noting that screening pursuant to 6 § 1915A “incorporates the familiar standard applied in the context of failure to state a claim 7 under Federal Rule of Civil Procedure 12(b)(6)”
How later courts described this case
- noting that screening pursuant to 6 § 1915A “incorporates the familiar standard applied in the context of failure to state a claim 7 under Federal Rule of Civil Procedure 12(b)(6)”
- discussing 28 U.S.C. § 1915A(b)
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 RAUL A. YESCAS, III, Case No.: 23-CV-106 TWR (AHG)
CDCR #AW-1240,
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ORDER (1) GRANTING MOTION
Plaintiff,
13 TO PROCEED IN FORMA
v. PAUPERIS AND (2) DIRECTING U.S.
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MARSHAL TO EFFECT SERVICE
DAN McCOURT; PRESTON HOWARD;
15 UPON DEFENDANTS
and FRANK JOHNSON,
16 Defendants. (ECF No. 2)
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18 Presently before the Court is Plaintiff Raul A. Yescas, III’s Complaint, (ECF No. 1),
19 and Motion for Leave to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. §
20 1915(a), (ECF No. 2). Plaintiff is a pro se inmate currently housed at Mule Creek State
21 Prison in Ione, California. (See generally ECF No. 1.) Plaintiff’s Complaint, filed pursuant
22 to 42 U.S.C. § 1983, alleges that Defendants Dan McCourt, Preston Howard, and Frank
23 Johnson violated his First Amendment Right to free speech, reporting, and redress of a
24 grievance. (See generally id.) For the reasons set forth below, the Court GRANTS
25 Plaintiff’s Motion to Proceed IFP and ORDERS the U.S. Marshal to effect service upon
26 Defendants.
27 / / /
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1 ANALYSIS
2 I. Motion to Proceed IFP Pursuant to 28 U.S.C. § 1915(a)
3 A. Legal Standard
4 Any party instituting a civil action in a United States district court, except an
5 application for writ of habeas corpus, must pay a filing fee of $402.1 See 28 U.S.C.
6 § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee only
7 if they are granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v.
8 Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Still, the Prison Litigation Reform Act’s
9 (“PLRA”) amendments to § 1915 require a prisoner granted leave to proceed IFP to pay
10 the entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 83–84
11 (2016), regardless of whether the action is ultimately dismissed, see 28 U.S.C. § 1915(b)(1)
12 & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
13 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to file an affidavit
14 that includes a statement of all assets and demonstrates an inability to pay. See Escobedo
15 v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In support of this affidavit, the PLRA
16 also requires prisoners to submit a “certified copy of the trust fund account statement (or
17 institutional equivalent) for . . . the 6-month period immediately preceding the filing of the
18 complaint.” 28 U.S.C. § 1915(a)(2); see also Andrews v. King, 398 F.3d 1113, 1119 (9th
19 Cir. 2005). From the certified trust account statement, the Court assesses an initial payment
20 of 20% of (a) the average monthly deposits in the account for the past six months, or (b)
21 the average monthly balance in the account for the past six months, whichever is greater,
22 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The
23 institution having custody of the prisoner then collects subsequent payments, assessed at
24 20% of the preceding month’s income, in any month in which his account exceeds $10,
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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
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1 and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C.
2 § 1915(b)(2); Bruce, 577 U.S. at 84‒85.
3 B. Plaintiff’s Motion to Proceed IFP
4 Here, Plaintiff did not pay the filing fee required by 28 U.S.C. § 1914(a) and instead
5 filed a Motion to Proceed IFP. (See ECF No. 2.) In support of his Motion to Proceed IFP,
6 Plaintiff has submitted a sworn declaration, Prison Certificate, Trust Account Withdrawal
7 Authorization, and certified copy of his Inmate Trust Account Statement, (see generally
8 ECF No. 2), in compliance with 28 U.S.C. § 1915(a)(2). See also S.D. Cal. Civ. L.R. 3.2;
9 Andrews, 398 F.3d at 1119. The Inmate Trust Account Statement shows that Plaintiff had
10 an available balance of $0.00 at the time the statement was filed. (ECF No. 2 at 6.)
11 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP under 28 U.S.C. 1915,
12 (ECF No. 2), and DIRECTS the Secretary of the California Department of Corrections
13 and Rehabilitation, or their designee, to collect the entire $350 balance of the filing fees
14 required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the
15 installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
16 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A
17 A. Legal Standard
18 District courts must conduct a preliminary screening of all complaints filed by
19 plaintiffs proceeding IFP, see 28 U.S.C. § 1915(e)(2), and plaintiffs who are prisoners
20 seeking redress from a government entity, or officer or employee of a governmental entity,
21 see 28 U.S.C. § 1915A. Under these statutes, the Court must review and sua sponte dismiss
22 any complaint that is frivolous, malicious, fails to state a claim, or seeks damages from
23 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 2000)
24 (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004
25 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to
26 ensure that the targets of frivolous or malicious suits need not bear the expense of
27 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler
28 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
1 “The standard for determining whether a plaintiff has failed to state a claim upon
2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
4 1108, 1112 (9th Cir. 2012). The same standard applies for screening under § 1915A. See
5 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to
6 § 1915A “incorporates the familiar standard applied in the context of failure to state a claim
7 under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires that complaints
8 “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
9 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
10 omitted); Wilhelm, 680 F.3d at 1121.
11 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
12 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
13 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief
14 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial
15 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,
16 the defendant-unlawfully-harmed me accusation[s]” will not suffice. Id.; see also Moss v.
17 U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
18 B. Plaintiff’s 42 U.S.C. § 1983 Claim
19 Because Plaintiff is a prisoner who is proceeding IFP, his Complaint requires a
20 preliminary screening under 28 U.S.C. § 1915(e)(2) and § 1915A(b). Plaintiff’s claim
21 arises under 42 U.S.C. § 1983. “Section 1983 creates a private right of action against
22 individuals who, acting under color of state law, violate federal constitutional or statutory
23 rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not
24 itself a source of substantive rights, but merely provides a method for vindicating federal
25 rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal
26 quotation marks and citations omitted). “To establish § 1983 liability, a plaintiff must
27 show both (1) deprivation of a right secured by the Constitution and laws of the United
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1 States, and (2) that the deprivation was committed by a person acting under color of state
2 law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
3 Here, Plaintiff’s § 1983 claim arises under the First Amendment of the Constitution.
4 Plaintiff generally alleges that Defendants used their positions and authority to retaliate
5 against Plaintiff for exercising his First Amendment right to free speech, reporting, and
6 redressing of a grievance. (See ECF No. 1 at 2.) To state a claim for unlawful retaliation
7 under the First Amendment, an incarcerated plaintiff must allege the following: (1) prison
8 officials took adverse action against the inmate; (2) the adverse action was taken because
9 the inmate engaged in protected conduct; (3) the adverse action chilled the inmate’s First
10 Amendment rights; and (4) the adverse action did not serve a legitimate penological
11 purpose. Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005); see also Hines v. Gomez,
12 108 F.3d 265, 267 (9th Cir. 1997). Plaintiff’s Complaint meets these requirements.
13 According to the Complaint, Defendant McCourt is a supervisor and Defendants
14 Howard and Johnson are plumbers employed at Richard J. Donovan Correctional Facility
15 (“RJD”). (See ECF No. 1 at 2.) On December 20, 2021, while housed at RJD, Plaintiff
16 was working with Defendants Howard and Johnson in their capacity as plumbers. (See id.
17 at 2, 3.) According to Plaintiff, Howard and Johnson refused to fix the sinks in two prison
18 cells which had been clogged for nearly a week and had sewage coming out of them. (See
19 id. at 3.) Howard and Johnson allegedly refused to fix these sinks because they wanted to
20 work in another yard where they would be paid overtime. (See id.) When Plaintiff
21 informed Howard and Johnson that he would report them to the staff and sergeant, they
22 became angry and left. (See id.)
23 The following day, Howard and Johnson allegedly saw Plaintiff reporting to the
24 prison program office to inform Sergeant Kilough2 of the incident, and subsequently
25 refused to allow Plaintiff to work with them. (See id.) Howard and Johnson then conspired
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1 with Defendant McCourt, who allegedly falsified documents to get Plaintiff fired from his
2 position. (See id. at 3, 4 (accusing McCourt of falsely claiming that Plaintiff had a “128
3 drop crono”).) Plaintiff responded by filing a grievance for retaliation. (See id. at 4.)
4 According to the Complaint, McCourt then told an inmate housed in one of the cells with
5 the sink issues that the inmate would not be paid or allowed to work because of Plaintiff
6 and his cellmate’s grievances against McCourt, Howard, and Johnson. (See id. at 4.) This
7 caused the inmate to “ki[ck Plaintiff] off the yard,” causing Plaintiff to be placed in
8 administrative segregation. (See id.) Defendant McCourt then falsely claimed safety
9 concerns to get Plaintiff and his cellmate transferred to another prison in the hope that
10 transfer would avoid a lawsuit. (See id.) As a result of Defendants’ actions, Plaintiff seeks
11 three forms of injunctive relief: the removal of “128 drop crono” from his record;
12 permission to return to RJD; and an apology from Defendants. (See id. at 7.) Plaintiff also
13 seeks $15,000 in compensatory damages and $15,000 in punitive damages. (See id.)
14 Taking the allegations in the Complaint as true, the Court finds that Plaintiff’s First
15 Amendment claims against McCourt, Howard, and Johnson survive the “low threshold”
16 set for sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See
17 Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678.
18 CONCLUSION
19 For the foregoing reasons, the Court:
20 (1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) pursuant to 28
21 U.S.C. § 1915(a).
22 (2) ORDERS the Secretary of the CDCR, or their designee, to collect from
23 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly
24 payments from the account in an amount equal to twenty percent (20%) of the preceding
25 month’s income and forward payments to the Clerk of the Court each time the amount in
26 the account exceeds $ 10 in accordance with 28 U.S.C. § 1915(b)(2). All payments
27 SHALL be clearly identified by the name and number assigned to this action.
28 (3) DIRECTS the Clerk of Court to serve a copy of this Order on Jeff Macomber,
1 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by U.S. Mail,
2 or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.
3 (4) DIRECTS the Clerk of Court to issue summonses as to Plaintiff’s Complaint
4 (ECF No. 1) upon Defendants McCourt, Howard, and Johnson and forward them to
5 Plaintiff along with a blank U.S. Marshal Forms 285. In addition, the Clerk SHALL
6 provide Plaintiff with certified copies of this Order, a certified copy his Complaint, and the
7 summonses so that he may serve Defendants. Upon receipt of this “IFP Package,” Plaintiff
8 must complete the Forms 285 as completely and accurately as possible, include an address
9 where Defendants may be served, see S.D. Cal. Civ. L.R. 4.1(c), and return them to the
10 United States Marshal according to the instructions the Clerk provides in the letter
11 accompanying the IFP package.
12 (5) ORDERS the U.S. Marshal to serve a copy of the Complaint and summons
13 upon Defendants as directed by Plaintiff on the U.S. Marshal Forms 285, and to file
14 executed waivers of personal service upon Defendants with the Clerk of Court as soon as
15 possible after their return. Should a Defendant fail to return the U.S. Marshal’s request for
16 waiver of personal service within 90 days, the U.S. Marshal shall instead file the completed
17 Form U.S. Marshal 285 Process Receipt and Return with the Clerk of Court, include the
18 date the summons, Complaint, and request for waiver was mailed to that Defendant, and
19 indicate why service upon the party remains unexecuted. All costs of that service will be
20 advanced by the United States; however, if a Defendant located within the United States
21 fails, without good cause to sign and return the waiver requested by the Marshal on
22 Plaintiff’s behalf, the Court will impose upon the Defendant any expenses later incurred in
23 making personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
24 (6) ORDERS Defendants, once they have been served, to reply to Plaintiff’s
25 Complaint and any subsequent pleadings within the time provided by the applicable
26 provisions of Federal Rule of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. §
27 1997e(g)(2) (stating that while a defendant may occasionally be permitted to “waive the
28 right to reply to any action brought by a prisoner . . . under section 1983,” once the Court
1 || has conducted its sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b),
2 ||and thus, has made a preliminary determination based on the face on the pleading that
3 || Plaintiff has a “reasonable opportunity to prevail on the merits,” defendant is required to
4 ||respond).
5 (7) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to
6 ||serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’
7 counsel, a copy of every further pleading, motion, or other document submitted for the
8 ||Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every
9 || original document he seeks to file with the Clerk of the Court, a certificate stating the
10 |}manner in which a true and correct copy of that document was served on Defendants or
11 counsel, and the date of that service. See S.D. Cal. Civ. L.R. 5.2. Any document
12 received by the Court which has not been properly filed with the Clerk, or which fails to
13 |}include a Certificate of Service upon the Defendants, may be disregarded.
14 IT IS SO ORDERED.
15 Dated: March 20, 2023 —_——
i (5m) (Qe
17 Honorable Todd W. Robinson
8 United States District Judge
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