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Johnson v. Department of Veterans Affairs

United States District Court, S.D. California

April 19, 2017

Rwayne Johnson, Petitioner,
v.
Department of Veterans Affairs, Respondent.

         ORDER: 1) DENYING PETITIONER'S REQUEST TO PROCEED IN FORMA PAUPERIS; 2) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2)(B)(II); 3) DENYING AS MOOT PETITIONER'S REQUEST FOR COURT-APPOINTED COUNSEL AND (4) GRANTING PETITIONER LEAVE TO AMEND WITHIN 45 DAYS [ECF NOS. 2, 3.]

          HON. GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE.

         On January 12, 2017, Petitioner Rwayne Johnson (“Petitioner”), a state prisoner proceeding pro se, [1] initiated this action against the Department of Veterans Affairs (“Respondent”). (Dkt. No. 1.) Petitioner concurrently filed a motion to proceed in forma pauperis (“IFP”) and a motion for court-appointed counsel. (Dkt. Nos. 2, 3.) For the reasons set forth below, the Court DENIES Petitioner's motion to proceed in forma pauperis, DISMISSES Petitioner's Petition for Writ of Mandamus for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and DISMISSES AS MOOT Petitioner's request for court-appointed counsel.

         DISCUSSION

         I. Motion for Leave to Proceed In Forma Pauperis

         All 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.[2] 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).

         Section 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.

         Here, Petitioner has not provided the Court with sufficient information to determine Petitioner's financial status. Petitioner has not submitted a certified copy of his prison trust fund account statement. Accordingly, the Court DENIES Petitioner's request to proceed in forma pauperis.

         II. Sua Sponte Screening

         Notwithstanding Petitioner's IFP status or the payment of any filing fees, the Court must review complaints filed by all persons proceeding IFP and 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); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)).

         All 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).

         “When 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 Procedure 12(b)(6).”).

         However, 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 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         Petitioner seeks a writ of mandamus under 28 U.S.C. § 1361 to compel the Department of Veterans Affairs to pay him 30% of his service-connected benefits since 1981. (Dkt. No. 1 at 1-3.) Issuance of a writ of mandamus is considered an “extraordinary remedy, to be reserved for extraordinary situations.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). Because the writ of mandamus is “one of the most potent weapons in the judicial arsenal, ” Petitioner has the burden to satisfy three conditions before a writ may be issued on his behalf: (1) Petitioner has no other adequate means to attain the desired relief; (2) Petitioner's right to ...


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