United States District Court, S.D. California
ANDREW A. CEJAS, CDCR#F-34368, Plaintiff,
DANIEL PARAMO, Warden, et al. Defendants.
ORDER1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
PURSUANT TO 28 U.S.C. § 1915(A) [DOC. NO. 4] AND 2)
DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF SUMMONS AND
COMPLAINT PURSUANT TO 28 U.S.C.§ 1915(D) AND FED. R.
CIV. P. 4(C)(3)
WILLIAM Q. HAYES, United States Distinct Judge.
A. CEJAS ("Plaintiff'), currently incarcerated at
Richard J. Donovan Correction Facility ("RJD") in
San Diego, California, and proceeding pro se, filed this
civil action pursuant to 42 U.S.C. § 1983, and the
Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C. § 2000cc, et seq., on August 3, 2014
(Doc. No. 1).
he did not prepay the civil filing fee required by 28 U.S.C.
§ 1914(a) or file a Motion to Proceed In Forma Pauperis
("IFP") pursuant to 28 U.S.C. § 1915(a) at the
time of filing, the Court dismissed Plaintiffs case on
October 3, 2014 (Doc. No, 2). Plaintiff was granted 45 days
leave, however, in which to re-open his case by either paying
the filing fee or filing an IFP motion (Id. at 2.)
He did neither; therefore, the case remained closed.
than a year later, on June 22, 2016, Plaintiff submitted his
Motion to Proceed IFP (Doc. No. 4), which the Court directed
the Clerk to file in light of Plaintiff s pro se status and
despite its untimeliness (Doc. No. 3). A week later,
Plaintiff filed a supplemental document requesting that the
Court grant his tardy IFP Motion, because he never received
the Court's October 3, 2014 Order (Doc. No.
Motion to Proceed IFP
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. See 28 U.S.C. § 1914(a). The
action may proceed despite a plaintiffs 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,
115 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).
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(bX4). 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.
support of his IFP Motion, Plaintiff has submitted a copy of
his Inmate Statement Report and a prison certificate
authorized by a RJD senior accounting official attesting to
his trust account activity. See Doc. No. 4 at 5-7;
28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2;
Andrews, 398 F.3d at 1119. These statements show
Plaintiff has had no monthly deposits to his account, has
carried no balance over the six month period preceding the
filing of his Complaint, and that his current available
balance is zero. See Doc. No. 4 at 5-7; 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.").
the Court grants Plaintiffs Motion to Proceed IFP, declines
to "exact" any initial filing fee because his trust
account statement shows he "has no means to pay it,
" Bruce, 136 S.Ct. at 629, and directs the
Secretary of the California Department of Corrections and
Rehabilitation ("CDCR") to collect the entire $350
balance of the filing fees required by 28 U.S.C. § 1914
and 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.
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
Standard of Review
Plaintiff is a prisoner and is proceeding IFP, his complaint
requires a pre-answer screening pursuant to 28 U.S.C. §
1915(e)(2) and § 1915A(b). Under these statutes, the
Court must sua sponte dismiss a prisoner's IFP complaint,
or any portion of it, which is frivolous, malicious, fails to
state a claim, or seeks damages from defendants who are
immune. See Lopez v. Smith, 203 F.3d 1122,
1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C.
§ 1915(e)(2)); Rhodes v. Robinson, 621
F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. §
1915A(b)). "The purpose of [screening] is 'to ensure
that the targets of frivolous or malicious suits need not
bear the expense of responding."' Nordstrom v.
Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting
Wheeler v. Wexford Health Sources, Inc.,
689 F.3d 680, 681 (7th Cir. 2012)).
standard for determining whether a plaintiff has failed to
state a claim upon which relief can be granted under §
1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
Procedure 12(b)(6) standard for failure to state a
claim." Watison v. Carter,668 F.3d 1108, 1112
(9th Cir. 2012); see also Wilhelm v.Rotman,680 F.3d 1113, 1121 (9th Cir. 2012) (noting
that screening pursuant to § 1915A "incorporates
the familiar standard applied in the context of failure to
state a claim under Federal Rule of Civil Procedure
12(b)(6)"). Rule 12(b)(6) requires a complaint
"contain sufficient factual matter, accepted as true, to
state a claim to relief ...