United States District Court, S.D. California
CHARLES E. GRIFFIN, II, CDCR #H-77636, Plaintiff,
RAQUEL E. ZURBANO; DORRIE P. STEADMAN; MICHAEL J. ROGGELIN; K. SPENCE; and MICHAEL SANTOS, Defendants.
ORDER (1) GRANTING MOTION TO PROCEED
IN FORMA PAUPERIS (ECF NO. 2); AND (2) GRANTING MOTION FOR
AND 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 NO. 4)
Janis L. Sammartino, Judge
E. Griffin, II (“Plaintiff”), proceeding pro se,
is currently incarcerated at the California Medical Facility
in Vacaville, California, and has filed a civil rights
Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.)
alleges several medical and correctional officials at Richard
J. Donovan Correctional Facility in San Diego, California,
violated his First, Eighth, and Fourteenth Amendment rights
while he was incarcerated there in March through May 2015.
(See generally Compl.)
did not prepay the civil filing fee required by 28 U.S.C.
§ 1914(a) at the time of filing, but instead has filed a
Motion to Proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a),
(ECF No. 2), as well as a Motion requesting the issuance of
summons an U.S. Marshal Service pursuant to 28 U.S.C. §
1915(d) and Fed.R.Civ.P. 4(c)(3), (ECF No. 4).
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.
support of his IFP Motion, Plaintiff has submitted copies of
his California Department of Corrections and Rehabilitation
(“CDCR”) Inmate Statement Report and a prison
certificate authorized by a California Health Care Facility
(“CHCF”) official attesting to his trust account
activity at the time of filing. (See ECF No. 2 at
4-7); 28 U.S.C. § 1915(a)(2); S.D. Cal. Civ. L.R. 3.2;
Andrews, 398 F.3d at 1119. These statements show
that Plaintiff's current available balance is zero, and
that over the six month period preceding the filing of his
Complaint he had no monthly deposits to his account and has
carried no balance. (ECF No. 2 at 4, 6); 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 (concluding 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,
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 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.
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(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 n.1 (9th Cir. 2014) (internal
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