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Eric R. Lindfors v. Larry Small; Matthew Cate; Tim Ochoa; G.J.

February 17, 2011

ERIC R. LINDFORS, PLAINTIFF,
v.
LARRY SMALL; MATTHEW CATE; TIM OCHOA; G.J. JANDA; G. TRUJILLO;
G. STRATTON; G. EDWARDS;
BELTRAN; R. DAVIS; J. JIMENEZ; A.R. BETTENCOURT; JOSHUA ROCHA; MATTHEW RESLER; E. GARCIA; R. FREGOSA; S. RUTLEDGE; F.Z. MATA; J. MANNING; E. LOYA; A. ADAMS, DEFENDANTS



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

CDCR # P-86975

(1) GRANTING MOTION TO AND (2) DISMISSING FIRST AMENDED

ORDER:

PROCEED IN FORMA PAUPERIS STATE A CLAIM PURSUANT TO 28 COMPLAINT FOR FAILING TO A. U.S.C. §§ 1915(e)(2)(B) & 1915A(b)

Plaintiff, a state inmate currently incarcerated at the California State Prison - Los Angeles County located in Lancaster, California, and proceeding pro se, has filed a civil rights First Amended Complaint pursuant to 42 U.S.C. § 1983. Plaintiff has also filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 6], along with a "Motion for Permission Under Civil Local Rules 15.1 to Remove all Exhibits" [Doc. No. 7].

I. MOTION TO PROCEED IFP

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 party's failure to pay only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493

F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however, remain obligated to pay the entire fee in installments, regardless of whether the action is ultimately dismissed for any reason. See 28 U.S.C. § 1915(b)(1) & (2).

The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C. § 1915(a)(1), and that he has attached a certified copy of his trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff's trust account statement shows that he has insufficient funds from which to pay an initial partial filing fee.

Accordingly, the Court GRANTS Plaintiff's Motion to Proceed IFP [Doc. No. 6] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the Court further orders the Secretary of the California Department of Corrections and Rehabilitation ("CDCR") to garnish the entire $350 balance of the filing fees owed in this case, collect and forward them to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

II. SCREENING PURSUANT TO 28U.S.C.§§1915(e)(2)&1915A(b)

The Prison Litigation Reform Act ("PLRA")'s amendments to 28 U.S.C. § 1915 also obligate 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)(B) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any prisoner civil action and all other IFP 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 n.1 (9th Cir. 2000) (§ 1915A).

Here, while the Court finds that Plaintiff has sufficiently alleged a retaliation claim against Defendants Rocha, Resler and Loya, he has failed to sufficiently allege a claim ...


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