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Asberry v. Cate

United States District Court, S.D. California

April 22, 2014

TONY ASBERRY, CDCR #P-63853, Plaintiff,
MATTHEW CATE, Secretary; D. PARAMO, Waraen; WALKER, Medical Doctor; SILVA, Medical Doctor; DENBELLA, Medical Doctor; CHOW, Medical Doctor; NEWTON Medical Doctor; and JOHN DOE, Medical Doctor, Defendants.


WILLIAM Q. HAYES, District Judge.

Tony Asberry ("Plaintiff'), an inmate currently incarcerated at Richard J. Donovan Correctional Facility ("RJD") in San Diego, California, and proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff alleges prison officials at RJD have provided him with inadequate medical treatment in violation of the Eighth Amendment since he was transferred there in March 2012. See Compl. (ECF Doc. No.1) at 4-14. Plaintiff further alleges that he "believes... RJD officials are [acting in] retaliation" for a previously-filed civil action and "602s." Id. at 14. Plaintiff seeks general and punitive damages as well as injunctive relief in the form of a court order directing Defendants to return his wheelchair. Id. at 17.


After he was denied leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) without prejudice on January 2, 2014, due to his failure to provide the trust account certificates required by § 1915(a)(2), and was granted 45 days in which to either file a new properly-supported IFP or to prepay the civil filing fee required by 29 U.S.C. § 1914 in its entirety (ECF Doc. No.7), Plaintiff submitted a new Motion to Proceed IFP, dated February 13, 2014, and filed on February 19, 2014, which still fails to include the trust account documentation required by statute (ECF Doc. No. 10). Plaintiff contends he has submitted a request for the certified copies of his trust account statements to prison officials at RJD twice to no avail, and "believe that there is a coordinated effort... to block [his] efforts, " and "undermine [his] rights to challenge the conditions of his confinement." ( Id. at 6.)

However, before the Court had a chance to consider his latest IFP Motion, Plaintiff submitted another document to the Clerk on March 20, 2014, which repeated his allegations of obstruction by RJD trust account officials, and concluded with a "request to appeal to the Ninth Circuit Court of Appeals." See ECF Doc. No. 11 at 3-4.

On April 15, 2014, the Ninth Circuit issued an Order remanding Plaintiff's Notice of Appeal "for the limited purpose of enabling the district court to consider whether, in light of [Plaintiff's] February 19, 2014 motion to proceed in forma pauperis, the district court would reopen the action or whether [Plaintiff's] filing raises a substantial issue pursuant to Federal Rule of Appellate Procedure 12.1 (b)."[1] See Asberry v. Cate, et al., 19th Cir. No. 14-55476 (April 15, 2014 Order) (ECF Doc. No. 14) at *2. Thus, because the Ninth Circuit has remanded the matter for "an indicative ruling, " this Court now has jurisdiction to determine whether the case may be re-opened in light of Plaintiff's February 19, 2014 Motion to Proceed IFP.


As Plaintiff is aware, 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. See 28 U.S.C. § 1914(a).[2] An action may proceed despite the 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, if the plaintiff is a prisoner and is granted leave to proceed IFP, he nevertheless 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 also submit a "certified copy of the trust fund account statement (or institutional equivalent) 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). It is from the certified trust account statement, that 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 thereafter 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 new IFP application, Plaintiff has again failed to provide the certified copies of his trust account statements as required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. ClvLR 3.2. Andrews, 398 F.3d at 1119. However, because Plaintiff has declared under penalty of perjury that he is not employed at RJD, receives no payments from RJD, has no money or assets whatsoever, currently owes restitution, court costs, and fines, and he has attached photocopies of a CDCR 22 Inmate/Parolee Request which indicates two attempts, on January 16, 2014, and again on January 26, 2014, to obtain the trust account statements required by 28 U.S.C. § 1915(a)(2) from RJD trust account officials to no avail, the Court hereby re-opens Plaintiff s case and GRANTS his Motion to Proceed IFP (ECF Doc. No. 10). 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, 281 F.3d at 850 (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.").

And while the Court can assess no initial filing fee under these circumstances, the full balance of the $350 total owed in this case shall be collected by the Secretary of the California Department of Corrections and Rehabilitation ("CDCR") and forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

III. INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) AND 1915A(b)(1)

Notwithstanding Plaintiff's IFP status, 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(b); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

All complaints must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED.R.Crv.P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. The "mere possibility of misconduct" falls short of meeting this plausibility standard. Id. ; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

"When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) ("[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."); Barren v. Harrington, 152 ...

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