United States District Court, S.D. California
STEVIE J. STEVENSON, CDCR #K-16324, Plaintiff,
JEFFREY BEARD, et al., Defendants.
ORDER: (1) GRANTING MOTIONS TO PROCEED IN FORMA
PAUPERIS AND TO FILE EXCESS PAGES (ECF NOS. 2, 3); (2)
DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO
28 U.S.C. § 1915(E)(2) AND § 1915A(B); AND (3)
DENYING MOTION FOR PRELIMINARY INJUNCTION AND/OR PROTECTIVE
ORDER (ECF NO. 5)
JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE
J. STEVENSON (“Plaintiff”), currently
incarcerated at Centinela State Prison (“CEN”) in
Imperial, California, and proceeding pro se, has filed a
civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF
No. 1), together with a Motion for Leave to File Excess Pages
(ECF No. 3), and followed by a Motion for a Preliminary
Injunction (ECF No. 5).
has not paid the civil filing fee required by 28 U.S.C.
§ 1914(a); instead he seeks leave to proceed in
forma pauperis (“IFP”) pursuant to 28 U.S.C.
§ 1915(a) (ECF No. 2).
Motion to Proceed In Forma Pauperis
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 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 a copy of
his CDCR Inmate Statement Report as well as a prison
certificate certified by a trust account official at CEN.
See ECF No. 2 at 4-8; 28 U.S.C. § 1915(a)(2);
S.D. Cal. Civ. L.R. 3.2; Andrews, 398 F.3d at 1119.
These statements show that while Plaintiff carried an average
monthly balance and had average monthly deposits of $20.09 in
his account over the 6-month period immediately preceding the
filing of his Complaint, he had an available balance of zero
at the time of filing. See ECF No. 2 at 4, 7. Thus,
the Court assesses Plaintiff's initial partial filing fee
to be $4.01 pursuant to 28 U.S.C. § 1915(b)(1), but
acknowledges he may be unable to pay even that minimal
initial fee at this time. 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 (ECF
No. 2), declines to exact any initial filing fee because his
prison certificate indicates he may have “no means to
pay it, ” Bruce, 136 S.Ct. at 629, and directs
the Secretary of the California Department of Corrections and
Rehabilitation (“CDCR”), or his designee, to
instead 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). See
Motion for Leave to File Excess Pages
Local Rule 8.2a provides that complaints filed by prisoners
pursuant to 42 U.S.C. § 1983 must be “legibly
written or typewritten on forms supplied by the court,
” and any additional pages not exceed a total of
fifteen. See S.D. Cal. Civ. L.R. 8.2.a. Plaintiff
used the Court's form Complaint, but he interspersed
additional pages and attached more- therefore, his pleading
comprises thirty-six pages (ECF No. 1). Plaintiff requests
leave to file these excess pages in an effort to
“ensure that all claims were presented correctly,
” and to provide an “explanation about the
exhaustion of [his] administrative remedies.” (ECF No.
3 at 1.)
may sua sponte strike a document filed in violation
of the Court's local procedural rules. See Ready
Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th
Cir. 2010) (noting district court's “power to
strike items from the docket as a sanction for litigation
conduct”); Smith v. Frank, 923 F.3d 139, 142
(9th Cir. 1991) (“For violations of the local rules,
sanctions may be imposed including, in appropriate cases,
striking the offending pleading.”). However,
“district courts have broad discretion in interpreting
and applying their local rules, ” Simmons v. Navajo
Cty., 609 F.3d 1011, 1017 (9th Cir. 2010) (internal
quotation and citation omitted), and the Court construes the
pleadings of pro se litigants in civil rights cases
liberally, affording them the benefit of doubt. See
Karim-Panahi v. L.A. Police Dept., 839 F.2d 621, 623
(9th Cir. 1988); Bretz v. Kelman, 773 F.2d 1026,
1027, n.1 (9th Cir. 1985) (en banc).
while Plaintiff's Complaint exceeds the page limitations
set by Local Rule 8.2.a, it is not so verbose, “replete
with redundancy [or] largely irrelevant” that it
violates Fed.R.Civ.P. 8(a). See Hearns v. San Bernardino
Police Dept., 530 F.3d 1124, 1132 (9th Cir. 2008)
(citation omitted); Cafasso, U.S. ex rel. v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir.
2011) (noting that while “the proper length and level
of clarity for a pleading cannot be defined with any great
precision, ” Rule 8(a) has “been held to be
violated by a pleading that was needlessly long, or a
complaint that was highly repetitious, or confused, or
consisted of incomprehensible rambling” (quoting 5
Charles A. Wright & Arthur R. Miller, Federal
Practice & Procedure § 1217 (3d ed. 2010))).
the Court GRANTS Plaintiff's Motion for Leave to File
Excess Pages (ECF No. 3).
Sua Sponte Screening pursuant to 28 U.S.C. §
1915(e)(2) and § 1915A
Standard of Review
Plaintiff is a prisoner and is 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) (citations omitted).
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).
divides his Complaint into eight separate causes of action or
“Counts, ” but Counts 1-4 and 8 significantly
overlap. Specifically, in Counts 1-4, Plaintiff claims that
on January 1, 2014, the former Secretary of the California
Department of Corrections and Rehabilitation
(“CDCR”), Jeffrey Beard, “in concert
with” Scott Kernan, CDCR's current Secretary, and
Shannon Swain, CDCR's Acting Superintendent of Education,
violated his First and Fourteenth Amendment rights by
“arbitrarily” amending certain sections of Title
15 of the California Code of Regulations governing inmate law
libraries, access to those libraries, and their contents,
see ECF No. 1 at 5-6 (“Count 1”);
replacing Witkin & Epstein treatises and California
Jurisprudence with a “paging system, ” and
depriving inmates of the “Gilmore
collection” published by West, id. at 7-8
(“Count 2”); failing to update the “only
three” library computers available to him to
“conduct legal research, ” and limiting his use
of those computers to thirty-minute increments, id.
at 9-10 (“Count 3”), and “changing the
LLEDS [Law Library Electronic Delivery System] from Westlaw
to Lexis.” Id. at 11-13 (“Count
4”). In Count 8, Plaintiff alleges CEN Senior Librarian
J. Rohrer refused to provide him with copies of three cases
“out of the California Reporter 2d and 3rd
series” in November and December 2016. Id. at
20 (“Count 8”). Plaintiff claims this denied him
the opportunity to “learn about a specific topic of the
law as afforded by Westlaw.” Id.
further claims that in August 2016, Secretary Kernan,
CEN's Warden R. Madden, and Litigation Coordinator N.
Telles denied him permission to possess “three legal
confidential audio CDs, ” which he claims “dealt
with his criminal case, ” and which were related to a
“Penal Code section 1054.9 motion for post-conviction
discovery, ” which had been filed by “his
appointed attorney James Bisnow” on August 9, 2012.
Id. at 16-17 (“Count 6”).
addition, Plaintiff contends two pieces of legal confidential
mail-one on or about May 27, 2016, and addressed from the
California Innocence Project, and another on or about June
27, 2016, addressed to a Los Angeles County District
Attorney-were delivered and/or returned to him ...