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Mallory v. Commissary Store at GBDF

United States District Court, S.D. California

October 16, 2014

LARRY G. MALLORY, Booking No. 12527706, Plaintiff,
v.
COMMISSARY STORE at GBDF; GEORGE BAILEY JAIL; and CATHERINE FEHAY, Religious Coordinator, Defendants.

ORDER: (1) GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS AND GARNISHING BALANCE FROM INMATE'S TRUST ACCOUNT PURSUANT TO 28 U.S.C. § 1915(a) [ECF Doc. No. 2] AND (2) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(i) AND 28 U.S.C. § 1915A(b)(1)

ROGER T. BENITEZ, District Judge.

Larry G. Mallory ("Plaintiff"), a state prisoner currently serving his sentence at the San Diego County Sheriff's Department George Bailey Detention Facility ("GBDF"), in San Diego, has filed a civil rights complaint ("Compl.") pursuant to 42 U.S.C. § 1983 (Doc. No. 1). Plaintiff claims the GBDF, its commissary, and a religious coordinator at GBDF have denied his First and Eighth Amendment rights by failing to provide him kosher hygiene products. See Compl. at 3, 4. He seeks injunctive relief preventing Defendants from taking "any reprisals against [him], " and $4 million in general and punitive damages. Id. at 7.

Plaintiff did not prepay the filing fee required to commence a civil action pursuant to 28 U.S.C. § 1914(a) at the time he filed suit; instead he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2).

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 $400.[1] See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if he or she 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, pursuant to the Prison Litigation Reform Act ("PLRA"), if the plaintiff is a prisoner and leave to proceed IFP is granted, he or she is permitted to proceed without prepayment of the full fee, but nevertheless remains obligated to pay the entire fee in installments, regardless of whether the underlying civil action is dismissed for other reasons. 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 prison certificate documenting his account activity at GBDF for the six-month period preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and CivLR 3.2. Plaintiff's trust account certificate indicates he has had an average monthly balance of $0.14, and average monthly deposits of $50.58, but only $0.82 in available funds in his account at the time his Complaint was filed. From this accounting, the Court finds Plaintiff has insufficient available funds from which to pay any initial partial filing fee. See 28 U.S.C. § 1915(b)(4).

Therefore, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF Doc. No. 2) and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fee owed must 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. SUA SPONTE SCREENING PER 28 U.S.C. § 1915(e)(2) AND § 1915A(b)

A. Standard

The PLRA also requires that the Court 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 statutes, 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; Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)).

Every complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.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)). "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." Id. at 679. "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 Serv., 572 F.3d 962, 969 (9th Cir. 2009).

While a plaintiff's factual allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts "have an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt, " Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985)), it may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th ...


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