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.
Hagan (“Plaintiff”), a prisoner incarcerated at
Richard J. Donovan Correctional Facility (“RJD”)
in San Diego, California, and proceeding pro se, has filed a
civil rights complaint (“Compl.”) 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
certified copy of his inmate trust account statement which
the Court has liberally construed as 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 Cir. 2002).
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.
has submitted a certified copy of his prison trust account
statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D.
Cal. CivLR 3.2. See Doc. No. 2 at 4-7;
Andrews, 398 F.3d at 1119. This statement shows that
Plaintiff had an available amount of $0.01 at the time of
filing. Therefore, the Court assesses no initial partial
filing fee pursuant to 28 U.S.C. § 1915(b)(1).
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 Plaintiff's Motion to Proceed IFP and
directs the Secretary of the California Department of
Corrections and Rehabilitation (“CDCR”), or his
designee, 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
Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B)
Standard of Review
prisoner's complaint “seeks redress from a
governmental entity or officer or employee of a governmental
entity, ” the Court “shall review” the
pleading “as soon as practicable after docketing,
” and “dismiss the complaint, or any portion of
the complaint, if [it] . . . is frivolous, malicious, or
fails to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915A(a), (b)(1);
Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir.
2014). As noted below, Plaintiff alleges violations of his
constitutional right to be free from “cruel and unusual
punishment, ” see Compl. at 3, but he seeks
redress from private citizens, attorneys and his former
employer, none of whom are alleged to be governmental actors.
Id. at 2. Therefore, § 1915A(a)'s screening
provisions do not apply. See Chavez v. Robinson, 817
F.3d 1162, 1168 (9th Cir. 2016) (“Section 1915A
mandates early review … for all complaints ‘in
which a prisoner seeks relief from a governmental
entity…”) (quoting § 1915A(a)); see
also Thompson v. Hicks, 213 Fed.Appx. 939, 2007 WL
106785 at *3 (11th Cir. 2007) (noting that because a private
defendant was not a “governmental entity” as
described in § 1915A, prisoner's complaint as to
that defendant was not subject to dismissal under §
Plaintiff is proceeding IFP, however, his Complaint
is still subject to a sua sponte review, and
mandatory dismissal, if it is “frivolous, malicious,
fail[s] to state a claim upon which relief may be granted, or
seek[s] monetary relief from a defendant immune from such
relief, ” regardless of whether he seeks redress from a
“governmental entity.” See 28 U.S.C.
§ 1915(e)(2)(B); Coleman v. Tollefson, 135
S.Ct. 1759, 1763 (2015) (pursuant to 28 U.S.C. §
1915(e)(2) “the court shall dismiss the case at any
time if the court determines that-(A) the allegation of
poverty is untrue; or (B) the action or appeal-(i) is
frivolous or malicious; [or] (ii) fails to state a claim on
which relief may be granted.”); Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc)
(“[S]ection 1915(e) not only permits, but requires a
district court to dismiss an in forma pauperis complaint that
fails to state a claim.”).
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).
survive a motion to dismiss, the complaint 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.”