United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
Pending before the court is defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 32). Also pending are plaintiff's motion for appointment of counsel, motion for extension of time to file third amended complaint, proposed third amended complaint and proposed supplemental third amended complaint. (ECF Nos. 34, 35, 36, 39.)
Motion to Dismiss
Plaintiff did not oppose defendants' motion to dismiss. Instead, plaintiff filed a proposed third amended complaint. (ECF No. 36.) Although plaintiff did not file an opposition to defendants' motion to dismiss, the undersigned recommends that this motion be denied for the reasons stated herein.
Legal Standard for Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions, " "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[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). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Reiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
This action is proceeding on the second amended complaint filed October 20, 2014, as to plaintiff's claim challenging defendants' calculation of filing fee payments. (ECF No. 23.) On December 30, 2014, the undersigned recommended that plaintiff's motion to amend with respect to this claim be granted. (ECF No. 29.) The undersigned recommended that plaintiff's motion to amend with respect to the claim alleging improper withdrawal of money to pay restitution be denied. (Id.) On February 6, 2015, the Honorable Garland E. Burrell adopted these findings and recommendations. (ECF No. 31.)
Plaintiff alleges that defendants Duffy and Payan did not properly calculate his filing fees payments owed in two appeals filed in 2:06-cv-886. (ECF No. 23 at 8.) Plaintiff alleges that he was charged "two 40% court fee deductions" for the fees owed in 08-886. (Id.) Plaintiff alleges that, "[p]resently I am being denied any part of my funds due to my court fee debts. I am sure that the PLRA does not require 100% deduction from each deposit until the fees are paid." (Id.) Plaintiff requests injunctive relief "instructing defendants and plaintiff as to how (or wherein citations) the calculations of court fee deductions are to be assessed." (Id. at 10.)
In the December 30, 2014 findings and recommendations, the undersigned observed that plaintiff's claim alleging improper calculation of filing fee payments raised a claim over which the courts of appeal were divided. The undersigned quoted from a D.C. Circuit case which discussed this division:
The courts of appeals are divided concerning the manner in which the PLRA calls for collection of installment payments from prisoners who simultaneously owe filing fees in multiple cases. The Second and Fourth Circuits interpret § 1915(b) to cap the monthly exaction of fees at twenty percent of a prisoner's monthly income, regardless of the number of cases for which he owes filing fees. Torres v. O'Quinn, 612 F.3d 237, 252 (4th Cir. 2010); Whitfield v. Scully, 241 F.3d 264, 277 (2d Cir. 2001). Under that "per prisoner" cap, a prisoner would satisfy his obligations sequentially, first fully satisfying his obligation for his earliest case before moving on to the next one, at no time making any payment that would take his cumulative payments for that month beyond an overarching twenty-percent ceiling. By contrast, the Fifth, Seventh, Eighth, and Tenth Circuits have held that § 1915(b) requires a prisoner to make a separate installment payment for each filing fee incurred as long as no individual payment exceeds twenty percent of his monthly income. Christensen v. Big Horn Cnty. Bd. of Cnty. Comm'rs, 374 Fed.Appx. 821, 833 (10th Cir. 2010); Atchison v. Collins, 288 F.3d 177, 180 (5th Cir. 2002); Lefkowitz v. Citi-Equity Grp., 146 F.3d 609, 612 (8th Cir. ...