plaintiff’s allegations are sufficient to survive the “low 6 threshold” of the screening required by 28 U.S.C. §§ 1915(e)(2) & 1915A(b) with respect 7 to an Eighth Amendment claim against Defendant Strayhorn. Wilhelm, 680 F.3d at 1123; 8 Iqbal, 556 U.S. at 678. The allegation that Defendant threatened to kill Plaintiff if he filed 9 an inmate grievance, without more, is not sufficient to state a claim. See Gaut v. Sunn, 810 10 F.2d 923, 925 (9th Cir. 1987) (“[I]t trivializes the Eighth Amendment to believe a threat 11 constitutes a constitutional wrong.”) 12 Accordingly, Plaintiff is entitled to have the U.S. Marshal effect service of the 13 summons and Complaint against Defendant Strayhorn. See 28 U.S.C. § 1915(d) (“The 14 officers of the court shall issue and serve all process, and perform all duties in [IFP] 15 cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United 16 States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in forma 17 pauperis under 28 U.S.C. § 1915.”) Nevertheless, the Court cautions Plaintiff that the sua 18 sponte screening process is “cumulative of, not a substitute for, any subsequent [motion to 19 dismiss] that the defendant may choose to bring.” Teahan v. Wilhelm, 481 F.Supp.2d 1115, 20 1119 (S.D. Cal. 2007). 21 III. Conclusion and Orders 22 Accordingly, good cause appearing, the Court: 23 1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2). 24 2) DIRECTS the Secretary of the CDCR, or his designee, to collect from 25 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 26 payments from Plaintiff’s account in an amount equal to twenty percent (20%) of the 27 preceding month’s income and forwarding those payments to the Clerk of the Court each 28 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). 1 3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 2 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation, 3 P.O. Box 942883, Sacramento, California, 94283-0001. 4 4) DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 5 1) for Defendant Strayhorn and forward it to Plaintiff along with a blank U.S. Marshal 6 Form 285. The Clerk will provide Plaintiff with certified copies of the Complaint and 7 summons for use in serving Defendant. Upon receipt of this “In Forma Pauperis Package,” 8 Plaintiff must complete the USM Form 285 as completely and accurately as possible, 9 include an address where Defendant may be found and/or subject to service pursuant to 10 S.D. Cal. CivLR 4.1(c), and return the forms to the United States Marshal according to the 11 instructions the Clerk provides in the letter accompanying the In Forma Pauperis Package. 12 5) ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 13 upon Defendant Strayhorn as directed by Plaintiff on the USM Form 285. Costs of service 14 will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 15 6) ORDERS Defendant, once served, to reply to Plaintiff’s Complaint and any 16 subsequent pleading Plaintiff files in this matter in which Defendant is named as a party 17 within the time provided by the applicable provisions of Federal Rules of Civil Procedure 18 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be 19 permitted to “waive the right to reply to any action brought by a prisoner confined in any 20 jail, prison, or other correctional facility under section 1983,” once the Court has conducted 21 its sua sponte screening Defendants are required to respond). 22 7) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 23 serve upon Defendant, or if appearance has been entered by counsel, upon Defendant’s 24 counsel, a copy of every further pleading, motion, or other document submitted for the 25 Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 26 original document sought to be filed with the Clerk, a certificate stating the manner in 27 which a true and correct copy of that document has been served on Defendant or his 28 counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document received by 1 ||the Court which has not been properly filed with the Clerk or which fails to include a 2 || Certificate of Service upon a Defendant, or their counsel, may be disregarded. 3 IT IS SO ORDERED. 4 ||Dated: January 31, 2023 □□ 5 Cor athe Cade 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 □□