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Reed v. Paramo

United States District Court, S.D. California

May 3, 2018

MYCHAL ANDRA REED, CDCR #AE-9821, Plaintiff,
v.
DANIEL PARAMO, Warden; L. LUNA, Lieutenant; E. ZENDEJAS, Correctional Officer; C. CRESPO, Correctional Officer, Defendants.

          ORDER 1) GRANTING MOTIONS TO MAIL COMPLAINT AND 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)

          HON. JANIS L. SAMMARTINO, UNITED STATES DISTRICT JUDGE.

         Plaintiff Mychal Andra Reed, proceeding pro se and incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, initiated this civil rights action on February 9, 2018, by filing a “Motion for Permission to Mail” together with a Civil Rights Complaint pursuant to 42 U.S.C. § 1983. (See “Compl., ” ECF No. 1.)

         Plaintiff sought permission to mail his Complaint to the Court rather than submit it electronically as required by S.D. Cal. General Order 653, which established a pilot program for RJD prisoners seeking to file civil rights actions in forma pauperis pursuant to § 1983. (Id. at 1.) Because Plaintiff claimed unidentified officials at RJD refused to e-file his Complaint, the Court granted Plaintiff's request and gave him 45 days leave in which to submit his Complaint by mail, and to either pay the full civil filing required by 28 U.S.C. § 1914(a), or file a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2 at 3-4.)

         On February 26, 2018, Plaintiff filed his Amended Complaint, (ECF No. 3), together with a duplicate Motion seeking permission to file it by mail, (ECF No. 5), followed by a Motion to Proceed IFP, (ECF No. 6), and Prisoner Certificate and Trust Fund Account Statement, (ECF No. 7).

         Plaintiff claims two correctional officers at RJD (Defendants Zendejas and Crespo) unlawfully retaliated against him by issuing “fabricated” serious rules violations reports (“RVRs”) charging him with misconduct after he had lodged both verbal and written complaints and inmate grievances against them. (See ECF No. 3 at 2-7.) Plaintiff further alleges he reported Zendejas and Crespo's retaliatory RVRs to both Warden Paramo and Lt. Luna, but they failed to investigate or correct those violations and ignored his pleas- also in retaliation for his having filed complaints with the Office of Internal Affairs and another pending civil rights action in the Central District of California, Civil Case No. 2:12-cv-10727-VAP-JCG. (Id. at 2-3; 11-12.) Plaintiff seeks $200, 000 in general and punitive damages, as well as injunctive relief. (Id. at 13.)

         I. Motions for Permission to Mail and Proceed In Forma Pauperis

         As noted above, the Court has already granted Plaintiff's initial Motion requesting relief from General Order 653's e-filing requirements, and has accepted his Amended Complaint and IFP Motion for filing by U.S. mail. (See ECF Nos. 2, 3, 6.) While unnecessary, the Court also GRANTS his subsequent Motion requesting the same relief, (ECF No. 5). All further filings in this case shall be made by U.S. Mail, processed by RJD officials via its institutional procedures, and accompanied by a proof of service upon Defendants. No further motions requesting permission to file by mail are necessary. See Fed. R. Civ. P. 5(d)(1); Civ. L. R. 4.1(d), 5.2.

         As for Plaintiff's 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.[1] 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 granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or “installments, ” Bruce v. Samuels, 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 copy of his CDCR Inmate Statement Report as well as a Prison Certificate completed by an accounting officer at RJD. (See ECF No. 7, at 1-3); 28 U.S.C. § 1915(a)(2); Civ. L.R. 3.2; Andrews, 398 F.3d at 1119. These statements show that Plaintiff has carried no average monthly balance, has had no monthly deposits to his account over the 6-month period immediately preceding the filing of his Complaint, and, consequently, had no available balance on the books at the time of filing. (See ECF No. 7, at 1, 3.) Based on this accounting, no initial partial filing fee is assessed. See 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. 6), declines to exact any initial filing fee because his prison certificate indicates he has “no means to pay it, ” Bruce, 136 S.Ct. at 629, and directs the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”), or his designee, to instead 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.

         II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b)

         Because Plaintiff is a prisoner and is proceeding IFP, his Amended Complaint, (ECF No. 3), requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte 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 ...


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