Opinion
Case No.: 19-cv-2126-BAS-KSC
01-16-2020
ABONILICO LAMAR CARROLL, CDCR #BK-9830, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS; DONOVAN STATE PRISON; C/O MILLER; C/O WRIGHT, Defendants.
ORDER:
(1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 3];
(2) DISMISSING DEFENDANTS; AND
(3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF COMPLAINT PURSUANT TO 28 U.S.C. § 1915(d) AND Fed. R. Civ. P. 4(c)(3)
Abonilico Carroll ("Plaintiff") is currently incarcerated at the California Institution for Men ("CIM") in Chino, California. He is proceeding pro se and has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (See Compl, ECF No. 1.) Plaintiff alleges that his constitutional rights were violated when he was previously housed at the Richard J. Donovan Correctional Facility ("RJD") in 2017. (See id.)
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 Motion") pursuant to 28 U.S.C. § 1915(a). (IFP Mot., ECF No. 3.)
I. IFP MOTION
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); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in "increments" or "installments," regardless of whether his action is ultimately dismissed. See Bruce v. Samuels, ___ S. Ct. ___, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015); 28 U.S.C. § 1915(b)(1) & (2).
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 IFP. Id.
Section 1915(a)(2) 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, 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); 28 U.S.C. § 1915(b)(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.
In support of his IFP Motion and in accordance with Local Civil Rule 3.2, Plaintiff has submitted a copy of his Prison Certificate attesting to his balances and deposits over the six-month period preceding the filing of his Complaint. (See IFP Mot. at 4.) This statement shows that Plaintiff has had no money in his trust account for the six months preceding the filing of this action, and that he had a zero balance at the time of filing. (See IFP Mot. a 4.)
Therefore, the Court GRANTS Plaintiff's Motion to Proceed IFP (Doc. No. 3) and declines to "exact" any initial filing fee because his trust account statement shows he "has no means to pay it." See Bruce, 136 S. Ct. at 630; see also 28 U.S.C. § 1915(b)(4) (providing that "[i]n 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."). The Court further DIRECTS the Secretary of the California Department of Corrections and Rehabilitation ("CDCR") to collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
II. SCREENING
A. Standard of Review
Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-answer screening which the Court conducts sua sponte pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must 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.'" 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)).
"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 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 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.
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." 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 Service, 572 F.3d 962, 969 (9th Cir. 2009).
B. Plaintiff's Allegations
In August of 2017, Plaintiff was "released from UCSD Hospital" after having "reconstructive surgery." (Compl. at 2.) Plaintiff claims he was "purposely housed at the top tier" when he returned to RJD even though he could "barely walk." (Id.) Plaintiff was "supposed to be housed in the infirmary" but was instead housed in general population. (Id. at 4.)
Plaintiff informed Defendants Wright and Miller that he "couldn't climb up top tier stairs because [he] had surgery" and could "hardly walk." (Id. at 5.) Plaintiff claims Wright and Miller "threatened" him that if he "didn't go lock up [he] was going to be placed in the hole." (Id.) He further claims both Wright and Miller thought his "demise was humorous or funny." (Id.) Plaintiff was assisted up the stairs by other inmates. (See id.) However, when he tried to "go down stairs" he fell down the "whole flight of stairs down to the bottom and injured [his] shoulder, legs, back, neck, and bang[ed] [his] head hard on concrete [he] passed out and was transported by ambulance to Central Health." (Id.)
Plaintiff seeks injunctive relief, as well as compensatory and punitive damages. (Id. at 7.)
C. Defendants CDCR and RJD
First, to the extent Plaintiff includes the CDCR and "Donovan State Prison" as parties, his Complaint fails to state any claim against these Defendants upon which § 1983 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b)(1).
Neither the CDCR nor RJD are "persons" subject to suit under § 1983. See Hale v. State of Ariz., 993 F.2d 1387, 1398-99 (9th Cir. 1993) (holding that a state department of corrections is an arm of the state, and thus, not a "person" within the meaning of § 1983); see also Anderson v. California, No. 3:16-CV-01172-LAB-JLB, 2016 WL 4127785, at *2 (S.D. Cal. Aug. 3, 2016) (sua sponte dismissing both CDCR and RJD pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A because neither are "persons" subject to § 1983 liability).
Thus, these Defendants are DISMISSED from this action for failing to state a claim.
D. Eighth Amendment Claims
However, as to Plaintiff's remaining Eighth Amendment claims against Defendants Miller and Wright , the Court finds that Plaintiff's Complaint contains factual content sufficient to survive the "low threshold" for proceeding past the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), because it alleges Eighth Amendment claims which are plausible on its face. See Wilhelm, 680 F.3d at 1123; 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).
Accordingly, the Court will direct the U.S. Marshal to effect service upon Defendants Miller and Wright on Plaintiff's 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.").
III. CONCLUSION AND ORDER
For the reasons discussed, the Court:
1. GRANTS Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 3);
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). ( all payments shall be clearly identified by the name and case number assigned to this action );
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;
4. DISMISSES Defendants California Department of Corrections and RJD for failing to state a claim upon which relief may be granted and directs the Clerk of Court to terminate these Defendants from the docket;
5. 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 Defendants Miller and Wright. In addition, the Clerk will provide Plaintiff with a certified copy of this Order, a certified copy of his Complaint and the summons so that he may serve the named Defendants. Upon receipt of this "IFP Package," Plaintiff must complete the Form 285s as completely and accurately as possible, include an address where each named Defendant may be found and/or subject to service pursuant to Local Civil Rule 4.1c. and return them to the United States Marshal according to the instructions the Clerk provides in the letter accompanying his IFP package;
6. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons upon the named Defendants as directed by Plaintiff on the USM Form 285s provided to him, with all costs of that service to be advanced by the United States pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3);
7. ORDERS the named and served Defendants 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," the defendant is required to respond); and
8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to serve upon the named 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 Fed. R. Civ. P. 5(b). 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 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 Defendants may be disregarded.
IT IS SO ORDERED.
DATED: January 16, 2020
/s/ _________
Hon. Cynthia Bashant
United States District Judge