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Donnie Ray Mckinley, Cdcr # H-83058 v. Matthew Cates; L.S. Mcewen

September 19, 2011


The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge



(2) DISMISSING ACTION PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)

Plaintiff, a state inmate currently incarcerated at Calipatria State Prison and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. In addition, Plaintiff has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a).


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). 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 [ECF No. 2] and assesses no initial partial filing fee per 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.

Plaintiff was convicted and sentenced to life without the possibility of parole in 1997. (See Pl.'s Compl, Ex. 1, Abstract of Judgment dated January 29, 1997.) Plaintiff claims that, beginning in 1997, prison officials began garnishing his inmate trust account to pay towards his restitution fine. (See Compl. at 3.) However, Plaintiff claims that he discovered in 2010 that the CDCR had been "illegally collecting" money from his inmate account because Plaintiff claims that the "oral pronouncement" of his sentence did not include the restitution fine. (Id.) Instead, the restitution fine was added later in a minute order by Defendant E. Mercer, Riverside Superior Court Clerk. (Id.) Plaintiff claims that this minute order is "erroneous." (Id.) Plaintiff filed a Petition for Writ of Habeas Corpus in Riverside Superior Court seeking correction of this issue. On April 20, 2011, Superior Court Judge Jorge Hernandez denied Plaintiff's Petition finding that "[t]he documents supplied in Petitioner's response" does "demonstrate that some sentencing and abstract of judgment errors occurred that appear to this court to have been cured."

(Compl, Ex. 5, In re Donnie McKinney, Cal. Superior Court Case No. RIC10019910, Order denying Petition for Writ of Habeas Corpus dated Apr. 20, 2011.)

Plaintiff seeks to hold liable the Clerk of Court for the County of Riverside for allegedly entering a minute order into the Court's docket which Plaintiff claims was fraudulent. Plaintiff seeks to sue prison officials for injunctive relief by requesting that this Court order prison officials to stop taking funds from his trust account and applying them to the allegedly invalid restitution fine. (See Compl. at 8.)

First, Defendant Mercer, who is alleged to have filed the minute order regarding restitution, is entitled to absolute quasi-judicial immunity. See Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1390 (9th Cir. 1987) ("Court clerks have absolute quasi-judicial immunity from damages for civil rights ...

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