Reayes v. Madden

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 KEJUAN D. REAYES, Case No.: 3:23-cv-0254 DMS KSC CDCR #AW-5139, [11] ORDER: Plaintiff, [12] vs. 1) GRANTING MOTION TO [13] PROCEED IN FORMA PAUPERIS 14 [ECF No. 2]; RAYMOND MADDEN; SCOTT [15] STEADMAN; JASON MARTINEZ; 2) GRANTING MOTION FOR 16 FLORES; LUGO; RODRIGUEZ; DOES RELIEF FROM GO653A [ECF No. 3]; 1 THROUGH 8, [17] Defendant. AND [18] 3) DIRECTING U.S. MARSHAL TO [19] EFFECT SERVICE OF COMPLAINT 20 AND SUMMONS UPON DEFENDANTS PURSUANT TO 28 21 U.S.C. § 1915 (d) & Fed. R. Civ. P. 22 4(c)(3) [23] 24 Plaintiff Kejuan D. Reayes, a prisoner at Richard J. Donovan Correctional Facility 25 (“RJD”) in San Diego, California, and proceeding pro se, has filed a civil rights action 26 pursuant to 42 U.S.C. § 1983 . See Compl., ECF No. 1. Plaintiff claims RJD Correctional 27 Officers used excessive force against him in violation of his Eighth Amendment right to 28 be free from cruel and unusual punishment. See generally id. 1 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914 (a) when 2 he filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) 3 pursuant to 28 U.S.C. § 1915 (a) (ECF No. 2). In addition, Plaintiff has filed a “Motion to 4 be excused from complying with General Order No. 653.” (ECF No. 3.) 5 I. Motion to Proceed IFP 6 All parties instituting any civil action, suit or proceeding in a district court of the 7 United States, except an application for writ of habeas corpus, must pay a filing fee of 8 $402.1 See 28 U.S.C. § 1914 (a). The action may proceed despite a plaintiff’s failure to 9 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 10 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 11 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 12 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 13 Bruce v. Samuels, 577 U.S. 82 , 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th 14 Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 15 § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 16 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 17 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 18 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 19 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 20 trust account statement, the Court assesses an initial payment of 20% of (a) the average 21 monthly deposits in the account for the past six months, or (b) the average monthly 22 balance in the account for the past six months, whichever is greater, unless the prisoner 23 has no assets. See 28 U.S.C. § 1915 (b)(1); 28 U.S.C. § 1915 (b)(4). The institution having 24 custody of the prisoner then collects subsequent payments, assessed at 20% of the [26] 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See [27] 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed [28] 1 preceding month’s income, in any month in which his account exceeds $10, and forwards 2 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915 (b)(2); 3 Bruce, 577 U.S. at 84. 4 A copy of Plaintiff’s CDCR Inmate Statement Report, as well as a Prison 5 Certificate completed by an accounting officer at RJD, has been submitted on Plaintiff’s 6 behalf. See ECF No. 4 at 1-3; 28 U.S.C. § 1915 (a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 7 F.3d at 1119. These statements show Plaintiff has carried an average monthly balance of 8 $6.20, and average monthly deposits of $4.96 to his account over the 6-month period 9 immediately preceding the filing of his Complaint, but only $0.00 available balance on 10 the books at the time of filing. See ECF No. 4 at 3. 11 Based on this accounting, the Court GRANTS Plaintiff’s Motion to Proceed IFP 12 (ECF No. 2) and assesses an initial partial filing fee of $.31 pursuant to 28 U.S.C. 13 § 1915(b)(1). However, this initial fee need be collected only if sufficient funds are 14 available in Plaintiff’s account at the time this Order is executed. See 28 U.S.C. 15 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 16 civil action or appealing a civil action or criminal judgment for the reason that the 17 prisoner has no assets and no means by which to pay the initial partial filing fee.”); 18 Bruce, 577 U.S. at 86; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915 (b)(4) acts 19 as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a 20 “failure to pay ... due to the lack of funds available to him when payment is ordered.”). 21 The remaining balance of the $350 total fee owed in this case must be collected by the 22 agency having custody of Plaintiff and forwarded to the Clerk of the Court pursuant to 28 23 U.S.C. § 1915 (b)(2). 24 II. Motion for Relief from General Order 653A 25 On June 20, 2018, this Court entered General Order 653A which sets forth the 26 agreement between the United States District Court for the Southern District of California 27 and the CDCR to participate in a program “whereby initial pleadings submitted by 28 prisoners in civil rights cases under 42 U.S.C. § 1983 are electronically filed.” See 1 General Order No. 653A at 1. The procedures for filing include, in part, that “Plaintiffs 2 will provide their complaint and any other initial documents to CDCR” and the “CDCR 3 staff will scan all initial documents” and “promptly e-mail the documents to the Clerk of 4 Court for filing.” Id. at 2-3 . 5 On February 6, 2023, this Court received Plaintiff’s initial filings by mail in 6 violation of General Order No. 653A. Included with the Plaintiff’s Complaint, he filed a 7 “Motion to be excused from complying with General Order No. 653.” (ECF No. 3.) In 8 this Motion, Plaintiff declares that “inmates on C yard are not being scheduled for 9 physical access to the law library unless they have Priority Library User “PLU” status 10 which is for inmates who have court deadlines” due to a Covid-19 outbreak. See Pl.’s 11 Mot. at 1. 12 Thus, Plaintiff is not able to attend the law library and informs the Court that RJD 13 Senior Law Librarian R. Blahnick has told him that an inmate cannot e-file a complaint 14 unless he can be physically “present at the law library to witness any librarian signing 15 documentation showing the case was e-filed.” Id. at 2 . 16 However, Senior Law Librarian R. Blahnick’s alleged statements to Plaintiff are 17 not incompliance with the Memorandum of Understanding (“MOU”) between the Court 18 and the CDCR . There is no requirement that an inmate be physically present when the 19 complaint is being scanned and emailed. In fact, the MOU between the Court and the 20 CDCR addresses the situation in which an inmate is unable to be physically present when 21 the initial filing documents are scanned. Specifically, the MOU states that the “CDCR 22 will implement a procedure for collection of documents from inmate plaintiffs. This 23 procedure may include a drop box or dispatch form which contemplates limited access to 24 administratively segregated (AD-SEG) inmates. The appropriate staff at the facilities 25 shall keep a record in the form of a log of each complaint and associated documents 26 scanned and emailed to the Court. The log shall indicate the identity of the staff member, 27 and the date the documents were received, scanned, and e-mailed to the Court.” [28] 1 Accordingly, the Plaintiff need not be physically present at the time his documents 2 were scanned and in light of the alleged failure of the CDCR to follow the MOU in this 3 instance, the Court will GRANT Plaintiff’s Motion to be excused from e-filing his initial 4 Complaint as generally required by General Order No. 653A. 5 III. Screening Pursuant to 28 U.S.C. §§ 1915 (e)(2)(B) and 1915A(b) 6 A. Standard of Review 7 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a 8 pre-answer screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A(b). Under these 9 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 10 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 11 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 12 (discussing 28 U.S.C. § 1915 (e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 13 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 14 the targets of frivolous or malicious suits need not bear the expense of responding.’” 15 Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 2014) (citation omitted). 16 “The standard for determining whether a plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 19 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 20 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 21 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 22 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 23 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 24 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121 . 25 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 26 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 27 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for 28 relief [is] ... a context-specific task that requires the reviewing court to draw on its 1 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 2 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 3 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962 , 969 4 (9th Cir. 2009). 5 B. Factual Allegations 6 On August 15, 2022, Plaintiff was using the phone to speak with his family “in 7 regard to one of [his] family members funeral.” Compl. at 6. Correctional officers Lugo 8 and Rodriguez approached Plaintiff and told him that he had been “on the phone to long 9 and told [Plaintiff] to take it back to his cell and hang up.” Id. Plaintiff informed them 10 that he was talking to his family and refused to hang up. See id. Lugo and Rodriguez 11 told Plaintiff to “cuff up” but he refused and instead he sat on the floor, folded his arms 12 across his chest, and asked for a sergeant to be called to mediate the situation. Id. 13 Lugo and Rodriguez refused to call a sergeant, activated an alarm but Plaintiff laid 14 on his back. Id. Other officers responded to the alarm and said, “flip him on his 15 stomach.” Id. at 7. Plaintiff was on flipped to his stomach and his arms were still pinned 16 under his chest. See id. Lugo and Rodriguez, along with the unnamed officers, began 17 kneeing Plaintiff in the ribs or witnessed this occurring but did not stop it from 18 happening. See id. Then an officer placed their knee on Plaintiff’s neck “preventing him 19 from being able to breathe in a normal manner” while all the other officers observed this 20 happening. Id. at 9. In order that he would be able to breathe, Plaintiff released his arms 21 and submitted to being placed in handcuffs. See id. at 12. 22 Plaintiff alleges that Defendants would have known that he has a heart condition 23 and “should have used the least restrictive force on [him] to gain [his] compliance on 24 August 15, 2022 but instead chose to use excessive force.” Id. at 13. 25 Plaintiff seeks injunctive relief, $40,000 in compensatory damages, and $460,000 26 in punitive damages. See id. at 19. 27 / / / 28 / / / 1 C. 42 U.S.C. § 1983 2 “Section 1983 creates a private right of action against individuals who, acting 3 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 4 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff 5 must show both (1) deprivation of a right secured by the Constitution and laws of the 6 United States, and (2) that the deprivation was committed by a person acting under color 7 of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 8 D. Excessive Force Claims 9 The allegations in Plaintiff’s Complaint are pleaded with enough factual 10 sufficiency to survive the “low threshold” set for sua sponte screening as required by 28 11 U.S.C. §§ 1915 (e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123 ; Iqbal, 556 U.S. at 12 678; Hudson v. McMillian, 503 U.S. 1, 5 , (1992) (unnecessary and wanton infliction of 13 pain violates the Cruel and Unusual Punishments Clause of the Eighth Amendment); 14 Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (for claims arising out of the use 15 of excessive physical force, the issue is “whether force was applied in a good-faith effort 16 to maintain or restore discipline, or maliciously and sadistically to cause harm.”) (citing 17 Hudson, 503 U.S. at 7 ) 18 Therefore, the Court will order the U.S. Marshal to effect service upon Defendants2 [21] 2 However, Plaintiff must identify the Doe Defendants, see Farmer, 511 U.S. at 833, 837, and substitute 22 their true names in an amended pleading before the United States Marshal will be able to execute service upon them. See Aviles v. Village of Bedford Park, 160 F.R.D. 565, 567 (1995) (Doe defendants must be 23 identified and served within [90] days of the commencement of the action against them); Fed. R. Civ. P. 15(c)(1)(C) & 4(m). Generally, Doe pleading is disfavored, Gillespie v. Civiletti, 629 F.2d 637, 642 (9th [24] Cir. 1980), and in most instances it is impossible for the United States Marshal to serve a party identified 25 only as a Doe. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (in order to properly effect service under Rule 4 in an IFP case, the plaintiff is required to “furnish the information necessary to 26 identify the defendant.”); Finefeuiaki v. Maui Cmty. Corr. Ctr. Staff & Affiliates, 2018 WL 3580764 , at *6 (D. Haw. July 25, 2018) (noting that “[a]s a practical matter, the United States Marshal cannot serve 27 a summons and complaint on an anonymous defendant.”). However, where the identity of an alleged party is not known prior to filing of an action, Ninth Circuit authority permits Plaintiff the opportunity to [28] 1 on Plaintiff’s behalf. See 28 U.S.C. § 1915 (d) (“The officers of the court shall issue and 2 serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he 3 court may order that service be made by a United States marshal or deputy marshal ... if 4 the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 .”).3 5 III. Conclusion and Order 6 For the reasons explained, the Court: 7 1. GRANTS Plaintiff’s Motion to be excused from General Order No. 653A 8 (ECF No. 3). 9 2. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915 (a) 10 (ECF No. 2). 11 3. DIRECTS the Secretary of the CDCR, or their designee, to collect from 12 Plaintiff’s trust account the $.31 initial filing fee assessed, if those funds are available at 13 the time this Order is executed, and to forward whatever balance remains of the full $350 14 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding 15 month’s income to the Clerk of the Court each time the amount in Plaintiff’s account 16 exceeds $10 pursuant to 28 U.S.C. § 1915 (b)(2). ALL PAYMENTS MUST BE 17 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 18 ACTION. 19 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 20 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by 21 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov. 22 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 23 No. 1) upon Defendants, and forward it to Plaintiff along with a blank U.S. Marshal Form [25] 26 uncover their identity, or his pleading requires dismissal for other reasons. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie, 629 F.2d at 642 ). 27 3 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring.” Teahan v. [28] 1 285. In addition, the Clerk will provide Plaintiff with certified copies of this Order, a 2 certified copies of his Complaint, and the summons so that he may serve Defendants. 3 Upon receipt of this “IFP Package,” Plaintiff must complete the USM Form 285 as 4 completely and accurately as possible, include an address where Defendants may be 5 found and/or subject to service pursuant to S.D. Cal. CivLR 4.1c., and return it to the 6 U.S. Marshal according to the instructions the Clerk provides. 7 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 8 upon Defendants upon receipt and as directed by Plaintiff on the completed USM Form 9 285, and to promptly file proof of service, or proof of any attempt at service unable to be 10 executed, with the Clerk of Court. See S.D. Cal. CivLR 5.2. All costs of that service will 11 be advanced by the United States. See 28 U.S.C. § 1915 (d); Fed. R. Civ. P. 4(c)(3). 12 6. ORDERS Defendants, once served, to reply to Plaintiff’s Complaint within 13 the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). 14 See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive 15 the right to reply to any action brought by a prisoner confined in any jail, prison, or other 16 correctional facility under section 1983,” once the Court has conducted its sua sponte 17 screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A(b), and thus, has made a 18 preliminary determination based on the face on the pleading alone that Plaintiff has a 19 “reasonable opportunity to prevail on the merits,” defendant is required to respond). 20 7. 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 served on Defendants 26 or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. 27 Any document received by the Court which has not been properly filed with the 28 Clerk or which fails to include a Certificate of service upon Defendants, or their counsel, 1 || may be disregarded. 2 IT IS SO ORDERED. 3 ||Dated: March 16, 2023 > □ p 4 a Yn. Hon. Dana M. Sabraw, Chief Judge United States District Court [9] 10 cc: Litigation Coordinator, Richard J. Donovan Correctional Facility, 480 Alta Road, San Diego, California 92179 Warden, Richard J. Donovan Correctional Facility, 480 Alta Road, San Diego, 1S California 92179 Kori Salas, Esq., Reception Center and Court Liaison, CDCR Office of Legal Affairs, 1515 S Street, Sacramento, California 95811 [28] 10 oo