United States District Court, S.D. California
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS, 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) (ECF NOS. 1, 2)
Janis L. Sammartino, United States District Judge.
David Scott Harrison is proceeding pro se and is currently
incarcerated at San Quentin State Prison. He has filed an
action pursuant to the Freedom of Information Act (Compl.,
ECF No. 1), and a Motion to Proceed In Forma
Pauperis (IFP) pursuant to 28 U.S.C. § 1915(a) (IFP
Mot., ECF No. 2).
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). An
action may proceed despite the 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, if the plaintiff is a prisoner and he is
granted leave to proceed IFP, he nevertheless remains
obligated to pay the entire fee in “increments, ”
Bruce v. Samuels, 136 S.Ct. 627, 629 (2016);
Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir.
2015), 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
28 U.S.C. § 1915, as amended by the Prison Litigation
Reform Act (PLRA), a prisoner seeking leave to proceed IFP
must also submit a “certified copy of the trust fund
account statement (or institutional equivalent) for . . . the
six-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); Taylor,
281 F.3d at 850. 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
the prisoner’s account exceeds $10, and forwards them
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 trust account statement pursuant to 28
U.S.C. § 1915(a)(2) and Civil Local Rule 3.2.
Andrews, 398 F.3d at 1119. This statement shows
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. (ECF No. 2 at 5; see also 28 U.S.C.
§ 1915(b)(4) (“In 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.”); 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 Plaintiff’s IFP Motion (ECF No. 2),
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) AND
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 provisions of the
PLRA, the Court must sua sponte dismiss complaints,
or any portions thereof, which are frivolous, malicious, fail
to state a claim, or which seek damages from defendants who
are immune. See 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A(b); Rhodes v. Robinson, 621 F.3d 1002,
1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b));
Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.
2000) (discussing § 1915(e)(2)) (en banc). “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
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
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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. 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 Serv., 572 F.3d 962, 969 (9th
Court finds Plaintiff’s complaint sufficient to survive
the “low threshold” for proceeding past the sua
sponte screening required by 28 U.S.C. §§
1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at
1123; Iqbal, 556 U.S. at 678.