1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENDRICK BENCOMO Case No.: 3:20-cv-01550-WQH-LL

CDCR #P-48631,

12

ORDER:

Plaintiff, 13 vs. 1) GRANTING MOTION TO 14

PROCEED IN FORMA PAUPERIS

R. DIAZ, et al.,

15 [ECF No. 2] Defendants. 16

AND

17 2) DIRECTING U.S. MARSHAL TO 18

EFFECT SERVICE OF SUMMONS

19 AND COMPLAINT PURSUANT TO 28 U.S.C. § 1915(d) & 20 Fed. R. Civ. P. 4(c)(3) 21 22 Plaintiff Kendrick Bencomo, currently incarcerated at California State Prison, 23 Corcoran (“CSP-COR”) located in Corcoran, California, and proceeding pro se, has filed 24 a civil rights complaint pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. Plaintiff did 25 not prepay the civil filing fee required by 28 U.S.C. § 1914(a), but did file a Motion to 26 Proceed In Forma Pauperis (“IFP”). See ECF No. 2. 27 / / / 28 / / / 1 I. Motion to Proceed IFP 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 Cervantes, 493 F.3d at 1051. However, prisoners who are granted leave to 7 proceed IFP remain obligated to pay the entire fee in “increments” or “installments,” Bruce 8 v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams, 775 F.3d at 1185, and 9 regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & 10 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 11 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 12 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6- 13 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 14 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005) (“King”). From the certified trust 15 account statement, the Court assesses an initial payment of 20% of (a) the average monthly 16 deposits in the account for the past six months, or (b) the average monthly balance in the 17 account for the past six months, whichever is greater, unless the prisoner has no assets. See 18 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the 19 prisoner then collects subsequent payments, assessed at 20% of the preceding month’s 20 income, in any month in which his account exceeds $10, and forwards those payments to 21 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. 22 at 629. 23 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $50. See 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 28 1 Plaintiff’s CDCR Statement and Prison Certificate show that he has carried an 2 average monthly balance of $302.66, had $218.19 in average monthly deposits to his 3 account over the 6-month period immediately preceding the filing of his Complaint and 4 had an available balance of $109.13 on the books at the time of filing. See ECF No. 3 at 5. 5 28 U.S.C. § 1915(a)(2); King, 398 F.3d at 1119. Based on this accounting, the Court 6 GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 3) and assesses his initial partial 7 filing fee to be $60.53 pursuant to 28 U.S.C. § 1915(b)(1). 8 The Court will direct the Secretary of the CDCR, or his designee, to collect the initial 9 $60.53 fee assessed only if sufficient funds are available in Plaintiff’s account at the time 10 this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a 11 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 12 judgment for the reason that the prisoner has no assets and no means by which to pay the 13 initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 14 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP 15 case based solely on a “failure to pay . . . due to the lack of funds available to him when 16 payment is ordered.”). The remaining balance of the $350 total fee owed in this case must 17 be collected by the agency having custody of the prisoner and forwarded to the Clerk of 18 the Court pursuant to 28 U.S.C. § 1915(b)(2). 19 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 20 A. Standard of Review 21 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a 22 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 23 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, 24 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who 25 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 26 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 27 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 28 1 the targets of frivolous or malicious suits need not bear the expense of responding.’” 2 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 3 “The standard for determining whether a plaintiff has failed to state a claim upon 4 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 5 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 6 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 7 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 8 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 9 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 10 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 11 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 12 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 13 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 14 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 15 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 16 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 17 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 18 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 19 B. Plaintiff’s Factual Allegations 20 Plaintiff alleges that on August 25, 2018, while he was housed in the Administrative 21 Segregation Unit (“ASU”) at Richard J. Donovan State Prison (“RJD”) his cellmate 22 attempted to kill him by “stabbing him in the neck, back and stomach numerous times.” 23 Compl. at 9. The wounds were serious enough to require surgery. Id. at 9-10. Plaintiff 24 claims that on August 26, 2018, while he was in the hospital recovering from his injuries 25 and surgery, two Institutional Gang Investigators (“IGI”), who he identifies as Defendants 26 Does III and IV, visited him and asked him questions about the assault. Id. at 10. The IGIs 27 also allegedly told Plaintiff that they had recovered a letter, referred to as a “kite,” at the 28 California Institute for Men (“CIM”) before the assault which contained an order from the 1 Mexican Mafia to kill Plaintiff. Id. According to Plaintiff, Defendants Does III and IV told 2 him that “they knew that [he] was going to get hit out,” that he “had it coming” and that 3 the assailant “did a good job.” Id. at 4. 4 In November/December of 2018, Plaintiff requested protected custody status as a 5 result of the attack. Id. Plaintiff claims that during the debriefing process, Defendants Does 6 I and II, who Plaintiff identifies as an IGI Lieutenant (Doe I) and an IGI Sergeant (Doe II), 7 told him they knew about the threat to Plaintiff’s life before the assault; Defendant Doe II 8 also allegedly told Plaintiff “they fuck[ed] up.” Id. at 10. Plaintiff claims that “CDCR 9 officials and RJDCF officials in particular were aware that I was housed in a condition that 10 clearly posed a significant risk to serious harm or injury, but yet they disregard[ed] and 11 fail[ed] to respond to such risk in a reasonable and logical manner, causing Plaintiff’s pain 12 and suffering (injury).” Id. 13 C. 42 U.S.C. § 1983 14 “Section 1983 creates a private right of action against individuals who, acting under 15 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 16 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 17 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 18 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations 19 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 20 secured by the Constitution and laws of the United States, and (2) that the deprivation was 21 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 22 F.3d 1128, 1138 (9th Cir. 2012). 23 D. Discussion 24 Plaintiff alleges his Eighth Amendment rights were violated by Defendants’ failure 25 to protect him from assault by a fellow inmate. Threats to both Plaintiff’s safety and health 26 are subject to the Eighth Amendment’s demanding deliberate indifference standard. See 27 Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994); Hamby v. Hammond, 821 F.3d 1085, 28 1092 (9th Cir. 2016). “A prison official acts with ‘deliberate indifference . . . only if the 1 [official] knows of and disregards an excessive risk to inmate health and safety.’” Toguchi 2 v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Gibson v. Cnty. of Washoe, 290 3 F.3d 1175, 1187 (9th Cir. 2002), overruled on other grounds by Castro v. Cnty. of Los 4 Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016)). “Under this standard, the prison official 5 must not only ‘be aware of facts from which the inference could be drawn that a substantial 6 risk of serious harm exists,’ but that person ‘must also draw the inference.’” Id. (quoting 7 Farmer, 511 U.S. at 837). In addition, a Plaintiff must allege he suffered a physical injury 8 which is more than de minimus. Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002); 9 Fournerat v. Fleck, No. EDCV 19-0961 AB (AS), 2020 WL 4495483, at *6 (C.D. Cal. 10 July 7, 2020). 11 Plaintiff alleges Does III and IV, IGI Correctional Officers, visited him in his 12 hospital room and told him they knew about the threat against his life from a “kite” that 13 was recovered from another prison. Compl. at 2, 10. He alleges Does I, an IGI Lieutenant 14 and Doe II, an IGI Sergeant, also told him they were aware of the letter threat. Id. In 15 addition, Plaintiff alleges that Defendants Diaz and Paramo were aware of the threat, see 16 id. at 10, and given that the letter was recovered from another prison such an allegation is 17 reasonable. Thus, Plaintiff has plausibly alleged that Defendants were “aware of facts from 18 which the inference could be drawn that a substantial risk of serious harm exists” and that 19 they actually drew that inference. See Toguchi, 391 F.3d at 1057. Plaintiff has also 20 sufficiently alleged that he suffered a physical injury which is more than de minimus 21 because he states that he was stabbed repeatedly which required surgery and 22 hospitalization. Compl. at 9-10. Iqbal, 556 at 676; Jones, 733 F.2d at 649; Oliver v. Keller, 23 289 F.3d 623, 627 (9th Cir. 2002); Fournerat v. Fleck, No. EDCV 19-0961 AB (AS), 2020 24 WL 4495483, at *6 (C.D. Cal. July 7, 2020). 25 The Federal Rules of Civil Procedure do not authorize or prohibit the use of fictitious 26 parties, but Rule 10 does require a plaintiff to include the names of all parties in his 27 complaint. See Fed. R. Civ. P. 10(a). “A plaintiff may refer to unknown defendants as 28 Defendant John Doe 1, John Doe 2, John Doe 3, and so on, but he must allege specific facts 1 showing how each particular doe defendant violated his rights.” Cuda v. 2 Employees/Contractors/Agents at or OCCC, 2019 WL 2062945, at *3-4 (D. Haw. May 9, 3 2019). As noted above, Plaintiff has done so. Courts disfavor Doe pleading in an IFP case 4 because in the event the plaintiff’s complaint alleges a plausible claim for relief, it is 5 effectively impossible for the United States Marshal or deputy marshal to fulfill his or her 6 duty to serve an unnamed defendant. See Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d); 7 Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (noting that in order to properly 8 effect service under Rule 4 in an IFP case, the plaintiff is required to “furnish the 9 information necessary to identify the defendant”). The Court notes, however, that Plaintiff 10 may seek discovery to obtain the names of the Does and later amend his pleading in order 11 to substitute the true names of those defendants. See Wakefield v. Thompson, 177 F.3d 12 1160, 1163 (9th Cir. 1999) (emphasis added) (citing Gillespie v. Civiletti, 629 F.2d 637, 13 642 (9th Cir. 1980)). 14 IV. Conclusion and Order 15 For the reasons explained, the Court: 16 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 17 (ECF No. 2). 18 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 19 Plaintiff’s trust account the $60.53 initial filing fee assessed, if those funds are available at 20 the time this Order is executed, and to forward whatever balance remains of the full $350 21 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding 22 month’s income to the Clerk of the Court each time the amount in Plaintiff’s account 23 exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY 24 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 25 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, 26 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 27 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 28 1) upon Defendants and forward it to Plaintiff along with a blank U.S. Marshal Form 285. 1 In addition, the Clerk will provide Plaintiff with a certified copy of this Order, a certified 2 copy of his Complaint and the summons so that he may serve them upon Defendants. 3 5. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s as 4 completely and accurately as possible, include an address where each named Defendant 5 may be found and/or subject to service, and return them to the United States Marshal 6 according to the instructions the Clerk provides in the letter accompanying his IFP package. 7 6. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 8 upon the named Defendants as directed by Plaintiff on the USM Form 285s provided to 9 him. All costs of that service will be advanced by the United States. See 28 U.S.C. 10 § 1915(d); Fed. R. Civ. P. 4(c)(3). 11 7. ORDERS Defendants, once they have been served, to reply to Plaintiff’s 12 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 13 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be 14 permitted to “waive the right to reply to any action brought by a prisoner confined in any 15 jail, prison, or other correctional facility under section 1983,” once the Court has conducted 16 its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has 17 made a preliminary determination based on the face on the pleading alone that Plaintiff has 18 a “reasonable opportunity to prevail on the merits,” the defendant is required to respond); 19 and 20 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 21 serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’ 22 counsel, a copy of every further pleading, motion, or other document submitted for the 23 Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 24 original document he seeks to file with the Clerk of the Court, a certificate stating the 25 manner in which a true and correct copy of that document has been was served on 26 Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any 27 / / / 28 / / / 1 document received by the Court which has not been properly filed with the Clerk or which 2 || fails to include a Certificate of Service upon Defendants may be disregarded. 3 IT IS SO ORDERED. 4 || Dated: October 22, 2020 BME: ie Z. A a 5 Hon. William Q. Hayes 6 United States District Court 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28