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Carr v. Torquato

United States District Court, S.D. California

November 12, 2014

CLAUDE CARR, CDCR #E-22561, Plaintiff,
v.
J. TORQUATO, Corrections Officer; WARDEN, Calipatria State Prison, Defendants.

ORDER: (1) GRANTING PLAINTIFF'S REQUEST TO PROCEED IN FORMA PAUPERIS [DOc. No. 1] (2) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) AND § 1915A(b)(1) AND (3) GRANTING LEAVE TO AMEND

MARILYN L. HUFF, District Judge.

Claude Carr ("Plaintiff"), currently incarcerated at California State Prison's Substance Abuse Treatment Facility ("SATF") in Corcoran, California, and proceeding pro se, lodged a civil rights complaint against Correctional Officer J. Torquato and an unnamed warden ("Defendants") pursuant to 42 U.S.C. § 1983 in the Central District of California on August 4, 2014, together with a request to proceed in forma pauperis ("IFP"). (Doc. Nos. 1, 3.) On September 2, 2014, Plaintiff filed a motion for leave to amend the complaint in order to correct the spelling of Defendant Torquato's name. (Doc. No. 5.) For the reasons below, the Court grants Plaintiff's request to proceed in forma pauperis, denies Plaintiff's motion for leave to amend as moot, and sua sponte dismisses the complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).

Background

Plaintiff filed a complaint in the Central District of California claiming that Defendant Torquato violated his constitutional rights at Calipatria State Prison ("CAL") in November 2013. Plaintiff alleges that Defendant Torquato made false and libelous statements on a CDC Form 128-B "chrono" related to Plaintiff's alleged attempts to copy pornography in violation of institutional mail procedures. (Doc. No. 3 at 5.)

On September 2, 2014, Plaintiff filed a motion for leave to file an amended complaint because he noticed Defendant Torquato's last name was misspelled as "Torguato" on the Court's docket. (Doc. No. 5.) Plaintiff does not seek leave to amend his pleading; instead he seeks leave merely to correct the docket so that it reflects the proper spelling of Defendant Torquato's name.

On September 22, 2014, the Court in the Central District transferred the case to this Court for lack of proper venue pursuant to 28 U.S.C. § 1406(a), and vacated the order granting Plaintiff leave to proceed IFP and declined to rule on Plaintiff's pending motion to amend so that the transferee court could resolve both matters. (Doc. No. 7 at 2-3.)

Discussion

I. Request 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. See 28 U.S.C. § 1914(a).[1] An action may proceed despite a plaintiff's failure to prepay the entire fee only if the court grants him 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 assesses 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 then collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forwards them 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 Civil Local Rule 3.2. Andrews, 398 F.3d at 1119. Plaintiff's trust account statement shows no monthly deposits or balance and a current available balance of zero at the time he submitted it for filing. 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 [an] 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").

The Court therefore grants Plaintiff's motion to proceed IFP (Doc. No. 1), and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). The $350 balance of the filing fees required by 28 U.S.C. § 1914(a) will 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. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) ...


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