1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TRISTIN KING, Case No.: 3:20-CV-1254 JLS (AHG)

CDCR #AW-9524,

12

ORDER: (1) GRANTING MOTION

Plaintiff, 13 TO PROCEED IN FORMA vs. PAUPERIS; AND (2) DIRECTING 14

U.S. MARSHAL TO EFFECT

15 SERVICE OF SUMMONS AND

C/O FIERO; COMPLAINT

16

C/O WOLLESEN,

17 Defendants. 18 19 Plaintiff Tristin D. King, currently housed at the Richard J. Donovan Correctional 20 Facility (“RJD”) located in San Diego, California, and proceeding pro se, has filed a civil 21 rights Complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff claims 22 that California Department of Corrections and Rehabilitation (“CDCR”) correctional 23 officers failed to protect him from an attack by another inmate in violation of his Eighth 24 Amendment rights. (See id.) 25 Plaintiff did not pay the fee required by 28 U.S.C. § 1914(a) when he filed his 26 Complaint; instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 27 to 28 U.S.C. § 1915(a) (ECF No. 2). 28 /// 1 I. Motion to Proceed In Forma Pauperis 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 9 Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 10 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 11 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly balance 18 in the account for the past six months, whichever is greater, unless the prisoner has no 19 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 20 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 21 month’s income, in any month in which his account exceeds $10, and forwards those 22 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 23 136 S. Ct. at 629. 24 /// 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 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 28 1 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 2 Statement Report recording his balances and deposits over the 6-month period preceding 3 the filing of his Complaint. See ECF No. 4; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; 4 Andrews, 398 F.3d at 1119. This Report shows that Plaintiff had a balance of only $0.12 5 at the time of filing. See ECF No. 4 at 1. 6 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2). See 7 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from 8 bringing a civil action or appealing a civil action or criminal judgment for the reason that 9 the prisoner has no assets and no means by which to pay the initial partial filing fee”); 10 Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts 11 as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure 12 to pay . . . due to the lack of funds available to him when payment is ordered”). The Court 13 declines to “exact” any initial filing fee because his trust account statement shows he “has 14 no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California 15 Department of Corrections and Rehabilitation (“CDCR”) to collect the entire $350 balance 16 of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court 17 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 18 II. Screening of Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 19 A. Legal Standard 20 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 21 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, 22 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 23 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 24 immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C. 25 § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc)); 26 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 27 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 28 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 1 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 2 680, 681 (7th Cir. 2012)). A complaint is “frivolous” if it “lacks an arguable basis either 3 in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). 4 “The standard for determining whether a plaintiff has failed to state a claim upon 5 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 6 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 7 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 8 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 9 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 10 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 11 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 12 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 13 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 14 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 15 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 16 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 17 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 18 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 19 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 20 B. 42 U.S.C. § 1983 21 “Section 1983 creates a private right of action against individuals who, acting under 22 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 23 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 24 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 25 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations 26 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a 27 right secured by the Constitution and laws of the United States, and (2) that the deprivation 28 /// 1 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 2 698 F.3d 1128, 1138 (9th Cir. 2012). 3 C. Eighth Amendment claims 4 The Court finds Plaintiff’s Eighth Amendment allegations are sufficient to survive 5 the “low threshold” set for sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 6 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; United States v. 7 Williams, 842 F.3d 1143, 1153 (9th Cir. 2016) (the Eighth Amendment “requires that 8 prison officials ‘must take reasonable measures to guarantee the safety of the inmates’”) 9 (quoting Farmer v. Brennan, 511 U.S. 825, 833, 847 (1994) (“[P]rison officials have a duty 10 [under the Eighth Amendment] . . . to protect prisoners [and therefore] may be held liable 11 . . . if [they] know[] that inmates face a substantial risk of serious harm and disregard[] that 12 risk by failing to take reasonable measures to abate it.”). “[I]t does not matter whether the 13 risk comes from a single source or multiple sources, any more than it matters whether a 14 prisoner faces an excessive risk . . . for reasons personal to him or because all prisoners in 15 his situation face such a risk.” Farmer, 511 U.S. at 843; Lemire v. Cal. Dep’t of Corr. & 16 Rehab., 726 F.3d 1062, 1076 (9th Cir. 2013); Robins v. Meecham, 60 F.3d 1436, 1442 (9th 17 Cir. 1995) (“[A] prison official can violate a prisoner’s Eighth Amendment rights by failing 18 to intervene.”). 19 Therefore, the Court will direct the U.S. Marshal to effect service of summons 20 Plaintiff’s Complaint on Defendants Fiero and Wollesen on his behalf. See 28 U.S.C. 21 § 1915(d) (“The officers of the court shall issue and serve all process, and perform all duties 22 in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by 23 a United States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in 24 forma pauperis under 28 U.S.C. § 1915.”). 25 III. Conclusion and Order 26 For the reasons explained, the Court: 27 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 28 (ECF No. 2); 1 2. DIRECTS the Secretary for the CDCR, or their designee, to collect from 2 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 3 payments from his account in an amount equal to twenty percent (20%) of the preceding 4 month’s income and forwarding those payments to the Clerk of the Court each time the 5 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 6 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 7 THIS ACTION; 8 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, 9 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 10 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 11 No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for Defendants. 12 In addition, the Clerk will provide Plaintiff with a certified copy of this Order, a certified 13 copy of his Complaint and the summons so that he may serve these Defendants. Upon 14 receipt of this “IFP Package,” Plaintiff must complete the Form 285s as completely and 15 accurately as possible, include an address where each named Defendant may be found 16 and/or subject to service, and return them to the United States Marshal according to the 17 instructions the Clerk provides in the letter accompanying his IFP package; 18 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 19 upon the Defendants as directed by Plaintiff on the USM Form 285s provided to him. All 20 costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. 21 R. Civ. P. 4(c)(3); 22 6. ORDERS Defendants, once he has been served, to reply to Plaintiff’s 23 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 24 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be 25 permitted to “waive the right to reply to any action brought by a prisoner confined in any 26 jail, prison, or other correctional facility under section 1983,” once the Court has conducted 27 its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has 28 made a preliminary determination based on the face on the pleading alone that Plaintiff has 1 “reasonable opportunity to prevail on the merits,” the defendant is required to respond); 2 || and 3 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 4 ||serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’ 5 ||counsel, a copy of every further pleading, motion, or other document submitted for the 6 ||Court’s consideration pursuant to Federal Rule of Civil Procedure 5(b). Plaintiff must 7 \|include with every original document he seeks to file with the Clerk of the Court, a 8 ||certificate stating the manner in which a true and correct copy of that document has been 9 || was served on Defendants or their counsel, and the date of that service. See S.D. Cal. 10 ||CivLR 5.2. Any document received by the Court which has not been properly filed with 11 Clerk or which fails to include a Certificate of Service upon Defendants may be 12 || disregarded. 13 IT IS SO ORDERED. 14 ||Dated: August 18, 2020 . tt f te 15 on. Janis L. Sammartino 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28