Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Luther v. California Dep't of Corrections and Rehabilitation

United States District Court, S.D. California

January 6, 2020

EVERETT LUTHER, Plaintiff,
v.
CALIFORNIA DEP'T OF CORRECTIONS AND REHABILITATION; SAN DIEGO COUNTY; SAN DIEGO SHERIFF'S DEP'T; SHERIFF WILLIAM GORE, Defendants.

          ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2)(B) [ECF NO. 8]

          Hon. Cathy Ann Bencivengo, United States District Judge.

         EVERETT LUTHER (“Plaintiff”), formerly housed at the East Mesa Reentry Facility (“EMRF”) in San Diego, California, and proceeding pro se, filed a Complaint pursuant to the Civil Rights Act, 42 U.S.C. § 1983 in the Eastern District of California. (ECF No. 1.) Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the time he submitted his Complaint in the Eastern District, but instead filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2.)

         On August 2, 2019, United States District Judge Deborah Barnes ordered the case transferred to the Southern District of California pursuant to 28 U.S.C. § 1406(a) finding it in the interest of justice to do so because Plaintiff's “claim arose in San Diego County” and therefore “should have been filed” here. (See ECF No. 4 at 2.)

         On August 6, 2019, this Court denied Plaintiff's Motion to Proceed IFP on the grounds that he did not attach a certified copy of his inmate trust account activity or his inmate trust account statement report for the 6-month period immediately preceding the filing of his Complaint. (ECF No. 7 at 3 citing 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2). Plaintiff has now filed a renewed Motion to Proceed IFP along with notifying the Court he is no longer incarcerated. (See ECF Nos. 8, 9.) Thus, the requirement to submit his inmate trust account statement is no longer applicable because Plaintiff is not incarcerated.

         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. See 28 U.S.C. § 1914(a).[1] An 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 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Section 1915(a)(2) requires all persons seeking to proceed without full prepayment of fees to file an affidavit that includes a statement of all assets possessed and demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015).

         Plaintiff has now filed a notice of change of address that appears to indicate he is no longer incarcerated and therefore, the Court will presume Plaintiff is not subject to those provisions of § 1915 that apply only to prisoners, and review his IFP applications just as it would those filed by any other person. See e.g., Agyeman v. I.N.S., 296 F.3d 871, 886 (9th Cir. 2002) (“[T]he statutory term ‘prisoner' is limited to an individual who is ‘currently detained as a result of accusation, conviction, or sentence for a criminal offense, '” and therefore “does not encompass a civil detainee for purposes of the PLRA.”) (citing Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000) (emphasis original).

         Based on the affidavits Plaintiff has now provided, the Court finds he is unable to pay the fees or post securities required to maintain this action, and GRANTS his Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 8).

         II. Sua Sponte Screening pursuant to 28 U.S.C. § 1915(e)(2)

         A. Standard of Review

         Nevertheless, because he is proceeding IFP, Plaintiff's Complaint is subject to sua sponte review, and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary relief from a defendant immune from such relief.” See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S.Ct. 1759, 1763 (2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall dismiss the case at any time if the court determines that-(A) the allegation of poverty is untrue; or (B) the action or appeal-(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be granted.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.”); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”).

         The purpose of § 1915's screening provisions are “‘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)).

         C. Plaintiff's Allegations

         Plaintiff claims that the California Department of Corrections and Rehabilitation (“CDCR”), the County of San Diego, the San Diego County Sheriff's Department, and its Sheriff, William Gore, have denied him earned conduct credits, and thus are forcing him to “serv[e] a longer sentence in county jail” in violation of the Fourteenth Amendment. (Compl. at 2-6.) Plaintiff seeks injunctive relief and $500, 000 in damages. (Id.at 6.)

         C. 42 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.