United States District Court, S.D. California
JON W. LARSON, CDCR #AD2009 Plaintiff,
J. ROCHA, et al., Defendants.
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS; AND (2) DISMISSING CLAIMS FOR FAILING TO STATE A
CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2) AND §
William Q. Hayes United States District Court
Larson (“Plaintiff”), a state inmate currently
incarcerated at Salinas Valley State Prison located in
Soledad, California and proceeding pro se, has filed a civil
rights Complaint (“Compl.”) pursuant to 42 U.S.C.
§ 1983. (ECF No. 1.) He alleges violation of his Eighth
and Fourteenth Amendment rights when he was previously housed
at the Richard J. Donovan Correctional Facility
(“RJD”) in San Diego, California. (Compl. at
3-5.) In addition, Plaintiff has filed a Motion to Proceed In
Forma Pauperis (“IFP”) pursuant to 28 U.S.C.
§ 1915(a). (ECF No. 2.)
Plaintiff's Motion to Proceed IFP
parties instituting any civil action, suit or proceeding in a
district court of the United States must satisfy a filing fee
requirement. See 28 U.S.C. §
1914(a). An 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). Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th
Cir. 1999). However, if the plaintiff is a prisoner, even if
he is granted leave to proceed IFP he remains obligated to
pay the full entire fee in “increments, ” see
Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015),
regardless of whether his action is ultimately dismissed.
See 28 U.S.C. § 1915(b)(1), (2).
28 U.S.C. § 1915, as amended by the Prison Litigation
Reform Act (“PLRA”), prisoners seeking leave to
proceed IFP must submit a “certified copy of the trust
fund account statement (or institutional equivalent) for the
. . . six-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 percent 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 collects subsequent payments, assessed at 20 percent
of the preceding month's income, in any month in which
the prisoner's 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).
support of his IFP Motion, Plaintiff has submitted a prison
certificate attesting to his trust account balance and
activity for the six-month period prior to the filing of his
Complaint as required by 28 U.S.C. § 1915(a)(2) and S.D.
Cal. CivLR 3.2. This certificate shows that Plaintiff has no
available funds to his credit at the time of filing.
Therefore, the Court GRANTS Plaintiff's Motion to Proceed
IFP (ECF No. 2), and assesses no initial partial filing fee
per 28 U.S.C. § 1915(b)(1). 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.”); Taylor v.
Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding
that 28 U.S.C. § 1915(b)(4) acts as a
“safety-valve” preventing dismissal of an IFP
prisoner's case based solely on a “failure to pay .
. . due to the lack of funds available to him when payment is
ordered”). However, the entire $350 balance for this
case must be forwarded to the Clerk of the Court pursuant to
the installment payment provisions set forth in 28 U.S.C.
Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B)
Standard of Review
Court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, ”
complaints filed by all persons proceeding IFP, and by those
who are “incarcerated or detained in any facility [and]
accused of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms or conditions of
parole, probation, pretrial release, or diversionary
program.” 28 U.S.C. §§ 1915A(a), (c). The
Court must sua sponte dismiss complaints, or any portions
thereof, which are frivolous, malicious, fail to state a
claim, or which seek damages from defendants who are immune.
See 28 U.S.C. §§ 1915(e)(2)(B) and1915A;
Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.
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. at 679. The
“mere possibility of misconduct” falls short of
meeting the Iqbal plausibility standard.
Id.; see also Moss v. U.S. Secret Service,
572 F.3d 962, 969 (9th Cir. 2009).
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) (“Under
§ 1915A, when 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 has 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 (9th Cir. 2010) (citing Bretz v.
Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en
banc)), it may not, in so doing, “supply essential
elements of the claim that were not initially pled.”
Ivey v. Bd. of Regents of the Univ. of Alaska, 673
F.2d 266, 268 (9th Cir. 1982).
1983 creates a private right of action against individuals
who, acting under color of state law, violate federal
constitutional or statutory rights.” Devereaux v.
Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983
“is not itself a source of substantive rights, but
merely provides a method for vindicating federal rights
elsewhere conferred.” Graham v. Connor, 490
U.S. 386, 393-94 (1989) (internal quotation marks and
citations omitted). “To establish § 1983
liability, a plaintiff must show both (1) deprivation of a
right secured by the Constitution and laws of the United
States, and (2) that the deprivation was committed by a
person acting under color of state law.” Tsao v.
Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir.
alleges that on April 2, 2016, Defendants Rocha and Vizcarra
“used excessive force, slamming Plaintiff, while
handcuffed to the ground.” (Compl. at 3.) He further
alleges that on that same day, Defendants Cortez, Lopez and
Clarion also used “excessive force by slamming
Plaintiff on the ground while Plaintiff was in
that day, Plaintiff was examined by Defendant Newman, a licensed
vocational nurse. (Id. at 4.) Plaintiff alleges that
Defendant Newman “falsified” or lessened the
severity of his injuries and “heighten[ed]” the
injuries of Defendants Vizcarra and Rocha in the
“Medical Report of Injury or Unusual Occurrence.”
(Id.) In “subsequent medical