United States District Court, S.D. California
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS; AND (2) DISMISSING COMPLAINT FOR FAILING TO STATE A
CLAIM WITHOUT LEAVE TO AMEND
CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE.
Ray McKinley Jr. (“Plaintiff”), a California
state prisoner incarcerated at Centinela State Prison in
Imperial, California, and proceeding pro se, has filed a
civil rights complaint (“Compl.”) pursuant to 42
U.S.C. § 1983. (ECF No. 1.) Plaintiff states that upon
his incarceration in 1997, money began being taken from his
prisoner trust account to satisfy a $10, 000 restitution
order which he alleges was not facially valid, and which he
succeeded in having reduced in 2014 to $200, and although he
was refunded $714.95, which the prison authorities contend is
the entire amount taken from his inmate trust account to
satisfy the restitution order, he is unable to obtain a true
accounting because a print-out of his inmate trust account
statement prior to 2008 is not available due to the
installation of a new accounting system in 2008. (Compl. at
6-23.) He claims that the collection of funds to satisfy a
facially invalid restitution order, and the failure to
provide him with a true accounting, has violated his
Fourteenth Amendment right to due process of law, and his
Eighth Amendment right to be free from excessive fines and
cruel and unusual punishments. (Id.) Plaintiff did
not prepay the civil filing fee required by 28 U.S.C. §
1914(a), but 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 pay a filing fee.
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 then 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 had
no monthly deposits, has carried no average balance, and had
no available funds to his credit at the time of filing. [ECF
No. 2 at 4.] Therefore, the Court GRANTS
Plaintiff's Motion to Proceed IFP 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 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.”) However,
the entire $350 balance of the filing fee due 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,
like Plaintiff, 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.” See 28 U.S.C.
§§ 1915(e)(2) and 1915A(b). 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) and 1915A; Lopez v.
Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc).
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
§ 1983, 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. Board of Regents of the University 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). “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 when he was received into the California
Department of Corrections and Rehabilitation
(“CDCR”) in 1997, Defendant Correctional Case
Records Specialist R. Frentz entered a $10, 000 restitution
fine into his CDCR record without proper documentation from
the trial court. (Compl. at 11-12.) From 1997 to 1999,
Defendants Ruth Young, C. Stewart and Beth of the Legal
Processing Unit of the CDCR failed to become aware of the
improper fine, and Defendant Delores Paschal failed to
properly supervise those Defendants. (Id. at 12-13.)
From 1999-2001, Defendants Correctional Case Records Managers
Kathy Moore and L. Kearns were deliberately indifferent to
the lack of proper authentication of the restitution fine.
(Id. at 13.) Plaintiff filed an administrative
appeal on January 18, 2010, challenging the failure to
properly authenticate his restitution fine, and was
interviewed on February 8, 2010 by Defendant Correctional
Case Records Supervisor E. Butler. (Id.) Defendant
Butler denied relief, and Plaintiff alleges that Butler's
supervisor Defendant J.T. Ochoa, his supervisor Defendant L.
McEwen, and Defendant J. Beard, the Secretary of the CDCR at
the time, all chose to remain deliberately indifferent to the
failure to properly authenticate the restitution order.
(Id. at 13-14.) On February 27, 2015, the Riverside
Superior Court found that Plaintiff had not been advised of
the imposition of the ...