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Johnson v. Robinson

March 20, 2009

DUANE JOHNSON, PLAINTIFF,
v.
E. ROBINSON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Raymond C. Fisher United States Circuit Judge Sitting by Designation

ORDER GRANTING REQUEST TO PROCEED IN FORMA PAUPERIS AND REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CURRENTLY OGNIZABLE CLAIMS

Plaintiff Duane Johnson is a state prisoner proceeding pro se. He seeks relief under 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis under 28 U.S.C. § 1915. He also has filed an amended complaint, styled as an amended petition for a writ of habeas corpus.

I. Request to Proceed In Forma Pauperis

A prisoner who brings a civil action in forma pauperis must submit a certified copy of his inmate account statement for the six month period immediately preceding the date he filed the complaint. See 28 U.S.C. § 1915(a)(2). Here, plaintiff failed to include the required filing fee or an appropriate application to proceed in forma pauperis when he filed his complaint on September 2, 2008, Docket No. 1 ("Complaint"), so this court ordered him to submit the filing fee or an application to proceed in forma pauperis on the court-approved in forma pauperis application form, Docket No. 3. This court received a completed application form with a certified prisoner account statement on October 7, 2008, but the certified account statement was for the six month period from March 23, 2008 through September 23, 2008, i.e., not the six months immediately preceding the filing of the complaint on September 2, 2008. Docket No. 5.

Although not strictly compliant with the statute, the court concludes any deficiency is immaterial. Plaintiff signed the in forma pauperis application form on September 19, 2008, and the trust account statement was completed by a prison official on September 23, 2008. It thus appears plaintiff could not control how the prison official generated the account statement. Any technical deficiency appears to have arisen from a prison official's literal compliance with this court's in forma pauperis application form, which instructs the official to focus on "the past six months" and therefore does not provide clear direction that the relevant six month period is from the filing of the complaint. Plaintiff is plainly unable to pay the full filing fee, because his account balance presently stands at $38.45, and he did not intentionally disregard this court's earlier order. Because plaintiff has submitted a declaration that substantially complies with the requirements of 28 U.S.C. § 1915(a), his request to proceed in forma pauperis is granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). Because plaintiff's average monthly balance for the six month period reflected in the account statement was $44.14 and his average monthly deposit during that period was $8.33, see Docket No. 5, an initial partial filing fee of $8.82 is assessed by this order. See 28 U.S.C. § 1915(b)(1) (requiring prisoners proceeding in forma pauperis to pay as an initial partial filing fee "20 percent of the greater of (A) the average monthly deposits to the prisoner's account; or (B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint").

By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of 20 percent of the preceding month's income credited to his prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in his account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

II. Screening of Complaint

This court must "review, before docketing . . . or . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court [must] identify cognizable claims or dismiss . . . any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §1915A(b). Pro se pleadings, however, must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Plaintiff filed a complaint on September 2, 2008, Docket No. 1 ("Complaint"), and on November 4, 2008 filed a document styled "Amended Petition to Original Petition for Habeas Corpus," Docket No. 7 ("Amended Complaint"), accompanied by a "Request to Amend Petition for Writ of Habeas Corpus," Docket. No. 6. Under Federal Rule of Civil Procedure 15(a)(1), a party may amend a pleading as a matter of course before being served with a responsive pleading, so plaintiff properly amended his Complaint. This court must therefore determine whether the Amended Complaint, liberally construed, states a cognizable claim for relief with respect to each named defendant.

The Amended Complaint incorporates by reference the facts and allegations set forth in the Complaint. Amended Complaint, p. 1. Under Local Rule 15-220, without prior permission from the court to the contrary, an amended complaint must be "complete in itself without reference to the prior or superseded pleading." Because plaintiff is proceeding pro se and this local rule had not been brought to his attention before he filed the Amended Complaint, the court will allow plaintiff's incorporation by reference to stand and will determine whether the Complaint and Amended Complaint together state cognizable claims.

The Complaint named only correctional officer E. Robinson as a defendant. Read together with the Amended Complaint, plaintiff alleges Robinson retaliated against him for filing administrative grievances, in violation of the First Amendment, and that Robinson's visual body cavity search of plaintiff and subsequent suspension of plaintiff's fiancee's visitation privileges violated his Eighth Amendment and Fourteenth Amendment Due Process rights and also violated California law. The Amended Complaint adds as defendants to this action correctional officer S. Feudner, Sergeant B. Clark, Lieutenant S. Peterson and Captain R. Cappel, alleging they retaliated against plaintiff for filing this lawsuit.

A. Defendant Robinson

The court has reviewed the Amended Complaint and determined that it articulates one cognizable claim against Robinson under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b) for retaliation in violation of plaintiff's First Amendment rights, but has failed to state cognizable claims for ...


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