United States District Court, S.D. California
ORDER: 1) GRANTING RENEWED MOTION TO PROCEED IN FORMA
PAUPERIS [DOC. NO. 4] AND 2) DIRECTING U.S. MARSHAL TO EFFECT
SERVICE OF COMPLAINT AND SUMMONS PURSUANT TO 28 U.S.C. §
1915(D) AND FED. R. CIV. P. 4(C)(3)
MICHAEL M. ANELLO United States District Judge
LEROY WILSON, Jr., (“Plaintiff”), currently
incarcerated at the California Institution for Men
(“CIM”) in Chino, California,  and proceeding
pro se, has filed a civil rights Complaint pursuant
to 42 U.S.C. § 1983 (Doc. No. 1).
did not prepay the civil filing fee required by 28 U.S.C.
§ 1914(a) when he filed his Complaint; instead, he filed
a Motion to Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2).
December 19, 2016, the Court denied Plaintiff's IFP
because he failed to attach a certified copy of his trust
account statements as required by 28 U.S.C. §
1915(a)(2), but granted him an opportunity to correct that
deficiency (Doc. No. 3). Plaintiff has since filed a renewed
Motion to Proceed IFP (Doc. No. 4).
Renewed IFP Motion
Plaintiff now knows, 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. 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, __ S.Ct. __, 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 renewed IFP Motion, Plaintiff submitted a copy
of his San Diego Sheriff's Department Trust Account
Activity (ECF No. 4 at 6), together with a prison certificate
completed by an accounting official at the Vista Detention
Facility attesting to his trust account activity and balances
for the six-months preceding the filing of his Complaint.
See Doc. No. 4 at 4; 28 U.S.C. § 1915(a)(2);
S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119.
These statements show that Plaintiff had an average monthly
balance of $19.34, and average monthly deposits of $59.17 to
his account over the 6-month period immediately preceding the
filing of his Complaint, as well as an available balance of
$116.01 at the time of filing. See Doc. No. 4 at 4.
Based on this financial information, the Court GRANTS
Plaintiff's Renewed Motion to Proceed IFP (Doc. No. 4),
and assesses his initial partial filing fee to be $11.83
pursuant to 28 U.S.C. § 1915(b)(1).
the Court will direct the Secretary of the California
Department of Corrections and Rehabilitation
(“CDCR”), or his designee, to collect this
initial fee only if sufficient funds are available in
Plaintiff's account at the time this Order is executed.
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
remaining balance of the $350 total fee owed in this case
must be collected and forwarded to the Clerk of the Court
pursuant to 28 U.S.C. § 1915(b)(1).
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
Standard of Review Because Plaintiff is a prisoner
and is proceeding IFP, his Complaint also 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) (quoting Wheeler v. Wexford
Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.
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.”
“mere possibility of misconduct” or
“unadorned, the defendant-unlawfully-harmed me
accusation[s]” fall short of meeting this plausibility
standard. Id.; see also Moss ...