Cejas v. Paramo

          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)

          HON. WILLIAM Q. HAYES, United States Distinct Judge.

         ANDREW 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).

         I. Procedural History

         Because 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.

         More 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. 6).^[1]

         II. 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.^[2] 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).

         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(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.

         In 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.").

         Therefore, 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.

         III. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

         A. Standard of Review

         Because 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)).

         "The 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 ...