The opinion of the court was delivered by: Hon. John A. Houston United States District Judge
ORDER: (1) GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING INITIAL PARTIAL FILING FEE AND GARNISHING BALANCE FROM PRISONER'S TRUST ACCOUNT PURSUANT TO 28 U.S.C. § 1915(a) [Doc. No. 2]; (2) DENYING PLAINTIFF'S MOTION FOR ORDER DIRECTING THE FILING OF COMPLAINT NUNC PRO TUNC WITHOUT PREJUDICE [Doc. No. 3] AND (3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF COMPLAINT PURSUANT TO FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d)
Tyun S. Dodson ("Plaintiff"), a state prisoner currently incarcerated at California State Prison Substance Abuse and Treatment Facility in Corcoran ("SATF"), California, and proceeding in pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff claims prison officials at Calipatria and Corcoran State Prisons violated his rights to due process at a disciplinary hearing, subsequent re-hearings and classification committee review hearings, all of which allegedly resulted in his serving a Security Housing Unit ("SHU") term of more than 500 days. (Compl. at 4-17.) Plaintiff further alleges Defendants conspired and retaliated against him for exercising his First Amendment rights by improperly processing one of his CDC 602 inmate appeals and by fabricating criminal charges against him. (Id. at 17-25.) Plaintiff seeks injunctive relief as well as compensatory and punitive damages. (Id. at 27.) Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a) when he filed this action; instead he has submitted a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. Plaintiff has also submitted a "Motion for Nunc Pro Tunc Filing of Civil Complaint" [Doc. No. 3] requesting that the Court "relate" his Complaint, which was received by the Court on July 14, 2010, back to April 8, 2010, the date he alleges to have originally handed his pleading over to correctional staff at SATF for mailing. See Pl.'s Mem. of P&As in Supp. of Mot. [Doc. No. 3] at 5-6.
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed IFP remains obligated to pay the entire fee in installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a prisoner seeking leave to proceed IFP must submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Andrews, 398 F.3d at 1119. This statement shows an available balance of $4.04 as of March 29, 2010, an average monthly balance of $26.90 and average monthly deposits of $42.96. Based on this financial information, the Court GRANTSPlaintiff's Motion to Proceed IFP [Doc. No. 2] and assesses an initial partial filing fee of $8.59 pursuant to 28 U.S.C. § 1915(b)(1).
However, the Secretary for the California Department of Corrections and Rehabilitation or his designee, shall collect this initial fee only if sufficient funds in Plaintiff's account are available at the time this Order is executed pursuant to the directions set forth below. See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure to pay ... due to the lack of funds available to him when payment is ordered."). The remaining balance shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
II. MOTION FOR NUNC PRO TUNC FILING OF COMPLAINT
Plaintiff has also filed a Motion and Declaration requesting that the Court consider his Complaint filed nunc pro tunc to April 8, 2010, the date he alleges to have given it to a correctional officer at SATF for mailing. See Pl.'s Decl. in Supp. of Motion [Doc. No. 3] at 4 ¶ 2; see also Houston v. Lack, 487 U.S. 266, 270-72, 276 (1988) (prison "mailbox rule," provides that notices of appeal submitted by pro se prisoners are considered filed on the date they are delivered to prison authorities for forwarding to the district court); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) ("mailbox rule" applies to filing of § 1983 complaints). Thus, while his Complaint was not received by the Clerk until July 14, 2010, Plaintiff seeks to have it deemed "filed" as much as three months earlier, worried that he "is surely past the statutory time for filing at least one cause of action." See Pl.'s Decl. in Supp. of Mot. at 4 ¶ 6.
Because it is not clear from the face of Plaintiff's Complaint which, if any, of his claims may be time-barred, see Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (court may dismiss complaint as untimely only if the allegations in the complaint, construed with the required liberality, would not permit the plaintiff to prove that the statute was tolled), and the running of the statute of limitations period is not a pleading requirement, but rather, an affirmative defense, see FED.R.CIV.P. 8(c)(1); Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), the Court DENIES Plaintiff's Motion for Nunc Pro Tunc Filing without prejudice as premature.
III. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)&1915A(b)
The PLRA also obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A).
"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's duty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a pro se civil rights complaint, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of ...