United States District Court, S.D. California
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS PURSUANT TO 28 U.S.C. § 1915(A) [DOC. NO. 2]
AND (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)(II)
LARRY ALAN BURNS United States District Judge
Roettgen (“Plaintiff”), a prisoner incarcerated
at Richard J. Donovan Correctional Facility
(“RJD”) in San Diego, California, and proceeding
pro se, has filed a civil complaint pursuant to 42 U.S.C.
§ 1983. See Doc. No. 1 at 1.
did not prepay the civil filing fees required by 28 U.S.C.
§ 1914(a) at the time of filing; instead he has filed a
Motion to Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2).
Plaintiff’s IFP Motion
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 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
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.
support of his IFP motion, Plaintiff has submitted a
certified copy of his prison trust account statements, as
well as a prison certificate, pursuant to 28 U.S.C. §
1915(a)(2) and S.D. Cal. CivLR 3.2. Andrews, 398
F.3d at 1119. These statements shows that Plaintiff 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). However, the Court directs the
Secretary of the California Department of Corrections and
Rehabilitation (“CDCR”), or his designee, to
instead 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).
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 to “contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted); Wilhelm, 680 F.3d at 1121.
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.”
Iqbal, 556 U.S. at 678. “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”
or “unadorned, the defendant-unlawfully-harmed me
accusation[s]” fall short of meeting this plausibility
standard. Id.; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009).
has filed a forty three (43) page Complaint in which he names
seventeen (17) defendants and attaches ninety four (94) pages
of Exhibits. (Doc. No. 1.) Plaintiff alleges that his claims
arise during his incarceration at RJD from July 3, 2014 to
March 9, 2015. (Id. at 1.)
42 U.S.C. § 1983
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged violation was committed by a person
acting under the color of state law. West v. Atkins,