United States District Court, S.D. California
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.]
GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE.
January 12, 2017, Petitioner Rwayne Johnson
(“Petitioner”), a state prisoner proceeding
pro se,  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
Motion for Leave to Proceed In Forma
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.
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
Sua Sponte Screening
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)).
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
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
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).
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 ...