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)
Cynthia Bashant United States District Judge
Darren Vincent Ford, proceeding pro se, is currently
incarcerated at California State Prison - Sacramento
(“CSP-SAC”) in Represa, California, and has filed
a civil rights Complaint pursuant to 42 U.S.C. § 1983.
(ECF No. 1.)
alleges Correctional Officer G. Sinklier violated his Eighth
and Fourteenth Amendment rights while he was incarcerated at
Richard J. Donovan Correctional Facility (“RJD”)
in December 2015, and January 2016, by searching his cell,
destroying his property, threatening him with rape, and
exposing his criminal history as a sex offender in the
presence of his fellow inmates in retaliation for Plaintiff
having filed inmate grievances against Officer Sinklier. (ECF
No. 1 at 3-4.) Plaintiff further claims to have repeatedly
reported Officer Sinklier's threats and actions to
Sergeant Emmoto, but Sergeant Emmoto allegedly acted with
“deliberate indifference” to Plaintiff's
plight and did “nothing about it.” (Id.
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.)
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 certified
copies of his California Department of Corrections and
Rehabilitation (“CDCR”) Inmate Statement Report
showing his trust account activity at the time of filing.
See ECF No. 2 at 4-7; 28 U.S.C. § 1915(a)(2);
Civ. L.R. 3.2; Andrews, 398 F.3d at 1119. These
statements show Plaintiff owes more than $10, 000 in
restitution and fines, but has had no monthly deposits to his
account, has carried no balance over the six month period
preceding the filing of his Complaint, and had an available
balance of zero at CSP-SAC as of January 12, 2017 (ECF No. 2
at 6). That said, Plaintiff may proceed IFP notwithstanding
his inability to pay the initial portion of the filing fee.
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,
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. § 1915(b)(1).
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
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
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).
Court finds the allegations in Plaintiff's Complaint are
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
v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012).
“California's . . . prisoners may be murderers,
rapists, drug dealers, and child molesters, but California is
responsible for protecting even those sorts of people from
murder by other prisoners. Indeed, the Eighth Amendment
requires that prison officials ‘must take reasonable
measures to guarantee the safety of the inmates.'”
United States v. Williams, 842 F.3d 1143, 1153 (9th
Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825,
833 (1994) (“[P]rison officials have a duty [under the
Eighth Amendment] ... to protect prisoners from violence at
the hands of other prisoners.”)); Valandingham v.
Bojorquez, 866 F.2d 1135, 1139 (9th Cir. 1989) (holding
labeling prisoner a “snitch” in the presence of
other inmates is sufficient to state a claim of deliberate
indifference to an inmate's safety); Crane v.
Gonzales, No. CV-F-03-6339 OWW WMW P, 2008 WL 2168927,
at *2 (E.D. Cal. May 23, 2008) (concluding calling a prisoner
a “child molester” in the presence of fellow
inmates stated an Eighth Amendment claim), report and
recommendation adopted at 2008 WL 2676780 (E.D. Cal.
June 30, 2008). Further, an allegation of retaliation against
a prisoner's First Amendment right to file a prison
grievance is sufficient to support a claim under § 1983.
See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th
Cir. 2005) (enumerating elements for First Amendment
retaliation claim); Bruce v. Ylst, 351 F.3d 1283,
1288 (9th Cir. 2003). Thus, the Court concludes
Plaintiff's claim that Officer Sinklier violated his
constitutional rights by destroying his property and exposing