United States District Court, S.D. California
ORDER 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
PURSUANT TO 28 U.S.C. § 1915(A) [ECF NO. 3] AND 2)
DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT
TO 28 U.S.C. § 1915(E)(2) AND 28 U.S.C. §
1915A(B)
HON.
GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE
EDWARD
STANLEY MILLS (“Plaintiff”), currently
incarcerated at Calipatria State Prison (“CAL”)
and proceeding pro se, has filed a civil rights complaint
pursuant to 42 U.S.C. § 1983 (ECF No. 1).
Plaintiff
did not pay the filing fees required by 28 U.S.C. §
1914(a) at the time he filed his Complaint; he has, however,
since filed a Motion to Proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF
No. 3).
I.
Plaintiff’s 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). The
action may proceed despite a 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 Andrews v.
Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);
Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir.
1999). However, a prisoner who is granted leave to proceed
IFP remains obligated to pay the entire fee in
“increments” or “installments, ”
Bruce v. Samuels, ___U.S. ___, 136 S.Ct. 627, 629
(2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th
Cir. 2015), and 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).
Section
1915(a)(2) requires prisoners seeking leave to proceed IFP to
submit a “certified copy of the trust fund account
statement (or institutional equivalent) for . . . the 6-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 his
account exceeds $10, and forwards those payments to the Court
until the entire filing fee is paid. See 28 U.S.C.
§ 1915(b)(2); Bruce, 136 S.Ct. at 629.
In
support of his IFP motion, Plaintiff has submitted a copy of
his CDCR Inmate Statement Report from CAL pursuant to 28
U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2.
See ECF No. 2 at 3-8; Andrews, 398 F.3d at
1119. This statement shows that Plaintiff had no monthly
deposits, carried no balance in his trust account during the
6-month period preceding the filing of this action, and had
an available balance of zero at the time of filing.
Therefore, the Court assesses no initial partial filing fee
pursuant to 28 U.S.C. § 1915(b)(1) because it appears
Plaintiff is unable to pay any initial fee. 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.”);
Bruce, 136 S.Ct. at 630; 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.”).
Accordingly,
the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF
No. 3), declines to “exact” any initial filing
fee because his prison certificate shows he “has no
means to pay it, ” Bruce, 136 S.Ct. at 629,
and directs the Secretary of the CDCR, or his designee, to
collect the entire $350 balance of the filing fees required
by 28 U.S.C. § 1914 and to forward them to the Clerk of
the Court pursuant to the installment payment provisions set
forth in 28 U.S.C. § 1915(b)(1). See id.
II.
Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and
§ 1915A
A.
Standard of Review
Notwithstanding
Plaintiff’s IFP status or the payment of any filing
fees, the PLRA also requires 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 statutes, the Court must
sua sponte dismiss any complaint, or any portion of a
complaint, which is frivolous, malicious, fails to state a
claim, or seeks 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.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)). “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 F.3d
1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2)
“parallels the language of Federal Rule of Civil
Procedure 12(b)(6).”).
However,
while the court “ha[s] 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
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