Velasquez v. Seamon

• Court: District Court, S.D. California
• Decided: January 26, 2021
• Docket: 3:20-cv-01969
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 3:20-cv-1969-BAS-MDD SAUL VELASQUEZ, JR, 12 CDCR# BE-1969 ORDER: 13 Plaintiff, 1) GRANTING MOTION TO 14 v. PROCEED IN FORMA PAUPERIS 15 [ECF No. 3] AND SEAMON, et al.,

16 Defendants. 2) DIRECTING U.S. MARSHAL TO 17 EFFECT SERVICE OF COMPLAINT AND SUMMONS PURSUANT TO 18 28 U.S.C. § 1915(d) AND 19 Fed. R. Civ. P. 4(c)(3)

20 On October 5, 2020, SAUL VELASQUEZ, JR (“Plaintiff”), currently incarcerated 21 at California State Prison, Sacramento, and proceeding pro se, filed a civil rights action 22 alleging that his Constitutional rights were violated when correctional officers failed to call 23 for assistance after Plaintiff attempted suicide while he was incarcerated at R.J. Donovan 24 Correctional Facility (RJD), located in San Diego, California. (ECF No. 1.) On October 25 14, 2020, the Court dismissed Plaintiff’s case because he failed to prepay the $400 civil 26 filing fee required by 28 U.S.C. § 1914(a) and did not file a Motion to Proceed In Forma 27 1 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.) The Court granted 2 Plaintiff leave to pay the fee or file a moving to proceed IFP within 45 days. See 28 U.S.C. 3 § 1915(a)(2) and S.D. Cal. CivLR 3.2(b). (See ECF No. 2 at 3–4.) On November 6, 2020, 4 Plaintiff filed a Motion to Proceed IFP. (ECF No. 3.) 5 6 I. Motion to Proceed IFP 7 All parties instituting any civil action, suit or proceeding in a district court of the 8 United States before December 1, 2020,1 except an application for writ of habeas corpus, 9 must pay a filing fee of $400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a 10 plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant 11 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 12 However, prisoners who are granted leave to proceed IFP remain obligated to pay the entire 13 fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 85 (2016); Williams 14 v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their action is 15 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 16 844, 847 (9th Cir. 2002). 17 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 18 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 19 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 20

21 22 1 On December 1, 2020, the filing fee associated with civil actions was raised to $402. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 23 Schedule, § 14 (eff. Dec. 1, 2020)). 24 2 In addition to the $350 statutory fee, civil litigants who filed a civil action before 25 December 1, 2020, must pay an additional administrative fee of $50. See 28 U.S.C. § 26 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 27 leave to proceed IFP. Id. 1 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 2 trust account statement, the Court assesses an initial payment of 20% of (a) the average 3 monthly deposits in the account for the past six months, or (b) the average monthly balance 4 in the account for the past six months, whichever is greater, unless the prisoner has no 5 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 6 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 7 month’s income, in any month in which his account exceeds $10, and forwards those 8 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 9 136 S. Ct. at 629. 10 In support of his IFP Motion, Plaintiff has submitted a copy of his California 11 Department of Corrections and Rehabilitation (CDCR) Inmate Statement Report as well as 12 a Prison Certificate completed by a CDCR accounting officer. See ECF No. 3 at 4–5; 28 13 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These statements 14 show that Plaintiff has carried an average monthly balance of $1000.00, has had $200.00 15 in average monthly deposits to his account over the 6-month period immediately preceding 16 the filing of his Complaint, and an $289.41 available balance of $289.41 on the books at 17 the time of filing. (See ECF No. 3 at 4–5.) Based on this accounting, the Court GRANTS 18 Plaintiff’s Motion to Proceed IFP (ECF No. 3) and assesses his initial partial filing fee to 19 be $200.00 pursuant to 28 U.S.C. § 1915(b)(1). 20 The Court will direct the Secretary of the CDCR, or his designee, to collect the initial 21 $200.00 fee assessed only if sufficient funds are available in Plaintiff’s account at the time 22 this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a 23 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 24 judgment for the reason that the prisoner has no assets and no means by which to pay the 25 initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 26 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP 27 case based solely on a “failure to pay . . . due to the lack of funds available to him when 1 payment is ordered.”). The remaining balance of the $350 total fee owed in this case must 2 be collected by the agency having custody of the prisoner and forwarded to the Clerk of 3 the Court pursuant to 28 U.S.C. § 1915(b)(2). 4 5 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 6 A. Standard of Review 7 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a 8 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 9 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, 10 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who 11 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 12 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 13 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 14 the targets of frivolous or malicious suits need not bear the expense of responding.’” 15 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 16 “The standard for determining whether a plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 19 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 20 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 21 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 22 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 23 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 24 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 25 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 26 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 27 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 1 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 2 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 3 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 4 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 5 6 B. Plaintiff’s Factual Allegations 7 In his Complaint, Plaintiff names six RJD correctional officers as defendants: 8 Seamon, Galbrath, Nelson, Ayala, Soto and Sears. (Compl., ECF No. 1 at 2–3.) Plaintiff 9 alleges that on September 16, 2019, while incarcerated at RJD in the Enhanced Outpatient 10 (EOP) Unit for prisoners with mental health needs, he “suffered a mental breakdown which 11 caused him to suffer from suicidal ideations resulting in a suicide attempt.” (Id. at 8.) 12 At the time, Plaintiff was “being detained in a holding cage located in the B-6 13 rotunda approximately 5 to 6 feet from the [correctional] officers’ office.” (Id. at 4.) While 14 in the holding cell, Plaintiff told the six defendant correctional officers, who were all 15 purportedly present and within earshot, that he was “experiencing severe suicidal 16 ideations.” (Id.) Plaintiff states that he complained loudly and repeatedly to the 17 correctional officers, particularly Seamon, that he was having thoughts of harming himself. 18 (Id. at 4, 6–7.) He contends the defendants ignored and dismissed his complaints. In one 19 instance, Plaintiff complained directly to Seamon, who walked away after stating: “[D]on’t 20 feel like doing no paperwork today. Don’t care.” (Id. at 4.) Plaintiff states that the other 21 five defendant correctional officers expressed similar sentiments. When Plaintiff 22 continued to complain, the defendants “proceeded to close the office door” and again told 23 Plaintiff they “were not going to call anyone” because it would create paperwork. (Id. at 24 6.) 25 At some point, Plaintiff began to “slice his arm” with a razor in “9 different places, 26 which caused profuse bleeding.” (Id. at 4, 7.) Defendants “observed Plaintiff making the 27 cuts” (id. at 6) and saw the large amount of blood coming from Plaintiff’s arm but did not 1 offer immediate assistance. (Id. at 6–7.) Instead, Plaintiff contends, “all the defendants 2 left Plaintiff in a locked holding cell for approximately 25 minutes” without medical 3 attention, while Plaintiff “stood bleeding.” (Id. at 5, 6.) Defendants “were aware of the 4 severity of [Plaintiff’s] injury but fail[ed] to activate their emergency alarms or call medical 5 personnel to render assistance.” (Id. at 8.) Plaintiff alleges that being left to bleed in the 6 holding cell for 25 minutes caused his physical injuries to be worse and resulted in further 7 damage to his already fragile mental state. (Id. at 8.) 8 Based on these facts, Plaintiff alleges Defendants Seamon, Galbrath, Nelson, Ayala, 9 Soto and Sears violated his Eighth and Fourteenth Amendment rights. Plaintiff seeks 10 $60,000 in compensatory damages, $300,000 in punitive damages and “any other damages 11 the Court deems appropriate.” (Id. at 10.) 12 As currently pleaded, the Court finds that Plaintiff’s Complaint contains “sufficient 13 factual matter, accepted as true,” to state Eighth Amendment claims for relief that are 14 “plausible on [their] face,” Iqbal, 556 U.S. at 678, and, therefore, sufficient to survive the 15 “low threshold” set for sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 16 1915A(b). See Wilhelm, 680 F.3d at 1123; see also Iqbal, 556 U.S. at 678; Thomas v. 17 Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (“To prove a violation of the Eighth 18 Amendment a plaintiff must ‘objectively show that he was deprived of something 19 “sufficiently serious,” and make a subjective showing that the deprivation occurred with 20 deliberate indifference to the inmate’s health or safety.’”) (citing Farmer v. Brennan, 511 21 U.S. 825, 837 (1994)); United States v. Williams, 842 F.3d 1143, 1153 (9th Cir. 2016) 22 (stating the Eighth Amendment “requires that prison officials ‘must take reasonable 23 measures to guarantee the safety of the inmates.’”); Robins v. Meecham, 60 F.3d 1436, 24 1442 (9th Cir. 1995) (“[A] prison official can violate a prisoner’s Eighth Amendment rights 25 by failing to intervene.”); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (stating that 26 “delay of, or interference with, medical treatment can also amount to deliberate 27 indifference”). 1 Therefore, the Court will direct the U.S. Marshal to effect service of summons and 2 Plaintiff’s Complaint on his behalf.3 See 28 U.S.C. § 1915(d) (“The officers of the court 3 shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4 4(c)(3) (“[T]he court may order that service be made by a United States marshal or deputy 5 marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. 6 § 1915.”). 7 8 III. Conclusion and Order 9 For the reasons explained, the Court: 10 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 11 (ECF No. 3). 12 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 13 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly 14 payments from the account in an amount equal to twenty percent (20%) of the preceding 15 month’s income and forward payments to the Clerk of the Court each time the amount in 16 the account exceeds $ 10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 17 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 18 THIS ACTION. 19 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 20 Allison, 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. 22 1) and to forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each named 23 Defendant. In addition, the Clerk will provide Plaintiff with certified copies of this Order, 24 25 26 3 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 27 bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 1 his Complaint, and the summons so that he may serve these Defendants. Upon receipt of 2 this “IFP Package,” Plaintiff must complete the USM Form 285s as completely and 3 accurately as possible, include an address where each named Defendant may be found 4 and/or subject to service pursuant to S.D. Cal. CivLR 4.1c., and return them to the United 5 States Marshal according to the instructions the Clerk provides in the letter accompanying 6 his IFP package. 7 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 8 upon the Defendants as directed by Plaintiff on the USM Form 285s provided to him. All 9 costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. 10 R. Civ. P. 4(c)(3). 11 6. ORDERS Defendants, once they have been served, to reply to Plaintiff’s 12 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 13 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be 14 permitted to “waive the right to reply to any action brought by a prisoner confined in any 15 jail, prison, or other correctional facility under section 1983,” once the Court has 16 conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and 17 thus, has made a preliminary determination based on the face on the pleading alone that 18 Plaintiff has a “reasonable opportunity to prevail on the merits,” defendant is required to 19 respond). 20 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 21 serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’ 22 counsel, a copy of every further pleading, motion, or other document submitted for the 23 Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 24 original document he seeks to file with the Clerk of the Court, a certificate stating the 25 manner in which a true and correct copy of that document has been was served on 26 Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any 27 document received by the Court which has not been properly filed with the Clerk or which 1 fails to include a Certificate of Service upon the Defendants, or their counsel, may be 2 disregarded. 3 4 IT IS SO ORDERED. 5 Dated: January 25, 2021 6 Cynthia Bashant United States District Judge 7

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