United States District Court, S.D. California
ORDER: 1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS [ECF NO. 2] 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)
Gonzalo P. Curiel United States District Judge
HANCE ("Plaintiff), currently incarcerated at Richard J.
Donovan Correctional Facility ("RJD") in San Diego,
California, and proceeding pro se, has filed a civil rights
Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1).
did not prepay the civil filing fee required by 28 U.S.C.
§ 1914(a) when he filed his Complaint; instead, he later
filed a Motion to Proceed In Forma Pauperis ("IFP")
pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).
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, 775 F.3d 1182, 1185 (9th
Cir. 2015), and regardless of whether his action is
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 copy of
his CDCR Inmate Statement Report, as well as a Prison
Certificate signed by a senior RJD accounting officer
attesting as to his account activity for the 6-month period
preceding the filing of his Complaint. See ECF No. 2
at 2-4; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2;
Andrews, 398 F.3d at 1119. These documents show that
while Plaintiff had average monthly deposits of approximately
$9.02 to his account, he carried no monthly balance and had
an available balance of zero at the time of filing. (ECF No.
2 at 3-4.) Thus, the Court assesses Plaintiffs initial
partial filing fee to be $1.80 pursuant to 28 U.S.C. §
1915(b)(1), but acknowledges he may be unable to pay even
that small initial fee at this time. See 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 (ECF No.
2), declines to exact the initial $1.80 initial filing fee
because his prison certificate indicates he may have "no
means to pay it, " Bruce, 136 S.Ct. at 629, and
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) and 1915A(b)
Standard of Review
Plaintiff is a prisoner 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 nl (9th Cir. 2014) (internal citation
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."
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).