United States District Court, S.D. California
ARMANDO TINAJERO, CDCR No. AX-3761 Plaintiff,
RAYMOND MADDEN; L. MARIN, Defendants.
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS; and (2) DISMISSING COMPLAINT FOR FAILING TO STATE A
Cynthia Bashant United States District Judge
Armando Tinajero (“Plaintiff”), currently
incarcerated at Centinela State Prison located in Imperial,
California, and proceeding pro se, has filed a civil rights
complaint (“Compl.”) pursuant to 42 U.S.C. §
1983. (ECF No. 1.) Plaintiff did not prepay the civil filing
fee required by 28 U.S.C. § 1914(a) when he filed his
Complaint; instead, he has filed a Motion to Proceed In
Forma Pauperis (“IFP”) pursuant to 28 U.S.C.
§ 1915(a). (ECF No. 4.)
Plaintiff’s 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.
See 28 U.S.C. § 1914(a). An 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 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 remains
obligated to pay the full entire fee in “increments,
” see 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 Cir. 2002).
28 U.S.C. § 1915, as amended by the Prison Litigation
Reform Act (“PLRA”), prisoners seeking leave to
proceed IFP must 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); 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
the prisoner’s 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).
Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No.
4) and assesses no initial partial filing fee per 28 U.S.C.
§ 1915(b)(1). However, the entire $350 balance of the
filing fee owed must be collected and forwarded to the Clerk
of the Court pursuant to the installment payment provisions
set forth in 28 U.S.C. § 1915(b)(1).
Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B)
Standard of Review
PLRA obligates 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. §
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).
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
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 not initially pled.” Ivey v. Bd. of
Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th
Cir. 1982). “Vague and conclusory allegations of
official participation in civil rights violations” are
not “sufficient to withstand a motion to
U.S.C. § 1983
1983 creates a private right of action against individuals
who, acting under color of state law, violate federal
constitutional or statutory rights.” Devereaux v.
Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983
“is not itself a source of substantive rights, but
merely provides a method for vindicating federal rights
elsewhere conferred.” Graham v. Connor, 490
U.S. 386, 393-94 (1989) (internal quotation marks and
citations omitted). “To establish § 1983
liability, a plaintiff must show both (1) deprivation of a
right secured by the Constitution and laws of the United