United States District Court, S.D. California
DEAN A. SCHWARTZMILLER, et al., Booking # 15746082, Plaintiff,
K. RODRIGUEZ, et al. Defendants.
ORDER: 1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS [ECF No. 2] AND 2) DISMISSING COMPLAINT FOR FAILING
TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND
John A. Houston United States District Judge
Dean Schwartzmiller, an inmate currently incarcerated at the
Richard J. Donovan Correctional Facility (“RJD”)
located in San Diego, California has filed a civil rights
Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1) and a
Motion to Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). Because
Plaintiff's Motion to Proceed IFP complies with 28 U.S.C.
§ 1915(a)(2), the Court grants him leave to proceed
without full prepayment of the civil filing fees, but
dismisses his Complaint for failing to state a claim pursuant
to 28 U.S.C. § 1915(e)(2) and § 1915A(b).
Plaintiff's IFP Motion
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
(U.S. 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.
support of his IFP Motion, Plaintiff has submitted a
certified copy of his inmate trust account statement pursuant
to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. His
trust account statement indicates he has insufficient funds
from which to pay a partial initial filing 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 leave to proceed IFP and directs
the Secretary for the California Department of Corrections
and Rehabilitation (“CDCR”) to 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 id.
Legal Standards for Screening Complaint Pursuant to 28
1915(e)(2)(B) and 1915A(b)
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) (quoting
Wheeler v. Wexford Health Sources, Inc., 689 F.3d
680, 681 (7th Cir. 2012)).
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 to “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.
has filed a forty eight (48) page Complaint in which he names
thirty-seven (37) defendants and attaches nearly twenty (20)
pages of exhibits. (ECF No. 1.) Plaintiff alleges
constitutional violations by RJD prison officials, as well as
several news agencies, dating back to 2006.
42 U.S.C. § 1983
42 U.S.C. § 1983 provides a cause of action for the
“deprivation of any rights, privileges, or immunities
secured by the Constitution and laws” of the United
States. Wyatt v. Cole, 504 U.S. 158, 161 (1992). To
state a claim under § 1983, a plaintiff must allege two
essential elements: (1) that a right secured by the
Constitution or laws of the United States was violated, and
(2) that the alleged violation was committed by a person
acting under color of state law. West v. Atkins, 487
U.S. 42, 48 (1988); Long v. Cty. of Los Angeles, 442
F.3d 1178, 1185 (9th Cir. 2006).
Representation of other parties
purports to bring this action on behalf of Plaintiff Harmon
whom he describes as his “heir apparent.”
See Compl. at 6. However, because Plaintiff is
proceeding pro se, he has no authority to represent the legal
interest of any other party. See Cato v. United
States, 70 F.3d 1103, 1105 n.1 (9th Cir. 1995); C.E.
Pope Equity Trust v. United States, 818 F.2d 696, 697
(9th Cir. 1987); see also Fed.R.Civ.P. 11(a) (“Every
pleading, written motion, and other paper shall be signed by
at least one attorney of record in the attorney's
original name, or if the party is not represented by an
attorney, shall be signed by the party.”). Therefore,
Plaintiff Harmon is DISMISSED from this action.