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Holestine v. P. Covello

United States District Court, S.D. California

September 24, 2019

ERNEST KELLY HOLESTINE, CDCR #J-01366, Plaintiff,
v.
P. COVELLO, Warden; F. ARMENTA, Chief Deputy Warden; J. SANTANA, Assoc. Warden; D. McGUIRE, Asst. Classification & Parole Rep.; C. O’DELL, Correctional Counselor II; B. SELF, Correctional Counselor II; D. COON, Correctional Counselor I; R. CENTENO, Correctional Counselor I; J. MEDINA, Assoc. Warden; A. SANDS, Correctional Counselor III; M. VOONG, Chief Inmate Appeals; K.J. ALLEN, Appeals Examiner; J. DOMINGUEZ, Appeals Examiner, Defendants.

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

          Hon. Gonzalo P. Curiel United States District Judge.

         Plaintiff Ernest Kelly Holestine, currently incarcerated at Salinas Valley State Prison (“SVSP”) in Soledad, California, and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (See Compl., Doc. No. 1.) Holestine claims various prison and California Department of Corrections and Rehabilitation (“CDCR”) officials at Richard J. Donovan Correctional Facility (“RJD”) and the California Medical Facility (“CMF”), violated the Americans with Disabilities Act, 42 U.S.C. § 12132, the Rehabilitation Act, 29 U.S.C. § 794(a), and his Eighth and Fourteenth Amendment rights, by denying his requests for reasonable accommodation with respect to his prison employment while he was incarcerated at RJD, and involuntarily transferring him to CMF, a psychiatric hospital, where he alleges to have been forcibly medicated, subject to “excessive isolation, ” and to have mentally decompensated. (See Compl., Doc. No. 1, at 3-4, 12, 16-18 ¶¶ 18-21, 68-76, 87-102.) Holestine seeks declaratory and injunctive relief, as well as nominal, compensatory, and punitive damages. (Id. at 19-20).

         Holestine did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2).

         I. Motion to Proceed IFP

         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). However, prisoners who are granted leave to proceed IFP remain 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 their 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) also 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, Holestine has submitted a SVSP-certified copy of his CDCR Inmate Statement Report for the 6-month period preceding the filing of his Complaint (Doc. No. 2 at 6-7). See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. This Report shows Holestine carried an approximate average monthly balance of $5.85, maintained $14.14 in average monthly deposits in his account during the 6-months preceding suit, and had a current available balance of only $.83 at the time of filing. (See Doc. No. 2 at 6.)

         Based on this accounting, the Court assesses Holestine’s initial partial filing fee as $2.82 pursuant to 28 U.S.C. § 1915(b)(1), GRANTS his Motion to Proceed IFP (Doc. No. 2), but declines to exact this initial fee because his prison certificates indicate he currently has “no means to pay it.” Bruce, 136 S.Ct. at 629. Instead, the Court will direct the Secretary of the CDCR or his designee, to collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward monthly installment payments to the Clerk of the Court pursuant 28 U.S.C. § 1915(b)(2).

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

         Because Holestine is a prisoner and is proceeding IFP, his Complaint also 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 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).

         As currently pleaded, the Court finds Holestine’s Complaint contains “sufficient factual matter, accepted as true, ” to state Fourteenth Amendment claims for relief that are “plausible on its face, ” Iqbal, 556 U.S. at 678, and therefore, sufficient to survive the “low threshold” set for sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678. Changes in conditions so severe as to affect the sentence imposed in an unexpected manner implicate the Due Process Clause itself, whether or not they are authorized by state law. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (citing Vitek v. Jones, 445 U.S. 480, 493 (1980) (transfer to mental hospital); Washington v. Harper, 494 U.S. 210, 221-22 (1990) (involuntary administration of psychotropic drugs)). In Vitek, the Supreme Court held that “the stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the kind of deprivations of liberty that requires procedural protections.” Id. at 494; see also Manzanillo v. Moulton, 2014 WL 4793780, at *11 (N.D. Cal. Sept. 25, 2014) (noting that Vitek “held that the conjunction of stigmatization and mandatory behavior modification without procedural protections violated due process.”). “The liberty interest at stake in Vitek mandated due process protections before both the classification of the inmate as ‘mentally ill’ and his resultant transfer to a mental hospital for involuntary psychiatric treatment.” Neal v. Shimoda, 131 F.3d 818, 828 (9th Cir. 1997); see also Wilkinson v. Austin, 545 U.S. 209, 229 (2005); Hendon v. Ramsey, 528 F.Supp.2d 1058, 1065 (S.D. Cal. 2007).[2]

         Therefore, the Court will direct the U.S. Marshal to effect service of summons Holestine’s Complaint on his 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 ...


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