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Wilson v. Gardiner

United States District Court, S.D. California

June 28, 2017

DAVID WILSON, CDCR #AZ-8092, Plaintiff,
v.
CORPORAL GARDINER, San Diego County Sheriff's Deputy; JOE DOE #1, San Diego County Deputy Sheriff; SERGEANT POITER, Deputy Sergeant; JOE DOES #2-4, Defendants.

          ORDER (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND (2)DIRECTING U.S. MARSHAL TO EFFECT SERVICE PURSUANT TO 28 U.S.C. § 1915(D) AND FED. R. CIV. P. 4(C)(3) (ECF NO. 2)

          Hon. Janis L. Sammartino United States District Judge

         David Wilson (“Plaintiff”) is currently incarcerated at the California Medical Facility (“CMF”) in Vacaville, California. He is proceeding pro se, and has filed a civil Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1).

         Plaintiff had not prepaid the $400 civil filing fee required to commence a civil action pursuant to 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).

         BACKGROUND

         Plaintiff claims he suffers from a “psychiatric disability” for which he is currently receiving care “within the [California Department of of Corrections and Rehabilitation] [(‘]CDCR[')].” (Compl. 5.) Earlier, while he was “an inmate under [the] care and control of the San Diego County Sheriff's Department, ” and housed at the San Diego Central Jail (“SDCJ”) on April 5, 2016, however, Plaintiff alleges Defendants Gardiner and Joe Doe #1, both San Diego County Sheriff's Department deputies assigned to SDCJ, used excessive force against him with “callous and malicious intent” to both harm and humiliate him. (Id. at 3-14.) Specifically, Plaintiff claims Gardiner became “infuriated” after Plaintiff asked for soup, at which point Gardiner grabbed, punched, pushed, kicked, and struck him “in the eye, neck, and upper torso, ” and then escorted him “through the Jail with a severely torn shirt and no pants on, ” and into a “filthy” medical cell. (Id. at 7-9.)

         After two hours in the cell, “half naked in distress, ” Plaintiff claims he asked Defendant Deputy Joe Doe #1 for clothes and supplies, and stated “I['d] rather be dead than live like this.” (Id. at 9-10.) Joe Doe #1 then ordered him to “cuff up”-claiming Plaintiff had threatened suicide-“pointed the jagged edge of the . . . cuffs in [his] right hand, ” and “immediately” pepper sprayed him twice, after he asked for a sergeant. (Id. at 10-11.)

         Plaintiff further contends Defendant Poiter, a San Diego County Sergeant on “second watch, ” arrived a “moment later, ” commented on the amount of pepper spray dispensed, but “failed to properly document the incidents.” (Id. at 4, 11.) Plaintiff was then “taken straight to suicide watch, ” “left in a rubber cell naked and burning, ” and released “within 24 hours” after being assessed “by the psych doctor” as non-suicidal. (Id. at 12.)

         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).[1] 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, ” Bruce v. Samuels, __ U.S. __, 136 S.Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

         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, Plaintiff has submitted a CDCR Inmate Statement, and a Prison Certificate authorized by an accounting specialist at CMF attesting to his balances and deposits over the six-month period preceding the filing of his Complaint. See ECF No. 2 at 4, 6; 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2; Andrews, 398 F.3d at 1119. These statements show that Plaintiff has carried no monthly average and has had no money deposited to his account for the six-month period preceding the filing of this action. Consequently, his available balance at the time of filing was zero. (See ECF No. 2 at 4); 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”); 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”).

         Therefore, the Court grants Plaintiff's Motion to Proceed IFP (ECF No. 2), declines to “exact” any initial filing fee because his trust account statement shows he “has no means to pay it, ” Bruce, 136 S.Ct. at 629, and directs the Secretary of 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). See id.

         SCREENING PURSUANT TO 28 U.S.C. ยงยง ...


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